Mass Atrocity Crimes

This program aims to ensure that individuals and states are held accountable for the commission of gender-based mass atrocities, including genocide, war crimes, and crimes against humanity.


How can international humanitarian law bind non-state actors?

Interstate armed conflicts are rare nowadays but intrastate armed conflicts have been on the rise in recent years. Intrastate conflicts often involve non-state actors and pose an important question for the international community – how can non-government parties be bound under the international humanitarian law (“IHL”).  

International Humanitarian Law applies to all the signatory States of the Geneva Conventions of 1949 and their Additional Protocols of 1977 but it also binds non-state actors: private citizens, armed groups, national liberation movements, and international organizations.  It has been established that since IHL provides rights and special protections to private citizens in conflict, it also confers obligations, as demonstrated by the Nuremberg trials, international tribunals, or recent ICC decision to sentence Congolese warlord Thomas Lubanga to 14 years for using child soldiers and forcing them to commit atrocities. Several instruments also create IHL obligations on part of non-government armed or rebel groups – Common Article 3 of the Geneva Conventions, the Second Additional Protocol of 1977, and Article 8 paragraph 2 of the Statue of the International Criminal Court (“ICC”), whereas the First Additional Protocol applies to national liberation movements. And while there is no specific legal provision that binds international organizations under international humanitarian law, the ICC specifically stated that “an international organization is a subject of international law and, as such, is bound by all the obligations deriving from the general rules of international law.”

It is important to remember though that IHL does not apply to any instances of violence but only those non-international armed conflicts that satisfy organization requirements and reach certain level of intensity, and possibly duration. Mere riots, isolated acts of violence, protests, and single acts of terrorism do not constitute an armed conflict under international humanitarian law. Despite difficulties in proper identification of armed conflicts under IHL, currently there is no single legal body that provides armed conflict designation; rather the UN Security Council and the General Assembly call for application of IHL in certain conflict situations, implying existence of an armed conflict under IHL. Perhaps, the international community could benefit from a clearer statutory definition of an armed conflict or expanding IHL applicability to any instances of violence motivated by a specific goal.

The ICC Delivers its First Sentence: Sexual Violence Noticeably Missing from Congolese Warlord’s Conviction and Sentencing

On July 10, just 10 days after its 10th anniversary, the ICC delivered its first sentence.  The ICC sentenced Thomas Lubanga, a Congolese militia leader, to 14 years in prison for the recruitment and use of child soldiers as a part of his rebel army, the Union of Congolese Patriots, from 2002-2003.  Throughout that time, Lubanga and his army abducted, trained and used children to terrorize and kill villagers in the Ituri region of the DRC.  While the justices clearly agreed that Lubanga deserved to be sentenced, one of the three judges, Elizabeth Odio Benito of Costa Rica, wrote a dissenting opinion saying that the sentence had been too lenient.  Judge Benito suggested that the sentence should have been longer so as to properly reflect the extent of damage done to the child soldiers and their families.

One example of the type of damage that Judge Benito may have been referring to is sexual violence.  Among the crimes included in Lubanga’s trial, sexual violence was noticeably missing from the list. This was seemingly a product of the prosecutor’s shortcomings.  Presiding judge Adrian Fulford criticized the prosecution saying that “Not only did the former prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis.”  The ICC’s rules of procedure allow for additional crimes to be introduced and considered during the sentencing stage.  However, despite this capability, the judges determined that there was insufficient evidence presented to link sexual violence to the proven child soldier recruitment, and sexual violence therefore played no part in Lubanga’s sentence.

This glaring oversight, regardless of whether it be largely at the hands of the prosecution or the judges, is yet another example of the failure to recognize the plight of the female child soldier.  Female child soldiers are subjected to the same horrific conditions and treatment as all other child soldiers but suffer even further through sexual violence and diminished ability to escape.  Grace Akallo, a former child soldier in the Lord’s Resistance Army in Uganda described how she and other girls as young as 7 were given as wives, where they would then be regularly subjected to sexual abuse.  They were sent to fight at the front lines while pregnant, with children on their backs, and some were even left with no choice other than to give birth on the front lines.  There is undoubtedly a shared stigma among all child soldiers, but the female experience is significantly different from that of the male and failure to take additional measures to recognize this distinction is a failure to protect women’s rights.

