USAID Chief Demands Abortion be Removed from UN COVID-19 Response Plan

NEW YORK — Acting Administrator for the U.S. Agency for International Development (USAID), John Barsa, sent a letter to United Nations Secretary-General António Guterres yesterday requesting references to sexual and reproductive health be removed from the UN’s Global Humanitarian Response Plan to fight COVID-19.

Akila Radhakrishnan, president of the Global Justice Center, had the following response:

“This is a disgraceful and dangerous attack on essential health services at the worst possible time. No matter what the US government says, abortion is a fundamental human right and reproductive care is always essential, including  during a pandemic. At a time when countless lives are at risk, the US has yet again decided to put its efforts into restricting healthcare, instead of expanding it.

“Administrator Barsa’s attack on abortion care during COVID-19 is an extension of the longtime US strategy to hold millions of dollars in lifesaving global aid hostage to serve its extreme anti-abortion agenda. Policies like the Global Gag Rule and the Helms Amendment that restrict funding to abortion services have devastated global health for decades. Now, they’re opportunistically using a pandemic to further their efforts.

“UN Secretary-General Guterres should be commended for recognizing the importance of reproductive rights in COVID-19 response plans. Instead, he’s being bullied by a US administration hellbent on decimating reproductive health and bodily autonomy at all costs.”

United Nations Secretary-General Releases Policy Brief on Human Rights & COVID-19

NEW YORK – United Nations Secretary-General António Guterres released a policy brief today on human rights and COVID-19.

Akila Radhakrishnan, president of the Global Justice Center, had the following response:

“The secretary-general’s policy brief on human rights in the midst of the COVID-19 pandemic is an important reminder of why and how human rights need to be at the center of not only immediate government responses to this crisis, but also the rebuilding process after the pandemic. Around the world, we have seen governments ignore fundamental rights in their COVID-19 responses. In some cases, states use it as a pretext to restrict and violate human rights.”

“Nowhere has this been more apparent than in the context of gender. As rates of gender-based violence around the world have spiked during the pandemic, countries have shown themselves either unprepared to provide support services or have completely failed to take this violence into account in their responses. Countries like the United States have also exploited the pandemic to restrict access to abortion services. An effort centered on human rights, as called for by the secretary-general, must include women in the design of responses and be responsive to their specific needs, such as sexual and reproductive rights.”

“It’s imperative that states take meaningful action to incorporate human rights in their responses, and where they fail, they must be held accountable.”
 

UN secretary-general says violence against women during coronavirus quarantine must stop

Excerpt of CNN articles that features GJC President Akila Radhakrishnan.

Akila Radhakrishnan, president of the Global Justice Center, said the call "recognizes how violence and crisis situations exacerbate existing inequalities in society and emphasize the need to center those most impacted in responses."

"However, to date, we have consistently seen that Covid-19 responses have inadequately taken women’s rights and human rights into account. And there’s been a lack of inclusivity in the groups responsible for crisis response and decision-making," she said.

Read the article

Jacob Blaustein Institute Panel on UN Secretary-General Prevention Agenda

GJC President Akila Radhakrishnan spoke at this event hosted by the  Jacob Blaustein Institute for the Advancement of Human Rights .

Panelists:
Mr. Volker Türk, Assistant Secretary-General for Strategic Coordination 
Mr. Ben Majekodunmi, Chief of Equality, Development and Rights Section, OHCHR
Ms. Akila Radhakrishnan, President, Global Justice Center

Opening remarks by Ms. Danica Damplo, Universal Rights Group NYC

 

UN Secretary-General Delivers Call to Action on Human Rights

NEW YORK – United Nations Secretary-General António Guterres delivered a call to action today on human rights in an address to the Human Rights Council.

Akila Radhakrishnan, president of the Global Justice Center, had the following response:

"The Secretary-General’s call to action is a welcome effort to re-center human rights into the work of the United Nations. Particularly important is its specific area of focus on gender equality and equal rights for women. Still, it is equally important that gender equality is integral to all focus areas as a cross-cutting issue.

“With the UN’s recent failure to adequately respond to the serious violations against the Rohingya in Myanmar in mind — as documented in the UN’s own internal report by Gert Rosenthal — it is essential that this call to action translates to meaningful action. It’s insufficient for the UN to pay mere lip service to the concept of human rights. Rather, the call to action should be used to fundamentally shift the UN’s culture and ensure that all parts of the system work to promote, not suppress, human rights.”

Letter to UN Security Council members regarding Myanmar’s Independent Commission of Enquiry and the Provisional Measures ordered by the International Court of Justice

Your Excellency,

We are writing to you in light of the recently published summary of the final report of Myanmar’s Independent Commission of Enquiry (ICOE), which was issued the same week that the International Court of Justice (ICJ) ordered Myanmar to take immediate action to prevent genocide against the country’s persecuted Rohingya minority. In particular, we would like to raise grave concerns regarding the ICOE’s: (1) independence and impartiality; (2) methodology; and (3) flaws in narrative and findings.

