Q&A: The International Court of Justice & the Genocide of the Rohingya

Starting in October 2016 and then again in August 2017, Myanmar’s security forces engaged in so-called “clearance operations” against the Rohingya, a distinct Muslim ethnic minority, in Rakhine State, Myanmar. The operations, in particular those that started in August 2017, were characterized by brutal violence and serious human rights violations on a mass scale. Survivors report indiscriminate killings, rape and sexual violence, arbitrary detention, torture, beatings, and forced displacement. Reports have also shown that security forces were systematically planning for such an operation against the Rohingya even before the purported reason for the violence — retaliation for small scale attacks committed by the Arakan Rohingya Salvation Army (ARSA) — occurred. As a result, an estimated 745,000 people — mostly ethnic Rohingya — were forced to flee to Bangladesh.

According to the UN Human Rights Council-mandated Independent International Fact-Finding Mission on Myanmar(FFM), the treatment of the Rohingya population during the “clearance operations” amounts to genocide, crimes against humanity, and war crimes, the commission of which evokes specific obligations and responsibility under international law.

And yet, despite extensive and meticulous documentation, as well as a global outcry from the international community, Myanmar continues unabatedin its discriminatory treatment of the Rohingya and accountability for these horrific international crimes remains elusive. This fact sheet examines current accountability efforts, including at the International Court of Justice (“ICJ”) and International Criminal Court (“ICC”) and seeks to clarify available avenues for justice for the crimes committed against the Rohingya population, with a focus on state responsibility for genocide.

Factsheet: Structural Barriers To Accountability For Human Rights Abuses In Burma

Recent reports detailing the heinous human rights abuses committed in Rakhine State in Burma have triggered calls for perpetrators to be held accountable, both domestically and internationally. The Office of the Prosecutor of the International Criminal Court (“ICC”) has opened a preliminary examination1 and the UN Human Rights Council has established an investigative mechanism to collect, preserve, and analyze evidence of crimes.2 International action is not only justified but absolutely necessary given the impossibility of holding perpetrators to account using domestic justice mechanisms. Decades of unchecked human rights abuses against ethnic groups in other areas of Burma and deeply-entrenched domestic structural barriers preventing accountability have emboldened the military and contributed to the current crisis. Without international action to address and tackle Burma’s culture of impunity and the structural barriers that underpin them, this pattern will likely continue unabated.

This Fact Sheet details the domestic structural barriers that impede accountability for perpetrators and preclude justice for victims of human rights abuses in Burma. These obstacles, formalized with the “adoption” by a spurious referendum of a new Constitution of the Republic of the Union of Myanmar (the “Constitution”) in 2008, prevent any full accounting for human rights violations committed by the military (the “Tatmadaw” or “Defense Forces”) in Burma. Obstacles outlined in this Fact Sheet include: (1) constitutional supremacy and autonomy of the military; (2) constitutional guarantees of impunity; (3) military emergency powers; and (4) lack of an independent and accountable judicial system.

Understanding the domestic structural impediments to accountability for the military is crucial to understanding the circumstances that give rise to these offenses and lead to the inevitable conclusion that unless these barriers are dismantled, human rights abuses will go unpunished and a true democracy will not take hold in Burma. Moreover, a situation of national unrest gives the military great powers under the Constitution capable of emboldening and further empowering the military. 

While the increasingly volatile situation and humanitarian crisis in Rakhine State highlight military abuses and impunity, the Tatmadaw has for decades engaged in armed conflict with multiple ethnic groups in Burma. These long-running conflicts are characterized by human rights abuses perpetrated by the military that have gone unpunished and continue today in multiple regions, including Shan and Kachin states. The situation in Rakhine State must be understood not in isolation but as part of a continuum, and as another example of how impunity for human rights abuses committed by the military is the rule, not the exception, in Burma.