Brigid Inder, executive director of the Women’s Initiative for Gender Justice pointed out the contradictory nature of the scenario because “the Rome Statute contains the most advanced articulation in international criminal law of acts of sexual violence committed, particularly in armed conflict situations, and yet the first case for the ICC didn’t include any charges for gender-based crimes.”  Judge Sang-Hyun Song, President of the ICC said that “the ICC promotes a model of gender-sensitive justice… the needs of women and children receive special attention in the ICC,” and that “international justice promises to serve as a warning to those who intend to exploit and abuse the most vulnerable members of our society that they will be tried, prosecuted and punished.”  While these remarks are hopeful and comforting, the recent performance by the prosecution and the sentence that followed demonstrated a weak showing that would hardly serve as an effective warning to other exploiters of vulnerable groups.  Lubanga’s sentence and the absence of sexual violence from the charges against him highlight the unfortunate ease with which women’s rights can be overlooked and this is unacceptable.  A lesson must be learned from the failure to distinguish and defend the specific rights of the female child soldier.  It is critical that in future ICC trials and sentencing, all parties involved take it upon themselves to ensure that women’s rights in any and all circumstances are protected and promoted, as a necessary prerequisite pursuant to the “gender-sensitive justice” that Judge Sang-Hyung Song spoke of.

When Times Get Tough, Women’s Rights Shouldn’t Suffer

Hard times happen. They can happen anytime and anywhere. They can happen on a scale as small as a community or family or as large as an entire region or country. The causes range from economic crises to armed conflicts and everything in between. In fact, the one thing that seems to be universal about hard times is that they lead to less respect for women’s rights.

In Nepal, girls are essentially sold into slavery when their families are struggling with debt. The ethnic Tharu practice a form of indentured servitude known as “kamlari”. Tharu families struggling with extreme poverty ease their debt burdens by leasing their daughters to higher caste landlords to use as servants for as little as $30 a year. Girls as young as six enter the system and are forced to do menial labor. These girls suffer a wide range of abuses, including beatings and rape, and are not allowed to go to school. Activists have been struggling to free girls from the kamlari system but the system has persisted in isolated parts of Nepal.

In Afghanistan and Pakistan, girls are traded as a form of dispute settlement. Daughters are given to rival parties to settle disputes in a practice known as “swara” or “vani”. Swara is used to settle crimes such as murder, adultery, and kidnapping. A daughter from the family of the perpetrator (usually the girl’s father or brother) is forced to marry into the family of the victim. The girls are often quite young and the men they are forced to marry are often significantly older. Swara brides are treated terribly by their in-laws and husbands. They are treated like servants, constantly taunted, frequently beaten, and sometimes even killed.

In Niger, there is a tradition of marrying girls off at a very young age. Niger has the world’s highest rate of child marriage with approximately 50% of girls marrying before the age of fifteen, with some as young as seven. Girls are married off in exchange for dowries, including livestock and cash, which can be very helpful for families struggling with poverty. The country is currently in the middle of a hunger crisis resulting from a severe drought. Therefore, families that were already poor are now finding it even more difficult to put food on the table and there is a legitimate fear that families will begin marrying off their daughters with greater frequency and at younger ages if the crisis continues. Child brides in Niger lead difficult lives. They are often married to men who are much older, they are unable to attend school, forced to have sexual intercourse, denied freedom, beaten, and often abandoned when their polygamous husbands take younger brides. Additionally, child brides tend to be impregnated long before their bodies are ready to bear children, which often leads to serious health problems and even death.

In Madagascar, girls are frequently forced into prostitution when their families don’t have enough money to survive. In the southern region of the island, they have what is called “tsenan’ampela” (literally girls market). Families send their girls to market towns without money, forcing them to prostitute themselves at the tsenan’ampela until they have enough money to buy food and supplies for the family.

In times of conflict, rape and sexual assault are frequently used against women as weapons of war. This is currently happening in Syria in the conflict between President Bashar al-Assad and anti-government forces. Women Under Siege has documented 81 instances of sexual assault since anti-government demonstrations began in March 2011. There is evidence that forces are targeting victims related to the Free Syrian Army as a way to punish the rebels with reports of soldiers going into houses looking for male members of the rebel forces and then raping the women. Many of the women have been killed after being assaulted, which is a tactic used in conflict zones to show complete control over the enemy.

The situations described above are just a handful of examples of how women and girls suffer disproportionately in times of hardship, and the list could go on and on. The list of excuses for these types of discrimination is equally long and includes explanations blaming culture, tradition, inevitability, and ignorance. However, the truth is that there is no excuse for sacrificing women’s rights in hard times. According to Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” This broad definition of discrimination against women means that for at least the 187 countries that are a party to CEDAW, there is an obligation to ensure that women’s rights are respected and that women do not suffer disproportionately in any circumstance, including times of hardship. As such, women and girls should never be turned into a commodity and sold off when their families need food and money, and they should never brutalized for crimes they have not committed or battles they have not fought. When times get tough, women should be given an equal say in finding a solution.

Will the UN Conference on the Arms Trade Treaty Actually Result in a Treaty?