The ICOE’s independence and impartiality have been seriously undermined by its reliance on the Office of the President of Myanmar for financial and technical support, as well as by the composition of the Commission itself, which includes at least one official directly implicated in the bulldozing of Rohingya villages damaged during the 2017 crisis in Rakhine State. The executive summary of the ICOE’s report also provides no information as to what sources and materials were relied upon beyond individual interviews, nor how the ICOE corroborated and verified this information, making it impossible to assess the quality of their methodology. Crucially, the ICOE did not interview a single Rohingya refugee in Cox’s Bazar, Bangladesh, regarding the circumstances that resulted in over 700,000 people fleeing the country. Finally, there are serious flaws and misrepresentations in the ICOE’s narrative of the crisis in Rakhine State, including disturbing inaccuracies and omissions in relation to mass rape and widespread sexual violence directed at Rohingya women and girls during the military’s so-called “clearance operations.”

Download the Full Letter 

Iraq: Submission to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW)

I. Introduction

1. In advance of the Committee on the Elimination of Discrimination against Women’s (Committee) forthcoming review of Iraq, it is critical that the Committee pay particular attention to the need for fundamental reform of Iraq’s criminal legal system in order to achieve justice for Daesh’s victims, and more broadly for the women and girls of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.

Download the Full Submission

United States: Submission to the United Nations Universal Periodic Review

Summary

During the United States’ (“US”) second-cycle Universal Periodic Review (“UPR”), multiple states made recommendations concerning US abortion restrictions on foreign assistance, including the Helms Amendment. The US has failed to take any action on these recommendations; in fact, in 2017 the Trump administration further entrenched and expanded the scope of these policies with the reinstatement of the Global Gag Rule (or “GGR,” officially termed “Protecting Life in Global Health Assistance”). It should be noted that when the GGR is in effect its repeal tends to be the sole focus of advocates and policymakers; however, it is important to highlight that the long-standing pernicious statutory restrictions, including the Helms Amendment, enable the GGR, cause their own unique harms, as well as compound those of the GGR, and their repeal must also be the subject of attention. This submission highlights continuing concerns over these US policies which impose blanket prohibitions on abortion services and speech, in violation of US obligations under international humanitarian law, international human rights law, customary international law, and UN Security Council Resolutions.

Download the Full Submission

Beijing+25: Push Back Against the Pushback on Women’s Rights

By Maryna Tkachenko

Next year, the international community will mark the 25th anniversary of the Fourth World Conference on Women. Back in 1995, the adoption of the Beijing Declaration and Platform of Action was celebrated as a promising commitment to gender equality, development, and peace. As Hillary Clinton declared that “human rights are women's rights and women's rights are human rights, once and for all,” the world witnessed a turning point for the global agenda on the advancement of women. A quarter of a century later, the fight to empower all women and girls and achieve gender parity is far from over. In the midst of growing backlash against women’s equality, shaping the Beijing+25 agenda must be a priority.

Leading up to the Beijing+25 conferences in 2020—which will be hosted in Mexico City and Paris—we must focus on the key issues surrounding women’s rights. Access to sexual and reproductive health rights around the world must be at forefront of the conversation,  in addition to fighting the persistence of gender discrimination, sexual violence, and oppression. Next year’s agenda cannot ignore the Global Gag Rule, abortion services for women and girls raped in war, and women’s right to be free from gender-based violence and degrading treatment. None of this can be done without implementing a feminist approach to humanitarian aid.

Much More Than Language: How the US Denied Survivors of Rape in Conflict Lifesaving Care

Excerpt of Women Under Siege op-ed by GJC Deputy Legal Director Grant Shubin.  

On Wednesday, April 23, 2019, the UN Security Council adopted Resolution 2467 during the Council’s annual Open Debate on Conflict-Related Sexual Violence. .

After months of German-led negotiations, passage of the Resolution ultimately came down to sexual and reproductive health (SRH)—specifically, whether the U.S. would veto its inclusion in the final text.

The U.S. justified its position by claiming that SRH is a euphemism for abortion services. Not only is this not true—SRH includes, among other things, contraception, safe abortion services, HIV prevention, and prenatal healthcare—but even if it were, abortion services for survivors of sexual violence save lives.

Unsafe abortion causes the deaths of 47,000 people each year and leaves another 5 million with some form of permanent or temporary disability. They may suffer complications, including hemorrhage, infection, perforation of the uterus, and damage to the genital tract or internal organs. In fact, the consequences of denying abortion services have been found to be so severe that it can amount to torture and other inhuman or degrading treatment.

The international community cannot become accustomed or complacent to the Trump administration’s use of domestic politics to hold international rights hostage. Because it is more than just words that are given up last minute on the floor of the Security Council—it’s women’s lives.