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Fact Sheet: Stopping The Use Of Rape As A Tactic Of War: A New Approach

There is a global consensus that the mass rape of girls and women is routinely used as a tactic or “weapon” of war in contemporary armed conflicts.1 Despite two decades of intense global efforts, rape used as a tactic of war continues undeterred. This is not surprising: rape is a cheap, powerful, and effective tool for military forces to use to kill and mutilate women and children, force pregnancy, terrorize families and communities, demoralize enemy forces, and accomplish genocide.

Rape used to further military objectives or the strategic aims of a conflict (“strategic rape”), constitutes a prohibited tactic or method of warfare under international humanitarian law.

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Security Council Resolutions on Women, Peace and Security in Practice: The Failed Case of Burma

In 2000, the United Nations (UN) Security Council passed a historic resolution as its clarion call for ending sexual violence in conflict. This Resolution, SCR 1325, as well as the succeeding Resolutions, that together form the Women, Peace and Security (WPS) Resolutions recognized the gender-specific impact of conflict and historic gender discrimination in criminal accountability for sexual violence in conflict, and underscored the need for women to participate in post conflict reconstruction. The Global Summit to End Sexual Violence (the Summit) has been convened to create a “sense of irreversible movement to end the use of rape and sexual violence in conflict” and, therefore, is a time to assess how the WPS Resolutions have translated into protections for women during conflict.

Using the current conflict situation in Burma as a test of the WPS Resolutions demonstrates how ineffective they have been in providing protection and remedy for women on the ground during conflict. Despite the mandates of the WPS Resolutions, credible evidence continues to indicate that the military uses sexual violence against ethnic women in Burma as a means to assert its authority and to destroy ethnic communities. The military continues to operate with Constitutionally-sanctioned impunity for its actions. Moreover, current peace negotiations, intended to end decades of ethnic conflict, have almost completely failed to include women, especially ethnic women.

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Updating State National Action Plans to Ensure the International Humanitarian Rights of Women and Girls Raped in Armed Conflict

On the occasion of the Global Summit to End Sexual Violence in Conflict, the Global Justice Center encourages States to exercise global leadership on the protection of women and girls raped in armed conflict by updating their National Action Plans (NAPs) to include explicit language accepting their international humanitarian law obligations to provide non-discriminatory medical care, justice, and reparations to war rape victims.

Women and girls raped in war are among the “war wounded,” therefore protected under international humanitarian law (IHL) by the absolute prohibition on adverse distinction, including on the basis of sex. In reality, however, women and girls raped in war are regularly subjected to discrimination in the medical care they receive and in the justice, accountability, and reparations measures available to them. The prohibition against adverse distinction applies to how all IHL rules are implemented, and it is so fundamental that it constitutes customary international law. Adverse distinction is interchangeable with the term “non-discrimination:” in all cases IHL cannot be implemented in ways that are “less favorable” for women than men.

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How the US is Blocking Access to Safe Abortion Services for Women and Girls Impregnated by Rape in Syria

Throughout the Syrian conflict, Syrian government forces and government-controlled militia (Shabiha) have reigned terror over the civilian population. Alma, a victim of this violence, describes being held in a cell where she would kick and scream alongside 20 other women while they were drugged, blindfolded, and gang-raped.

In the worst embodiment of this campaign, rape is used as a weapon of war against Syrian women and girls. Alma continues, “I’ve been through everything! I’ve been battered, flogged with steel cables, had cigarettes in the neck, razor blades all over my body, electricity to my vagina. I’ve been raped while blindfolded everyday by several men who stank of alcohol and obeyed their superior’s orders, who was always there. They shouted: ‘You wanted freedom? Well here it is!’” A different victim illustrates the scene at a Syrian detention center in which a doctor visited each woman’s cell to note the dates of her period and to hand out birth control pills: “[w]e lived in filth, in blood, in [feces], with no water and barely any food. But we had such an obsessive fear of becoming pregnant that we took these pills scrupulously.” Still other victims of these crimes against humanity described situations in which their “bodies have become battlefields and torture chambers.”

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The Gender Gap and Women's Political Power in Myanmar/Burma

The rights of women under international law, including the right to occupy positions of political power, have advanced more in the last 20 years than ever before. True political participation requires a significant number of women in all areas of governance: ceasefire and peace treaty negotiations, constitution drafting committees, political parties, executive branch appointments, and elected positions.