The UN Conference on the Arms Trade Treaty (July 2-27) will conclude this week in New York, and member states and NGOs are scrambling to include last-minute changes and amendments to the document before the final is submitted to a vote by member states. The Treaty itself has taken years to draft and includes input from civil society groups as well as governments and intergovernmental organizations. The push for such an agreement was initiated by NGO’s and civil society groups concerned with the proliferation of weapons and the role that arms producers play in perpetuating armed conflicts in some of the poorest nations in the world. The fact that the Conference is taking place at all is a testament to the hard work and dedication not of governments or politicians, but of groups representing individuals and civilians who suffer most from the unmitigated international weapons trade.

Proponents of a strong ATT face significant obstacles in their quest to limit the international arms trade. The monetary value of the global arms market is estimated at $60 billion per year and many powerful states run highly lucrative arms industries that serve to enrich governments and elite officials both financially and in terms of political power and influence. Originally, the United States and other large countries expressed support for a strong treaty that included clear language prohibiting the export of arms to countries or governments with a history of using such weapons against their own populations or in the face of evidence that the weapons may be used for non-defensive purposes. Over the past two weeks, however, many states have begun to pull back their support for strong language and meaningful regulations.

While many were confident of the treaty language early in the Conference proceedings, there have been growing attempts to weaken the treaty’s language to a degree many find unacceptable. This is a troubling trend as it suggests that states may not be able to ultimately agree on treaty conditions and that members may ultimately fail to pass the treaty at all. States and NGOs that are proponents of a strong ATT argue that no treaty would be better than a weak treaty that fails to address the real concerns and dangers implicit in the international weapons trade. Further increasing the likelihood that member states will fail to pass an ATT is the fact that the United States ensured early in the process that any vote on an ATT must be voted for unanimously by all member states in order to take effect. Given these difficult circumstances, it looks to be increasingly unlikely that the UN will be able to agree on any meaningful ATT before the Conference comes to a close on Friday.

Post by: Adrian Lewis

Malawi Upholds International Law for the Sake of Economic Interests

Under the leadership of newly appointed president Joyce Banda, Malawi has refused to host the upcoming African Union summit due to its unwillingness to condone the ongoing impunity of Sudanese leader Omar al-Bashir, who is wanted by the International Criminal Court on charges of genocide, war crimes, and human rights atrocities committed in Darfur under his command. Although an ICC arrest warrant has been out for Bashir since 2010, he has repeatedly attended meetings and summits in a number of African countries over the past two years, including in Kenya, Ethiopia, Eritrea, Djibouti and Chad. Even the former Malawian president Bingu wa Mutharika welcomed Bashir at a regional economic summit last year. As the ICC has no law enforcement mechanism of its own, it relies on the local officials of member nations to apprehend individuals accused of crimes by the Court.

Bashir is wanted by the ICC for multiple international legal offenses as a result of his major role as Sudanese President in the atrocities in Darfur, which began in 2003 and resulted in the deaths of an estimated 300,000 people and the displacement of almost 4 million. In 2009, a warrant was issued for his arrest on five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape) and two counts of war crimes (intentionally directing attacks against a civilian population or against individual civilians not taking part in hostilities and pillaging). While the Court stopped short of issuing a warrant on charges of genocide, upon further investigation of the evidence, such a warrant was issued just a year later in July 2010. The effect of charging Bashir with the crime of genocide was to oblige all states party to the UN Genocide Convention (all UN member states) to arrest the accused upon entry into the country or stand in violation of the Convention by condoning impunity for genocide, a significant violation of the convention which could plausibly (and should) result in serious political, diplomatic, or economic consequences.

The July AU summit was set to be held in Lilongwe next month, but will now be moved to the Ethiopian capital of Addis Ababa. The decision came after President Joyce Banda threatened to arrest Omar al-Bashir upon his entry into Malawi, in accordance with the ICC warrant currently issued for his arrest. She has also declared her intention not to attend the meeting and to send Malawi’s vice president as the country’s representative at the summit. Banda has avoided questions as to whether her absence at the meeting is in protest of Bashir’s attendance, and she has repeatedly stated that her first concern is maintaining the health of the Malawian economy and ensuring continued revenue from foreign donors.

While Banda’s move is clearly a step in the right direction in terms of the ICC’s international legal effort to apprehend Bashir, the President’s actions were likely motivated more by the desire to protect Malawi’s economic interests than as an expression of righteous indignance at al-Bashir’s continued impunity in the face of international condemnation. Banda has indicated that her boycott of the summit was intended to placate western governments and organizations which contribute significant sums of foreign aid to Malawi, donations which comprise an estimated 40% of the country’s annual GDP. She has noted that a visit from Bashir would be frowned upon by international donors and said in a statement, “My main agenda is to put Malawi on an economic recovery path and that’s what I am trying to do.”

Many have argued that we should be concerned by the way aid conditionality is being used under the ruse of “Malawi’s best interest” – is that to remain under donor colonization? It’s always more powerful to know choices are made from conviction rather than under threat.  It would of course be ideal if countries were motivated to comply with ICC mandates—to which they are already signatories—simply on the basis of justice and respect for the rule of law. However, in the current international political climate such idealism is unfortunately not the reality. The truth is that state actions are motivated by a multitude of economic, social, and political factors, and it’s important to take all of these into account when assessing government action.