Read the Full Op-Ed

UN Security Council Adopts Resolution 2467

FOR IMMEDIATE RELEASE – April 23, 2019

[NEW YORK, NY] – Today, the United Nations Security Council adopted Resolution 2467 on Women, Peace and Security. Although the resolution purports to address the needs of victims of sexual violence in conflict, it contains no direct references to reproductive health—a key component of necessary and comprehensive medical care. This last-minute compromise was made to avoid a certain veto by the United States government.

"The Prosecutors" Screening at the United Nations

From April 25, 2019 18:15 until 20:00

At United Nations Headquarters, New York City, CR11

Speakers:

  • H.E. Ms. H. Elizabeth Thompson, Permanent Representative of Barbados to the United Nations
  • Pramila Patten, Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict
  • Karim Khan QC, Special Adviser and Head of UN Investigative Team to promote accountability for crimes committed by
  • Susana SáCouto, Director, War Crimes Research Office, American University Washington College of Law
  • Leslie Thomas, Director and Producer

Overview:

The Prosecutors is a documentary that tells the story of three dedicated lawyers who fight to ensure that sexual violence in conflict is not met with impunity. Filmed over five years on three continents, it takes viewers from the Democratic Republic of Congo to Bosnia and Herzegovina to Colombia on the long journey towards justice.

The Global Justice Center is proud to co-sponsor this event alongside the Permanent Missions of the United Kingdom, Colombia, Canada, Chile and Costa Rica to the UN and Women’s Initiatives for Gender Justice. Join us for a 30-minute screening of The Prosecutors, followed by a panel about prosecuting sexual violence in conflict. 

Iraq: Submission to the United Nations Universal Periodic Review

Submission to the UN Human Rights Council

Universal Periodic Review – 34th Session

Iraq

I. Introduction

  1. In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that the Council pay particular attention to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.
  2. In the last Universal Periodic Review cycle for Iraq, multiple recommendations were made and accepted by the country with respect to ensuring national legislation was fully in line with international standards, combatting discrimination against women in law and in practice, and guaranteeing respect for international humanitarian law and human rights. Iraq has failed to take meaningful action on these recommendations.
  3. This submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.

Download the Full Submission

CSW Side Event: Working Towards Greater Implementation of 1325 – Models of Best Practice States Parties and Civil Society

From March 11, 2019 10:30 until 12:00

At New York City Baha'i Center, 866 UN Plaza

Speakers:

  • Tia Bown, NAWO YWA
  • Grant Shubin, Deputy Legal Director Global Justice Center
  • WILPF activists from Cameroon and Niger
  • Rugya Muttawa, Founder Hope Organisation Libya

Overview:

UNSRC 1325 was passed and ratified in 2000, more than 18 years later and with numerous related resolutions since, there is still a way to go to ensure the full implementation of 1325.  Human Rights violations in conflict zones are well documented and much of the vision of 1325 remains unrealized.

Young women are often subject to double marginalization – as women, and as young people. In many societies and families, they are the last to eat, to speak, to receive an education. They do not have a voice, and only speak when spoken to. With little or no education or training, young women and girls are relegated to caretaking, cooking, childbearing, collecting firewood and fetching water – the unpaid labour, which is often not regarded as important by the society, and does not provide the women with financial means of their own. Conflict aggravates this situation. We will therefore have a voice of a young woman from the NAWO Young Women’s Alliance WPS network.

Civil society was active in the creation of 1325 and has remained committed and active since in its implementation despite lack of resources.  There are numerous examples from civil society from which we can learn to increase implementation elsewhere in addition to understanding better obstacles and challenges.  Representatives from civil society working at policy level and on the ground will share perspectives.

States Parties, have to varying degrees, supported and implemented 1325. Hearing from them their view of success and their learning in implementation, will take forward the discourse on this important issue.

The event will provide time for discussion to learn from the expertise in the room, especially in preparation for the 20th anniversary next year.

Brain Trust: Legal Limits to the Use of the Veto

From March 8, 2019 9:00 until 17:00

At Foley Hoag, LLC

Question at Issue:Are there legal limits to the use of the veto by the Permanent Members of the U.N. Security Council blocking action in the face of genocide, crimes against humanity or war crimes? Or is the veto in such circumstances a carte blanchethat can be utilized at the complete discretion of the permanent members?

