Gender and Genocide
Letter to Louise Arbour: RE: The International Crisis Group’s Policy Urging Unconditional Engagement with Burma’s Military Rulers Contradicts States’ Absolute Obligations to Respond to Burma’s Serious Breaches of Peremptory Norms of International Law, Sep
Letter to Louise Arbour: RE: The International Crisis Group’s Policy Urging Unconditional Engagement with Burma’s Military Rulers Contradicts States’ Absolute Obligations to Respond to Burma’s Serious Breaches of Peremptory Norms of International Law, September 2011
GJC President Janet Benshoof in Democratic Voice of Burma: "It's Time for the International Community to Address Burma's Constitution"
Here's an excerpt from the article "It's Time for the International Community to Address Burma's Constitution," which was published in
The international community acts as if development and engagement alone can secure a democratic future for Burma. The United Nations and donor countries, with staggering rapidity, are investing considerable amounts of international and bilateral aid in Burma, including for “rule of law” projects designed to jettison Burma into the 21st century global legal community. However, this well-intended engagement, touting ideals of democracy and the rule of law, is built on a fallacy, which neither serves the people of Burma nor advances the global security sought by the international community.
This fallacy is that justice, democracy, and rule of law can be established in Burma notwithstanding the fact that the 2008 constitution establishing the “Republic of the Union of Myanmar” grants the “Defense Services,” under Commander-in-Chief Min Aung Hlaing, complete and total legal autonomy over its own affairs, as well as immunity for its actions, however criminal or corrupt. The truth is actually quite simple: unless and until the military is placed under civilian control through constitutional amendment, talk of democracy and rule of law in Burma is just that, talk.
Click here to read the full article in English.
Click here to read the full article in Burmese.
Domestic Criminal Laws That Conflict with International Law: Burma's Abortion and Rape Laws - A Case Study
International law provides a model to improve often outdated domestic laws.
Burma is party to many treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Genocide Convention and the Geneva Conventions. International law requires states to comply with their treaty obligations in “good faith” regardless of whether domestic laws conflict with the treaty. These obligations often include requirements that states modify their domestic laws to ensure compliance with international human rights and humanitarian standards and obligations. For example, the Genocide and Geneva Conventions, ratified by Burma, both require as a part of their fundamental mandates that states pass domestic laws to comply with their treaty obligations. Burma currently has no domestic laws implementing any of its human rights treaty obligations, with the possible exception of its laws against human trafficking.
This document examines Burma’s domestic criminal laws addressing abortion and rape and compares them with the international law standards binding on Burma. These case studies are examples of how international law can be used to reform of Burma’s domestic law to comport with international human rights and humanitarian standards.
July 1, 2012 marked the International Criminal Court’s 10th anniversary. The ICC was established by the Rome Statute which came into effect in 2002, creating the first permanent international court in history. Ten years later, critics and supporters alike are assessing the progress of the Court in achieving its goals of bringing to justice those responsible for the most atrocious human rights violations.
Over the past ten years, the ICC can claim a number of impressive achievements—many of which are especially remarkable for an institution lacking any law-enforcement apparatus of its own and which operates solely on the basis of cooperation with participating states. Currently, the ICC is working in seven situation countries and monitoring developments in seven others. In March this year, the ICC delivered its first judgment in a case concerning the use of child soldiers in the Democratic Republic of the Congo. Six cases are in the trial stage and nine others in pre-trial phase. These proceedings indicate a growing acceptance by governments and state actors that impunity for war crimes will no longer be tolerated by the international community.
In addition to its international legal role, the Court is also raising global awareness of human rights violations and the importance of providing an avenue of justice for victims. The ICC’s proceedings have emphasized, on a global scale, that children cannot be used as soldiers during hostilities, that sexual violence as a weapon of war is an unacceptable international crime, and that those in positions of power must safeguard the fundamental human rights of people caught in conflict.
Despite these achievements and successes, the ICC still faces many hurtles. Among these is the failure of the most powerful and influential countries in the world to ratify the Rome Statute, the unwillingness of signatory states to arrest wanted criminals, and accusations that the Court serves as a political tool of the West. To date, 121 countries have ratified the treaty and another 32 have signed the Statute, indicating an interest to join in the future. However, states like Russia, China, and the United States have refused to ratify the treaty due to a fear that it will result in their own political and military personnel being charged with war crimes or crimes against humanity. Many also view ratification of the treaty as an interference with their state sovereignty and an overreach of the international community into domestic affairs and legal proceedings.
The Court still faces many challenges to its authority and legitimacy within the global community. There are myriad complicated legal issues surrounding the prosecution of war criminals whose offenses have spread across borders and affected groups of people under the jurisdiction of multiple legal systems. However, the increased awareness that the Court has brought to the complicated legal issues involved in prosecuting war crimes has revealed the desperate need for an international body such as the ICC in which victims are given a means of achieving justice against perpetrators of war crimes and the valuable role that the Court plays in international justice. Though many obstacles remain to achieving the goals outlined by the Rome Statute, the Court’s accomplishments during its first ten years indicate a strong push in the direction of international justice and a promising future for the ICC and its influence on the international stage.
To read more about events commemorating the Court’s 10th anniversary, visit the official website.
Update: On July 10, 2012, the ICC issued its first sentence since its establishment ten years ago. To read more about the case, click here.
Post by: Adrian Lewis
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, 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.
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.
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.
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:
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.
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:
The letter "Justice for Myanmar," by a spokesman for 88 Generation Students, was published in the Editorial section of the New York Times, in response to the Times' article "Exiles Try to Rekindle Hopes for Change in Myanmar," also included in this document, published on August 6, 2008.
The Op-Ed published on August 12 points out that the article published by the Times does not represent the view of all Burmese exile groups. Not everyone thinks that President Bush and other world leaders should negotiate with the military juntas; many want access to justice and criminal accountability.
The GJC publishes a fact sheet on the Anfal decision.
The Anfal decision was made by the IHT, in prosecuting crimes committed under the Anfal campaign against Iraq's Kurdish population. The decision is a step in the right direction for women's rights in Iraq. This fact sheet gives information on the decision, including rape as torture, rape as genocide, joint criminal enterprise and rape, and how the IHT can be a vehicle for legal reform both in Iraq and internationally.
Criminal Accountability for Heinous Crimes in Burma: A Joint Project of the Global Justice Center and the Burma’s Lawyer’s Council
The Global Justice Center and the Burma Lawyers' Council publish, in a joint project, this fact sheet on criminal accountability for heinous crimes in Burma.
This fact sheet gives information on the project on criminal accountability, and states that the Security Council should end the impunity accorded the Burmese military junta for crimes perpetrated against the people of Burma, as well as establish an Independent Commission of Inquiry. The fact sheet also explains the Security Council's Obligation to Act under Chapter VII.
The Women’s Alliance for a Democratic Iraq (WAFDI) and the Global Justice Center (GJC) jointly organized a three-day conference on women’s rights and international law November 13th – 15th at the Dead Sea, Jordan. Attendees included twenty members of the Iraqi High Tribunal (IHT) and representatives from the President’s ofﬁce, the Prime Minister’s ofﬁce, the Parliament, the Ministry of Human Rights as well as prominent members of civil society. The conference addressed a crucial subject for women in Iraq: sexual violence, as a war crime, a crime against humanity and an instrument of genocide, and its drastic impact on the victims. This issue was addressed in the context of international law and its role in the IHT, with an eye towards having the IHT address these crimes in its upcoming indictments and judgments.