In addition, while it is legitimate to point out the flaws in the conditionality of foreign aid, it is also important to consider the alternative. Should governments and institutions contribute significant sums of aid money to countries whose governments openly flout the international legal mandates with which they have officially agreed to comply? Should there be no circumstances under which foreign aid contributions are denied to a government that openly supports the impunity of accused war criminals and perpetrators of genocide such as Omar al-Bashir? In response to allegations of “donor colonization,” international legal experts have responded by contending that continuing and reverberating voices and pressure from the CICC, various NGOs, activists, and political leaders are essential pieces of the puzzle to ensure compliance with the ICC. In other words, these institutions and actors have a unique power to influence government to take the right steps towards compliance with the ICC.

The international community has a legal obligation to ensure that human rights violations and crimes against humanity are not condoned by any state. In order to achieve this end, governments often resort to economic sanctions and the (sometimes limited) political tools at their disposal. While criticism of the use and distribution of foreign aid is a vital aspect of non-governmental oversight, it is important to consider each situation from multiple perspectives. Perhaps President Banda’s actions were motivated by economic and political interests rather than strong personal conviction, but the refusal to welcome Bashir into the country was an obligation Malawi had already assumed as a member of the UN and an official supporter of the ICC. In addition, the resulting discussion over international legal compliance and respect for international norms is a valuable opportunity to highlight the continued impunity of accused war criminals such as Omar al-Bashir and the legal obligation of the international community of states not to tolerate or condone the failure of governments to comply with international law.

Children of War

The conversation about the importance of providing abortion services to victims of rape in armed conflicts would be incomplete without looking at the impact on children born to rape victims. The international community has already recognized forced pregnancy as a crime under the Rome Statute of the International Criminal Court (ICC) but it has a limited application since it requires all three elements of the crime to be satisfied. Article 7, paragraph 2 (f) requires–(1) unlawful confinement of a woman (2) forcibly made pregnant (3) with the intent of carrying out other grave violations of the international law. It is unclear what exactly falls under other grave violations of international law and means that women who were forcibly made pregnant but escaped or forcibly made pregnant without the requisite intent are not protected under the Statute.

As a result of rape or forced impregnation, these unwanted children whose mothers were forced to carry them to term due to lack of abortion services are often subject to stigma, discrimination, abandonment, abuse, neglect, and even infanticide, especially in cases of boys who are seen as potential enemy combatants. These children are commonly rejected not only by their mothers who seek to avoid shame but also by the entire community- they are seen as illegitimate, “enemy” children and may be denied citizenship rights, effectively rendering them stateless. In Rwanda, children born out of rape are often referred to as “children of hate” or “children of bad memories.”Lacking necessary support from their mothers and communities, rape children are caught up in a vicious cycle and end up getting exploited, becoming child soldiers or turning to prostitution and crime. They are more likely to suffer psychological and physical trauma as a result of unsuccessful abortion attempts by their mothers or nonexistent neonatal care, and are at a higher risk to contract HIV. They also often have attachment and trust issues even later in life and are unable to maintain familial relationships. Even children who are kept by their mothers are often raised in extreme poverty resulting from societal stigma that prevents rape victims from finding a job given lack family support or alternative childcare options.

Currently there are no specific initiatives by the international community that would protect and provide assistance to rape babies. The ICRC, WHO, and UNFPA merely issued recommendations recognizing the need to combat stigma associated with rape children. Readily available access to safe abortion services could provide an immediate solution for rape victims who are now forced to carry to term an unwanted pregnancy and later abandon or even murder their unwanted children.

Syria to reconsider its abortion law

Recently a Saudi cleric Sheikh Ali al-Maliki expressed an opinion that Syrian women raped by gang-like militia or forces loyal to President Bashar al-Assad should be allowed to undergo abortion.  He described rape as one of the most heinous crimes against women that is worse than murder.

Current Syrian law only allows abortion to save woman’s life making abortion in all other circumstances including illegal.  Penalty for performing an abortion with woman’s consent is one to three years imprisonment, and penalty for a woman who consented to abortion is six months to three years imprisonment but can be reduced if abortion is done to save woman’s honor. Syria is officially a secular state with the vast majority of its population practicing Islam but its abortion restrictions are harsh even for the Islamic world.  Schools of Muslim law universally accept that abortion is permitted if continuing the pregnancy would put the mother’s life in danger even if the pregnancy is over 120 days old but variation of thought exists when it comes to other exceptions to the abortion ban. Tunisia and Turkey have significantly liberalized their abortion law and allow it under virtually all circumstances within the first trimester, although a recent bill pending in Turkey could effectively outlaw abortion. Jordan, Kuwait, Morocco, Qatar, and Saudi Arabia allow abortion in cases of serious health risk. Iran, Kuwait, and Qatar created an exception in cases of fetal defects assuming the pregnancy is less than 120 days old. Sudan, Egypt, Bosnia, Algeria, and Bangladesh make abortion permissible in circumstances of rape or incest. Examples of the above mentioned interpretations show that Islamic law can be flexible when it comes to women’s reproductive rights. Pending decision of the Council of Senior Muslim Scholars, Syrian women might soon also be able to legally abort fetuses conceived as a result of war rape.