Proposition:There arelegal limits to the use of the veto power in the face of genocide, crimes against humanity or war crimes. Three arguments support this conclusion:

  1. The veto power derives from the UN Charter, which is subsidiary to jus cogensnorms. Thus, a veto that violates jus cogensnorms, or permits the continued violation of jus cogensnorms, would be illegal or ultra vires. The Charter (and veto power) must be read in a way that is consistent with jus cogens.
  2. The veto power derives from the UN Charter, which states in Article 24(2) that the Security Council “[in] discharging [its] duties” “shall act in accordance with the Purposes and Principles of the United Nations.” A veto in the face of a draft resolution aimed at curtailing or alleviating the commission of genocide, crimes against humanity or war crimes does not accord with the Charter’s purposes and principles.
  3. A permanent member of the Security Council that utilizes the veto power also has other treaty obligations, such as those under the Genocide Convention, which contains an obligation to “prevent” genocide. A Permanent Member’s use of the veto that would enable genocide, or allow its continued commission, would violate that state’s legal obligation to “prevent” genocide. A similar argument can be made as to allowing the perpetration of at least certain war crimes, such as “grave breaches” and violations of Common Article 3 of the 1949 Geneva Conventions. (Given that under Article 103 of the Charter, the Charter trumps inconsistent treaty obligations, this argument may only apply where treaty obligations also embody jus cogensnorms or accord with the Charter’s purposes and principles.) Alternatively, these treaties and the veto power could (and should) be read consistently, so that there is no conflict, making article 103 inapplicable.

Goal of Project:To ensure that the UN Security Council is able to act in the face of genocide, crimes against humanity and/or war crimes; therefore, to have the members of the General Assembly request an Advisory Opinion from the International Court of Justice (ICJ): Are there legal limits to the use of the veto power in the face of genocide, crimes against humanity or war crimes?

Initial Goal of Initiative:To form a group of NGOs and States who support this initiative and would be willing to work to convince the General Assembly to make this request of the ICJ.

Alternative Concept:To put some of these legal concepts directly into a GA resolution that notes the legal obligations related to genocide, crimes against humanity and war crimes, and calls for veto restraint (and not ask for an Advisory Opinion).

    —Professor Jennifer Trahan, NYU Center for Global Affairs, This email address is being protected from spambots. You need JavaScript enabled to view it.

Supporting Individuals:

  • Hans Corell, former Under-Secretary General for Legal Affairs
  • Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia & the International Criminal Tribunal for Rwanda,
  • Navanethem (“Navi”) Pillay, former High Commissioner for Human Rights
  • Andras Vamos-Goldman, co-founder & former Executive Director, Justice Rapid Response
  • David M. Crane, former Chief Prosecutor, Special Court for Sierra Leone
  • Judge Christine Van den Wyngaert, formerly International Court of Justice (ad hoc), International Criminal Tribunal for the former Yugoslavia, and International Criminal Court; presently Kosovo Specialist Chambers (signing in a personal capacity)

Supporting NGOs:

  • The Global Centre for the Responsibility to Protect
  • The International Center for Transitional Justice
  • The World Federalist Movement - Institute for Global Policy
  • Parliamentarians for Global Action
  • Open Society Justice Initiative
  • Global Justice Center
  • Syrian Justice and Accountability Center
  • Moroccan National Coalition for the International Criminal Court
  • Lawyers for Justice in Libya
  • Women’s Initiatives for Gender Justice

 

Letter to the CEDAW Committee: Supplementary information to Myanmar’s Report on an exceptional basis, scheduled for review by the CEDAW Committee at its 72nd Session

The Committee on the Elimination of Discrimination against Women
Office of the United Nations High Commissioner for Human Rights
Palais Wilson - 52, rue des Pâquis
CH-1201 Geneva (Switzerland)

Re: Supplementary information to Myanmar’s Report on an exceptional basis, scheduled for review by the CEDAW Committee at its 72nd Session

Dear Committee Members,

This letter supplements and responds to particularly concerning sections of the 6 February 2019 Exceptional Report submitted by Myanmar,[1] which is scheduled for review by the Committee on the Elimination of All Forms of Discrimination against Women (“Committee”) on February 22, 2019 during its 72nd Session.

It is the view of the undersigned organizations that Myanmar’s submission raises serious doubts as to its willingness and ability to effectively investigate and prosecute those responsible for international crimes committed against the Rohingya, especially sexual and gender-based violence. Myanmar’s blanket denials that such crimes occurred and the answers presented in the report underscore not only that accountability will have to be achieved on the international level or before other domestic authorities, but also that there is a real risk of Myanmar aiming to discredit or jeopardize such accountability efforts. In addition to these overarching concerns, we seek to bring the Committee’s attention to two major areas of concern: (1) Myanmar’s refusal to acknowledge or accept responsibility for conflict, human rights abuses, and displacement; and (2) Myanmar’s inability and lack of will to meaningfully investigate and hold those responsible accountable.

  1. Refusal to acknowledge or accept responsibility for conflict, human rights abuses and displacement

Myanmar has consistently refused to accept responsibility for the acts of its Security Forces in Rakhine State and continues to deny the identity of the Rohingya. Myanmar’s Exceptional Report to this Committee is consistent with this unlawful position.

  • Para. 2 - “(The) report refers to the Muslim population in Northern Rakhine as “Muslims” or “the Muslim community in Rakhine”. This group does not include the Kaman Muslims. They are simply referred to as “Kaman”. As in the Annan report, neither “Bengali” nor “Rohingya” is used in referring to the Muslim community.”