Observing World Refugee Day and the Plight of Displaced Girls

If you happened to be in New York City last night and were wondering why the Empire State Building was blue, here is your answer: the Empire State Building, along with major landmarks around the globe, was lit up in blue yesterday to commemorate World Refugee Day. The UNHCR honored the day in New York by opening a new exhibit dedicated to the world’s refugees entitled In Search of Solidarity: The State of the World’s Refugees.

Joan Timoney, the Director of Advocacy and External Relations at the Women’s Refugee Commission, spoke at the opening of the exhibit, and we were struck by her description of the “lost potential” of displaced girls. While life is difficult for all displaced persons, displaced girls tend to be exposed to even greater risks because of their gender. For instance, displaced girls are susceptible to exploitation and abuse, sexual and gender-based violence, early pregnancy, forced marriage, and forced labor. Displaced girls also have less access to education and resources than their male counterparts. This is largely due to the fact that women and girls have a lower status than men and boys in most societies. This unequal status is exacerbated in times of conflict and civil strife, continuing even after displaced girls are able to leave refugee camps.

To avoid losing their potential, these girls need access to security, education, and resources. Fortunately, the Women’s Refugee Commission is working to do just that with its Protecting and Empowering Displaced Girls project. The goals of the project are to ensure that displaced girls are safe and have the opportunity to finish school, develop a sense of confidence, and learn their rights and important skills so they can go on to lead fulfilling lives without abuse. This is incredibly important work and we would like to applaud the Women’s Refugee Commission for its efforts.

To learn more about the Women’s Refugee Commission’s work, visit their website.

The exhibit, In Search of Solidarity: The State of the World’s Refugees, is free and will be on view at the United Nations Visitors Centre until Aug. 7, 2012. For more information, visit their website.

Letter to the NY Times Editor, Keep Up the Pressure on Myanmar’s Generals

A version of this letter appeared in print on page A30 of the New York edition with the headline: Change in Myanmar.

Janet Benshoof, President of the GJC, responds to an OpEd about Myanmar. She explains in this letter that sanctions are not enough to exact lasting democratic change in Myanmar; the focus should be on the Constitution.

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How the “August 12th Campaign” sparked a movement

Top Queen Councils in protest against President Obama’s “no abortion” clause

The London Times published an article feauturing the Queen’s Counsel’s effort to pressure President Barack Obama to issue an Executive Order lifting the “no abortion” clause that affects U.S humanitarian aid for girls and women involved in conflict.

This movement was inspired by the launching of the Global Justice Center’s “August 12th” campaign which urges President Obama to reinstate U.S support for the Geneva Conventions by removing the blanket abortion prohibitions embedded in U.S humanitarian aid that endanger women and girls who have been raped and impregnated in armed conflict. To read more information regarding to this campaign, click here.

Almost 50 of the UK’s most prominent Queen’s Counsel, headed by Amanda Pinto, QC, director of international affairs of the Criminal Bar Association and Vice Chairman of the international committee of the Bar Council, have written urging Obama to take action on this issue.

To read the article click here.

The Perils of the Inaccessibility to Reproductive Healthcare in Eastern Burma

A woman should never have to resort to using a fishing hook or dangerous medications as the only feasible options to terminating a pregnancy. Yet these dangerous tactics remain pandemic in eastern Burma where inaccessibility to proper healthcare and safe abortions threatens the livelihood of thousands of women. A recent report by Ibis Reproductive Health highlights the dire state that women on the Thai-Burma border are in. The fact that so many women in Burma turn to these fatal and unsafe method of pregnancy termination underscore the need for safe abortions.

Yet, despite this clear need, USAID silences any prospects for these women to enjoy a healthier future. The United States, being the largest donor of humanitarian aid, has an immense amount of influence on how aid is distributed. When Congress implemented the Helms Amendment in 1973, abortion restrictions were placed on foreign aid. Under “Helms” no USAID funding may be used to pay for abortion as a method of family planning. The amendment contains a provision that prohibits abortion speech, saying that the funds cannot be used to “motivate or coerce any person to practice abortions.” The Global Justice Center staunchly argues that these abortion restrictions are a violation of the rights of girls and women raped in armed conflict under international humanitarian law. This is because the Geneva Conventions recognize that women and girls raped in armed conflict, as “protected persons”, are classified as “wounded and sick” and are entitled to “receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.” Therefore, depriving these girls and women of this care is unlawful and this injustice is the driving force behind the Global Justice Center’s August 12th campaign.

Focusing in on eastern Burmese women, it is clear that they do not have a credible institution to turn to when it comes to reproductive healthcare. In fact, reproductive healthcare in Burma is known to be the worst in the world.  The “Separated by Borders” report, released by Ibis Reproductive Health and the Global Health Access program exposes the crippling healthcare infrastructure in eastern Burma.  The GJC has long noted the terrible state of eastern Burmese women when it comes to accessibility to reproductive health care and abortion, especially during conflict. The Global Justice Center is using legal tools to work diligently to help lift the “no abortion” clause in U.S humanitarian aid to make this type of care more accessible so women in order to prevent prolonged suffering.

Based on the Ibis Reproductive Health Report, RH Reality Check author Anna Clark notes the life-threatening repercussions of depriving Burmese women of reproductive services including unwanted pregnancies, unsafe abortions and death. Furthermore, 80 percent of women in eastern Burma have never used birth control due to the overall inaccessibility of contraceptives and the lack of legitimate healthcare.

Granting women in eastern Burma their rights, including access to reproductive healthcare will be a step in the right direction for Burma. Burmese women will not only be alleviated from suffering, but, they will also have the opportunity to become more active members of society. Utilizing the rule of law, the Global Justice Center works to dismantle the patriarchal structures inhibiting women’s rights to make sure that the prioritization of women’s health will be factored into the equation in the years to come.

To read more about this issue on RH Reality Check, click here and here.

To read the “Separated by Borders” report, click here.

To read more about the Global Justice Center’s August 12th Campaign, click here.

Fundamental Constitutional Review Needed in Burma

On Sunday, 29 January 2012, Burmese opposition leader Aung San Suu Kyi called for reforms to the military drafted 2008 Burmese Constitution. The Nobel Laureate’s call highlights the fundamental and systemic obstacle that the constitution represents to democracy in Burma. The Global Justice Center has long noted that the 2008 Constitution not only undermines the prospects of any true democracy but also leads to the perpetuation of some of the world’s most heinous war crimes and human rights violations.

Unlike any other constitution in the world, the Burmese Constitution creates a bifurcated sovereignty. It ensures that the military is constitutionally autonomous from and supreme over the civilian government. Even if he is willing, the President, Thein Sein, cannot enforce any laws against the military. Furthermore; the constitution guarantees the military amnesty for all crimes – including the most heinous such as genocide, war crimes and crimes against humanity. It also ensures the perpetual dominance of the military by guaranteeing that 25% of the seats in Parliament are reserved solely for the military, while parading itself as a multi-party “democracy”.

This flawed constitution has dire and detrimental consequences. The bifurcation of sovereign power means that Burma cannot enforce or comply with international obligations including the Geneva Conventions, UN Security Council Resolutions and the Nuclear Non-Proliferation Treaty (NPT). To have a military, which is not legally accountable by any standards, obtain nuclear capabilities is a threat to global peace and security. Additionally, the clear lack of accountability, transparency, and legal autonomy of the military perpetuates genocide, war crimes, and crimes against humanity – all of which are punishable under international law. This means that the military’s targeted attacks against the ethnic minority civilians in regions such as the Kachin go un-checked, gross human rights violations are perpetuated and more fundamentally, justice is denied to victims of the armed conflict.

While the recent “democratization efforts” may be welcome, what Burma needs is not just change but radical change. At the most basic level, the 2008 Constitution serves to enshrine the military’s impunity for the worst crimes. If Burma is to achieve democracy, the rule of law and justice, fundamental constitutional review is certainly most needed.

For More Information:

Putting Democracy Out of Reach: How Burma’s New Government Violates the Law of Nations and Threatens Global Peace and Security

Burma’s Nuclear Strategy: How Burma’s Military Has Successfully Hijacked Democracy and Made Control over Burma’s Nuclear Future a Constitutional Right of the Military

The Legal Obligation to Prevent Genocide in Burma

The GJC publishes this fact sheet explaining the legal obligation of states to prevent (not just punish) genocide. Burma is now the number one state in the world at risk of genocide; it is therefore the obligation of all states to act against genocide in Burma.

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Recent Wave of Defecting Diplomats and War Crimes Confessions Brings Burma’s Human Rights Abuses to the Foreground

In the past two weeks, Deputy Chief of Mission Kyaw Win and Soe Aung, the second and fourth-ranking Burmese diplomats at the Burmese Embassy in Washington, have defected and are seeking asylum in the United States. Both diplomats cited the unrelenting abuse of their fellow countrymen by the military junta, sham elections, and fear for the safety of themselves and their families as reasons for their defections.