While the Committee explicitly requested Myanmar to submit a report on the situation of Rohingya women and girls, Myanmar’s refusal to explicitly report on Rohingya women and girls should be understood as a continuation of its policy to deny the group’s identity and continue discrimination, persecution, and targeting of the Rohingya as an ethnic group. While Myanmar aims to couch this definition as internationally accepted by highlighting the role played in the Commission by former UN Secretary-General Kofi Annan, the Commission’s report makes clear that this nomenclature was utilized “in line with the request of the State Counsellor.”[2] In fact, Myanmar’s failure to recognize the Rohingya as a group has been widely criticized by human rights experts, including this Committee and the Special Rapporteur on the situation of human rights in Myanmar, as a violation of the group’s right to self-identify.

  • Para. 5 - “The seeds of fear sown by the terrorists led to massive displacement of people internally and to neighbouring Bangladesh.”

The characterization of the mass and forced displacement of over 725,000 Rohingya to Bangladesh since August 2017 as the result of the actions of “terrorist” groups is both disingenuous and indicative of Myanmar’s unwillingness to accept responsibility for its actions. According to the UN Fact-Finding Mission on Myanmar (“Myanmar FFM”), “[o]n 25 August 2017, the Arakan Rohingya Salvation Army (ARSA) coordinated attacks on a military base and up to 30 security force outposts across northern Rakhine State, in an apparent response to increased systematic oppression of Rohingya communities by Myanmar and with the goal of gaining global attention.”[3] However, while acknowledging these attacks by ARSA, the Myanmar FFM firmly establishes that the reason for the displacement of over 725,000 Rohingya was the grossly disproportionate response by Myanmar security forces to these attacks, which targeted the entire Rohingya community and resulted in the mass destruction of Rohingya villages.[4]

  • Para. 11 - “Despite repeated accusations that Myanmar Security Forces committed a campaign of rape and violence against Muslim women and girls residing in Rakhine State, there is no evidence to support these wild claims.”

The categorical dismissal of the extensive documentation of rape and sexual violence as “wild” and with “no evidence” is perhaps the strongest illustration of Myanmar’s unwillingness to acknowledge and take responsibility for the acts committed by its Security Forces. As this Committee is well aware, the Security Forces’ systematic sexual violence in Rakhine State has been extensively documented not only by the Myanmar FFM but a range of other actors, including the United States State Department[5] and numerous human rights groups[6]. Furthermore, for decades the military has used sexual violence as a tactic in its campaigns against ethnic minorities in other parts of Myanmar. Similarly, these actions have long been met with official denials and impunity for perpetrators.

Even more egregious, Myanmar offers no support for its assertion that “no evidence exists,” nor does it detail any efforts or investigations that were taken to reach this conclusion. While the Report touts the signing of a joint communiqué with the Special Representative of the Secretary-General on Sexual Violence in Conflict, it remains unclear how Myanmar will meaningfully give effect to the commitments on accountability in the joint communiqué while it continues to insist that no problems exist and no crimes have been committed.

  • Para. 54 - “The complexities and challenges in Rakhine should not be viewed within a narrow lens of human rights for one particular community alone. This may tanamount [sic] to discrimination.”

The suggestion that calling on Myanmar to account for its treatment of one minority group constitutes discrimination is yet another indicator that it will continue to deflect responsibility for acts against the Rohingya under any apparent guise.

II. Inability and lack of will to meaningfully investigate and hold those responsible accountable

Despite the assurances in the report, Myanmar has unequivocally failed to demonstrate any willingness to investigate or hold perpetrators – civilian and military alike – accountable, compounding its failure to acknowledge and accept any form of responsibility for its acts.

  • Para. 8 - “The Government of Myanmar does not condone human rights violations. Nor does it espouse a policy of ethnic cleansing and genocide. It has therefore established an Independent Commission of Enquiry to establish the facts concerning the situation in Rakhine. The Commission is comprised of two international personalities who are well-versed in matters of human rights and Myanmar nationals with judicial background and vast experience in international organizations on 31 August 2018 to investigate the violations of human rights and related issues following the ARSA terrorist attacks in Rakhine State. The Commission is tasked to investigate allegations of human rights violations and related issues following the terrorist attacks by the Arakan Rohingya Salvation Army in Rakhine State with a view to seeking accountability and formulating recommendations on steps to be taken to ensure peace and stability in Rakhine State. The ICoE has now invited complaints or accounts with supporting data and evidence related to allegations of human rights violations in Rakhine State. ICoE call for submissions was actual from 31 August 2019 [sic] to 28 February 2019.”