This recent wave of defections of high-ranking officials is undeniable evidence of the egregious human rights abuses that the Burmese government has been committing for decades.  GJC aggressively advocates for legal action to be taken against the Burmese government in the form of a referral to the International Criminal Court (ICC).  Furthermore, the UN Security Council should pass a resolution deeming the Burmese constitution “null and void” under international law for it is a complete breach of international law and poses a threat to international legal accountability as a whole. For more information, see GJC’s legal brief, Burma’s Nuclear Strategy: How Burma’s Military Has successfully Hijacked Democracy and Made Control over Burma’s Nuclear Future a Constitutional Right of the Military.      

Adding to the growing evidence of atrocities, this week, a Burmese refugee in Australia Htoo Htoo Han confessed that he committed war crimes while serving as an undercover military intelligence officer in Burma.  “For so long I have lived like an animal. Now I want to release what I carry inside for 20 years. I want to say sorry to the mothers and fathers of the people I killed.” Han admits to carrying out 24 executions during a 1988 anti-government student uprising and being implicated in over 100 more killings.  However, since Australia is a supporter of the pro-democracy movement in Burma, the decision of the Australian government to report Han’s confession may jeopardize the interest that some Australian corporations have in Burma’s resources, specifically their access to crude oil.

Hopefully, these defections and confessions will increase awareness of the human rights atrocities that are being committed in Burma.  Furthermore, GJC hopes that this information instills a sense of responsibility in the UN and other members of the international community to provide support for take radical action against the overtly oppressive Burmese government and support the creation of a democracy.

GJC Attends “Sri Lanka’s Killing Fields” Screening at the UN

On Tuesday, June 13, 2011 several GJC staff members and legal interns attended a screening of the controversial and disturbing documentary “Sri Lanka’s Killing Fields” at the Church Center in front of the UN Headquarters.  The event was presented to senior diplomats, UN staff and NGOs.  The film documents the final weeks of the Sri Lankan Civil War which lasted from 1983 to May 2009.  During the war, rebels known as the Liberation Tigers of Tamil Eelam (LTTE) fought to create independent Tamil state in North and Eastern territories of Sri Lanka, but were ultimately defeated by government forces.

The documentary explains how the Sri Lankan government pressured UN representatives to leave the Tamil occupied regions before launching a major offensive, leaving few or no international observers of the horrors which were to follow.  

The footage shows Sri Lankan soldiers committing extra-judicial killings of bound prisoners, photographs suggesting torture, and interviews of a woman who handed herself over to government forces and claims she and her daughter were raped and that she witnessed others being raped and killed.  Other footage suggests that such treatment of women may be systematic.  The film also shows displaced civilians killed by the government after being moved to a “no fire” zone and hospitals that were deliberately shelled by the government.  

Many of the accounts in the film are corroborated by a UN Report released by Secretary General Ban Ki-moon in March 2011.  The report found that as many as 40,000 people were killed in the last weeks of the conflict.  The Secretary General has expressed concern over potential war crimes and crimes against humanity committed by both sides and has urged the Sri Lankan government to investigate alleged violations and to “advance accountability.”  

The government, however, has rejected the report and called it “biased, baseless and unilateral.”  The Sri Lankan government further claims that the footage of “Sri Lanka’s Killing Fields” is fake and that the film is not even-handed.  The film, however, has been authenticated by UN specialists and suggests that war crimes were committed by both sides, with the LTTE engaging in suicide bombings, using civilians as human shields and enlisting child soldiers.


The screening was followed by a panel discussion which included Sri Lankan Permanent Representative to the UN Dr. Palitha Kohona and Former Major General and current Deputy Permanent Representative to the UN Shavendra Silva.  Kohona claimed many of the interviewees were lying and denied that the government engaged in systematic human rights abuses.  He stated that Sri Lanka is “a mature democracy” and that any violations by individual soldiers should be dealt with internally, asserting that calls for accountability from the international community are “paternalistic.”  He also rejected the 40,000 casualties figure suggested by the UN, claiming that if one counted all the bodies in the film “you would not come up with a total of one hundred persons.”  Silva alleged that the filmmakers were funded by the LTTE and demanded that the country be allowed to deal with issues domestically.


The screening timely comes soon after the Sri Lankan Justice Ministry has received a summons from a US Federal Court for President Mahinda Rejapaksa.  The summons is connected to three civil cases filed under the Hague Conventions and the US Torture Victims Protection Act by relatives of victims of alleged extra-judicial killings.  The Sri Lankan government has indicated that it will not respond to the summons.  The cases will be founded on the principle that the US, as well as other countries, may exercise universal jurisdiction over war crimes and crimes against humanity.  


Similarly, the GJC is currently investigating the possible use of universal jurisdiction to prosecute Burmese war criminals.  Specifically, the Burmese military junta routinely employs rape, torture, slavery, murder, mass imprisonment and abduction of children to fill its military quotas, all of which war crimes, crimes against humanity or genocide.  Moreover, the new Burmese Constitution provides military criminal impunity for war crimes and crimes against humanity.  Given that Burma is a party to the Fourth Geneva Convention and to the Genocide Convention, which require parties to enact domestic legislation to implement the treaties, the Burmese Constitution is a prima facie violation of its obligations.


In addition to the UN Security Council’s ability and, indeed, imperative to declare the Constitution “null and void,” fellow state parties may refer the issue of Burma’s noncompliance to the ICJ.  As with the recent US summons of Sri Lankan President Rejapaksa, however, states need not necessarily rely on the Security Council or the ICJ to ensure accountability for war crimes.  For violations of rights that are erga omnes, or owed to all, any state may use universal jurisdiction to arrest and prosecute suspected war criminals.  GJC is working to encourage certain states to exercise this tool to arrest and try Burmese officials who travel to their territory.


“Sri Lanka’s Killing Fields” may be viewed online at the British Channel 4’s website until July 13:
http://www.channel4.com/programmes/sri-lankas-killing-fields/4od 

UK Baroness Uddin Uses GJC Legal Arguements in House of Lords Debate to Call for end to Discriminatory Care of Women Raped in Conflict

In her statement last Thursday, UK Baroness Uddin used a new legal argument from the Global Justice Center to call for the end to the routine denial of access to abortions for women who are raped and impregnated in conflict. Baroness Uddin identified the United States policy of censoring humanitarian aid recipients from speaking about or providing access to abortions as playing a major role in the continuing violation of the rights of these victims and called on the UK to ask questions of the United States about this policy when it is reviewed by the UN Human Rights Council. 

From UK House of Lords debate on the Millennium Development Goals, October 7, 2010, at link below, columns 307-308:

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101007-0002.htm#10100714000795

Baroness Uddin: My Lords, I, too, thank the noble Lord, Lord Chidgey, for initiating this important discussion. In the UK we should be rightly proud of the British leadership in advancing the millennium development goals which represent a vision of a world transformed where equality and justice prevail.

However, while we are very pleased, one group of women remains outside the MDG effort. Until we address this failure, we cannot speak of real progress. Today I ask our Government to call explicitly for girls and women who are forcibly impregnated by the vicious use of rape in armed conflict to be included under MDG 5-reducing maternal mortality. “Rape as a weapon of war” is a phrase commonly used accurately to describe what is happening alongside today’s armed conflicts, but we rarely speak about the consequences of this weapon. Thousands of girls and women impregnated by rape used as a weapon of war are routinely denied access to abortions. Girls and women die from their attempts to self-abort and from suicide resulting from untold stigmatization leading to social marginalization.

We should do what no other country has done: to ensure that the humanitarian medical aid provided to girls and women in places such as Congo, Sudan and Burma-an endless list of countries-gives them choices and access to abortion when pregnancy is a direct result of rape as a weapon of war. This is a moral imperative and a legal obligation. The Geneva Convention requires that civilians and combatant victims receive non-discriminatory medical care, whether it is provided by the state in conflict or by others. Why, then, are pregnant rape victims given discriminatory medical care through the routine denial of access to abortion? The embedded inequality towards women in conflict settings has been recognised by the Security Council in such historic resolutions as 1325 and 1820. Equal justice for women is not limited to the courtroom, it must be extended to supporting those women who are victims of the inhuman practice of rape as a weapon of war.

I draw the attention of the House to the recent report of the Harvard Humanitarian Initiative and Oxfam, which details examples of the impact, stigma and suffering of raped children and women in Congo, Sudan and elsewhere, where no legal provision exists to support them. It also mentions that women should be given preventive care-that is, utilisation of contraception-as though women who are raped can be prepared for such horrors.

One of the solutions proposed by women’s organisations, including the international human rights organisation the Global Justice Center, is that access to abortion must be a critical part of the support available to women. The centre filed a shadow report with the Human Rights Council asking it to recommend that the US remove the prohibitions put on humanitarian aid to rape victims in conflict, as it violates the US obligation under the Geneva Convention. The UK can and must support this issue by asking questions of the US during the council’s review process due shortly.

I know that these are difficult matters for many individuals and countries to address, and international donor communities have thus far resisted pressurising countries to review their policies. Neither criminal abortion laws in the conflict state nor foreign aid contracts with the United States can serve as defence to a state provision of discriminatory medical care to all victims under international humanitarian law.

Time is short, and I should have liked to highlight many examples of countries such as Bangladesh where the suffering and humiliation of rape has left decades of suffering, ill health and stigma. The UK must take a lead to end that discrimination. This will mark real progress towards the millennium development goals and towards ensuring equal rights for women under international humanitarian law.