While eight ad-hoc commissions and boards have been set up by the Myanmar authorities since 2012 with regard to the situation in Rakhine State, the Myanmar FFM determined that none meet the standards of an “impartial, independent, effective and thorough human rights investigation.” The newly constituted Independent Commission of Enquiry for Rakhine has done nothing to allay these concerns. One of the four Commissioners is a Myanmar Government official who has previously stated that Myanmar had “no intention of ethnic cleansing,” and the chairperson has stated that the Commission will not “blame or finger-point,” which is at odds with Myanmar’s own statement above that the Commission will seek accountability.

Additionally, the framing of the mandate of the Commission with a focus on “terrorist” attacks is a clear indicator that the work of the Commission will likely be biased and unbalanced. In fact, if the assertions made by Myanmar in this report, such as the one discussed above placing the responsibility for forced displacement on “terrorist actors,” are representative, it is unlikely that the work of the Commission will be any different than its predecessors.

  • Para. 9 - “Myanmar is both willing and able to investigate any crimes and violations of human rights that took place on its territory.”

Structural barriers, as well as a systematic climate of impunity in the country, clearly demonstrate that Myanmar is neither willing nor able to genuinely carry out any investigations and prosecutions related to international crimes committed by its Security Forces.

Myanmar’s civilian government is unable to hold perpetrators accountable due to structural barriers that preclude the possibility of justice. Myanmar lacks domestic legislation on international crimes, rendering its court system unable to prosecute any potential crimes against humanity or genocide. Furthermore, constitutionally-imposed limits on the power of the civilian government over the military, coupled with constitutional protections for the military from prosecution (guarantees of immunity and exclusive jurisdiction in military courts with the Commander-in-Chief able to overturn any decisions unilaterally), ensure that the military will be immune from accountability in Myanmar. Without significant domestic legal and constitutional reforms, Myanmar’s national judicial system is neither available nor able to carry out proceedings for crimes committed by its Security Forces against any ethnic group, including the Rohingya.

Furthermore, as discussed extensively in this letter, Myanmar’s authorities—civilian and military alike—have also failed to demonstrate any willingness to investigate or hold perpetrators accountable. In fact, Myanmar has variously denied any wrongdoing and failed to conduct genuine investigations or impose sanctions or accountability on perpetrators of these crimes.

  • Para. 23 - “In Myanmar, the Penal Code was enacted in 1861. It establishes a legal framework in order to protect and eliminate crimes, including sexual assaults, rapes, human trafficking, domestic violence, and other offenses against women and girls.”

The existing legal framework in Myanmar, including the Penal Code, is insufficient to ensure justice, protection, and rehabilitation for victims. As a preliminary point, the Constitution shields the military from prosecution in civilian courts, thus the Penal Code would not be the dispositive legal framework. However, if cases were taken up in civilian court, Myanmar’s Penal Code and other criminal procedures, which reflect outdated stereotypes and do not comport with international standards, would be insufficient to ensure justice.

For instance, while Section 375 of the Penal Code includes non-consensual “sexual intercourse” as a criminal element of rape, the undefined requirement of “penetration” as a component of “sexual intercourse” leaves the overall definition of rape ambiguous, for instance in cases of forced non-penile penetration. Nor does the Penal Code include any specific provisions concerning unwanted sexual touching or sexual harassment outside the context of sexual intercourse, although Section 354 does criminalize assault intended to “outrage [a woman’s] modesty” (a troubling example of outdated and ambiguous language justifying scrutiny of a woman’s “modesty” as a pre-condition for access to justice). The definition of rape under Section 375 applies only to women who are not married to their attacker; the Penal Code neither prohibits nor punishes the rape of women by their husbands, unless the victim is less than 15 years of age.

Additionally, despite Myanmar’s assertion, the Penal Code does not criminalize domestic violence or provide a legal mechanism allowing women to obtain restraining orders to protect them against aggressors. While a long-negotiated comprehensive violence against women law has been promised, it has yet to be introduced in Parliament after nearly four years, and consultations and drafts have indicated that the law will uphold the problematic definitions of crimes discussed above, including rape and marital rape.

Meanwhile, neither Myanmar’s Code of Criminal Procedure nor its Evidence Act contains comprehensive substantive protections for the integrity and dignity of women during the investigation and prosecution of cases involving violence against women.  The law also permits judges to both compel victims of rape to testify against their attackers and to draw an adverse inference from a victim’s refusal to answer questions about the rape.  The “inconsistencies and vagaries” of the legal process is one cause of low reporting of violence.

  • Para. 30 - “Myanmar National Human Rights Commission officially transmitted complaints on violation of human rights it receives to the authorities concerned to take follow-up action in line with regulations and procedures and relevant laws.” and para. 32 - “The Government also affirms that it will help Muslim displaced persons who have fled to Bangladesh to file cases concerning alleged human rights abuses. Those wishing to file grievances may do so from their current location but will be required to attend a trial in Myanmar. The Government will assist them in so doing.”

Administration of justice is particularly weak in Myanmar[7] and neither Myanmar’s domestic courts nor its National Human Rights Commission have the capacity, impartiality, and independence required to deliver justice.

Myanmar’s judiciary is seen as “inactive and subordinate to the military,” with “allegations of judicial corruption, inefficiency, and susceptibility to executive influence [that are] so widespread that they cannot be sensibly discounted.”[8] State actors, including the executive and the military, have been known to apply improper pressure on the judiciary and prosecutors in cases related to gross violations of human rights, as well as political and civil cases.[9] As a result, even if cases were transferred from military court to civilian court, those proceedings would not be free from the military’s power and influence.

Attempts to utilize formal court or accountability proceedings are often met with reprisals and raise serious concerns about the safety of those who would opt to utilize formal processes facilitated by the government, whether the National Human Rights Commission or other venues. The case of Brang Shawng, the father of a fourteen-year-old girl who was killed by the military, is a case in point.[10] While he never saw accountability for his daughter’s killing, he himself was prosecuted for filing false charges and was embroiled in legal proceedings for over eighteen months. Fear of reprisals, along with widespread corruption and generally low levels of judicial competence, has resulted in a lack of public trust in the legal system.[11] Fears of reprisals are only likely to be heightened in those who were attacked and forcibly displaced by Myanmar’s Security Forces, rendering Myanmar’s promise to “assist” those outside the country in filing human rights complaints in Myanmar’s courts, with no assurances of safety and well-being, empty at best.

III. Recommendations

  • Immediately cease military and security operations against the Rohingya in Rakhine State and in other ethnic areas, particularly Shan and Kachin states; issue orders to cease all acts of rape and sexual violence; and permit humanitarian access to the State.
  • Initiate impartial and independent investigations into violations of international criminal, human rights, and humanitarian law, possibly amounting to international crimes, with a view to ensuring justice and accountability and comprehensive and transformative reparations to affected individuals and populations.
  • Cooperate with and facilitate access for all international human rights and accountability institutions and mechanisms, including the Myanmar FFM, the Special Rapporteur on the situation of human rights in Myanmar and other UN special procedures, the International Criminal Court, and international human rights organizations.
  • Ratify the Rome Statute of the International Criminal Court and provide retroactive jurisdiction to the entry into force of the Statute, July 1, 2002.
  • Amend the 2008 Constitution to bring the military and security forces under civilian oversight, and repeal provisions granting the military actors impunity for human rights abuses, including Article 445.
  • Expeditiously pass a Prevention (and Protection) of Violence Against Women Law in line with international human rights standards, eliminate contradictory Penal Code provisions including the definition of rape and marital rape exceptions, and ensure jurisdiction over the military for crimes under the ambit of the law in civilian courts.
  • Amend the 1982 Citizenship Act to repeal discriminatory provisions based on national origin, religion, and ethnicity and restore citizenship to those whose citizenship was stripped under the law.
  • Guarantee the safe return of Rohingya and other displaced ethnic minorities, including the repatriation of any confiscated land and ensure the equal participation of women in all decision making processes related to these efforts.

Respectfully submitted by:

European Center for Constitutional and Human Rights
Global Justice Center
Women’s Initiatives for Gender Justice

Download the Letter

Annexes:

  1. Global Justice Center, Discrimination to Destruction: A Legal Analysis of Gender Crimes Against the Rohingya, September 2018, available at: http://globaljusticecenter.net/files/Discrimination_to_Destruction.pdf
  2. Naripokkho, Women’s Initiatives for Gender Justice, Ms. Sara Hossain, European Center for Constitutional and Human Rights, Amicus Curiae Observations Pursuant to Rule 103, available at: https://www.icc-cpi.int/CourtRecords/CR2018_02944.PDF  
  3. Global Justice Center, Fact Sheet: Structural Barriers to Accountability for Human Rights Abuses in Burma, October 2018, available at: http://globaljusticecenter.net/files/Structural-Barriers---Burma.pdf.

[1] Government of Myanmar, Report on an exceptional basis, U.N. Doc. CEDAW/C/MMR/4-5/Add.1 (Feb. 4, 2019) [hereinafter “State Report”].

[2] Rakhine Advisory Commission, Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine: Final Report of the Advisory Commission on Rakhine State, p. 12 (Aug. 2017).

[3] Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, 750, U.N. Doc A/HRC/39/CRP.2 (Sept. 17, 2018).

[4] Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, ¶ 751, U.N. Doc A/HRC/39/CRP.2 (Sept. 17, 2018).

[5] United States Department of State, Documentation of Atrocities in Northern Rakhine State, 24 September 2018, https://www.state.gov/j/drl/rls/286063.htm.

[6] Public International Law and Policy Group, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State, https://www.publicinternationallawandpolicygroup.org/rohingya-report.

[7] Crouch, Melissa, The Judiciary in Myanmar (March 3, 2016). UNSW Law Research Paper No. 2016-10. Available at SSRN: https://ssrn.com/abstract=2747149 or http://dx.doi.org/10.2139/ssrn.2747149.

Progress Rep. of the Special Rapporteur on the situation of human rights in Myanmar to the Human Rights Council (Tomás Ojea Quintana), ¶ 12, U.N. Doc. A/HRC/19/67 (March 7, 2012); Nick Cheesman & Kyaw Min San, Not Just Defending; Advocating for Law in Myanmar, 31 Wis. Int’l L.J.  714,  available at http://www.Myanmarlibrary.org/docs19/Cheesman_KMS__Not_just_defending-ocr-tpo.pdf; International Bar Association’s Human Rights Institute, The Rule of Law in Myanmar: Challenges and Prospects, (December 2012) at 58, [Hereinafter IBA 2012 Report], available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=DE0EE11D-9878-4685-A20F-9A0AAF6C3F3E.

[8] Report of the Special Rapporteur on the situation of human rights in Myanmar, Human Rights Council

Thirty-first session, ¶ 20, 21, U.N. Doc. A/HRC/34/67 (March 1, 2017) Report of the Special Rapporteur on the situation of human rights in Myanmar, Human Rights Council, Thirty-first session, ¶ 15, 16, U.N. Doc. A/HRC/31/71 (March 18, 2016). IBA 2012 Report at 59. See also  International Commission of Jurists, Country Profile: Myanmar, (June 2014) 11 available at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/06/CIJL-Country-Profile-Myanmar-June-2014.pdf; see also International Commission of Jurists, Right to Counsel: the Independence of Lawyers in Myanmar, (June 2014) at 40 available at  http://www.burmalibrary.org/docs16/ICJ-MYANMAR-Right-to-Counsel-en-red.pdf

[9] International Commission of Jurists, Achieving Justice for Gross Human Rights Violations in Myanmar: Baseline Study at 19 (Jan. 2018), available athttps:.//www.icj.org/wp-content/uploads/2018/01/Myanmar-GRA-Baseline-Study-Publications-Reports-Thematic-reports-2018-ENG.pdf.

[10] International Commission of Jurists, Achieving Justice for Gross Human Rights Violations in Myanmar: Baseline Study at 33.

[11] Justice Base, Behind Closed Doors: Obstacles and Opportunities for Public Access to Myanmar’s Courts (May 25, 2017), available at http://myjusticemyanmar.org/sites/default/files/Justice-Base-Behind-Closed-Doors.compressed-1.pdf.

Accountability for conflict-related sexual violence as a central pillar for prevention - Arria Formula meeting of the UN Security Council

From Feb. 8, 2019 10:00 until 13:00

At United Nations Headquarters, Trusteeship Council Chamber

The Permanent Missions of Germany, Belgium, Dominican Republic, Equatorial Guinea, France, Kuwait, Peru, Poland, South Africa and the United Kingdom will co-host an Arria Formula meeting of the UN Security Council on the preventive impact of criminal accountability for conflict-related sexual and gender-based violence on Friday, 8 February 2019, at 10:00 am in the Trusteeship Council Chamber. The meeting will be chaired by Ms. Katarina Barley, Federal Minister of Justice and Consumer Protection of Germany.

"Sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security." (Extract from Security Council Resolution 1820).

Members of the UN Security Council and UN Member States explore how each can more effectively integrate criminal accountability for sexual violence in conflict into the prevention agenda, including into conflict resolution, transitional justice and peacebuilding.

Briefers:

  • Tonderai Chikuhwa, Chief of Staff and Senior Policy Advisor, Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
  • Toussaint Muntazini, Prosecutor of the Special Crimes Court in the Central African Republic
  • Akila Radhakrishnan, President of the Global Justice Center

Chair:

  • Katarina Barley, Federal Minister of Justice and Consumer Protection of Germany

Download the Concept Note

 

The UN General Assembly Ignores Gender in Debates on the Responsibility to Protect

By Hannah Sarokin and Brandon Golfman

The 90s were a time of multiculturalism, grunge music, Friends, and the world-wide web.  It was also a decade marked by devastating humanitarian crises, including widespread sexual and gender-based violence.  From Rwanda to the Balkans, mass conflict and genocide rattled global security and peace processes and shed light on the resounding failure of the international community to act.  The principle of the Responsibility to Protect (R2P) was born from such atrocity.  

First addressed by the UN during the World Summit in 2005, R2P is the collective recognition that protecting vulnerable civilians from genocide, war crimes, ethnic cleansing, and crimes against humanity is both a domestic and international obligation.  The three pillars of R2P oblige states to protect their populations from such atrocities, require the international community to assist in that protection, and if a state has failed, other states must take appropriate actions to intervene.  Despite a unanimous commitment to R2P at the World Summit, there remains a severe gap in domestic implementation, especially in regards to gender.

Submission to the UN Human Rights Council for US UPR

GJC sends a mid-term report submission for the Universal Periodic Review of the United States of America. The report examines the restrictions that the US puts on foriegn aid regarding the provision of abortion services and the ways those restrictions violate international law.

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