In Burma, the long history of militarization has reinforced and perpetuated the gender gap in power. Women are not admitted into active military service, effectively excluding them (as well as ethnic minorities) from political participation since top offices are reserved for the military. Therefore, they have also been ineligible for the employment, education, business, joint venture and travel opportunities created by military status.

Pursuant to the 2008 Constitution, the Defense Services (Tatmadaw) remain an integral and permanent part of the machinery that governs Burma and is constitutionally guaranteed complete power and autonomy. The continued military dominance guaranteed by the Constitution is the main obstacle for women in Burma hindering them from ever gaining real political power.

This timeline illustrates the absence of women’s voices from formal governing structures throughout Burmese history. It should provide an impetus for this formerly silent majority, the feminist majority, to make their voices heard and to take their turn at governing the country.

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Myanmar/Burma’s Binding Obligations Under International Law

November, 2012

This document outlines some of Myanmar/Burma’s (hereinafter “Burma”) obligations under international law, and demonstrates the ramifications of these obligations. Burma’s obligations under international law have greatly increased due to the advances in international law and the enforcement of states obligations over the last fifteen years.

International law mandates that states either act or refrain from acting in certain ways, and provides remedies for state breaches. The framework of Burma’s obligations arise from four interrelated bodies of international law: international human rights and other treaty law, including the United Nations (UN) Charter; customary international law, including the laws of state responsibility; international humanitarian law; and international criminal law.

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UN Security Council Resolutions on Women, Peace and Security: A Chart Detailing State Mandates to End Crimes of Sexual Violence in Armed Conflict, Ensure Accountability and Promote Gender Parity in Conflict and Post-Conflict Situations

The following chart details the legally-binding mandates of the UN Security Council Resolutions on Women, Peace and Security 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010) – emphasizing the need for greater protection of women‟s rights and the inclusion of women in global governance and peace processes. The chart delineates the duties and obligations for action by 1) the UN Secretary-General, and 2) Myanmar/Burma [hereinafter Burma], as both a UN member state and a party to armed conflict.

Despite their application to Burma, the Resolutions have not brought any real and concrete change for girls and women on the ground. The inability of UN representatives to reach conflict areas in Burma severely obstructs the reporting mechanisms of SCR 1960. Additionally, since the Constitution of Burma gives complete amnesty for any and all crimes committed by the ruling military regime, the Burmese government precludes any meaningful accountability and justice mechanism for the women victims of sexual violence and enshrines further impunity for perpetrators.

The Global Justice Center is a New York based Human Rights Organization with consultative status to the United Nations working with judges, parliamentarians and civil society leaders on the strategic and timely enforcement of international equality guarantees. The Global Justice Center has been at the forefront of human rights advocacy in Burma by working closely with groups on the ground to implement international women‟s rights through the rule of law.

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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.

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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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The Current Situation in Burma

The Burmese military junta, the State Peace and Development Council (SPDC), continues to exercise dictatorial control over the lives of the people of Burma as it has done with impunity over forty years. The junta routinely employs torture, rape, slavery, murder, forced displacement, and mass imprisonment to consolidate its power and silence any dissent. These acts are criminal violations of international humanitarian and human rights law.

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Unequal Access to Justice in the Middle East

The GJC publishes a fact sheet on unequal access to justice in the Middle East.

This fact sheet lists 3 of the obstacles women face in gaining equal access to justice in the Middle East: Penal Codes/Laws, Customary and Social Practices and Limited Judicial Participation. It also provides a table with a list of Middle Eastern countries that have ratified CEDAW, and their policies on women's participation in the judiciary (i.e. whether it is permitted, and what limitations are involved).

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Don’t Fight the Phony Wars: The US Exportation of Gender Inequality

This fact sheet provides information on the Gonzales decision, and how it "opens the door to more criminal laws regulation reproductive rights on theological, ideological and/or moral grounds." The fact sheet also lists the four pillars of Roe, and four phony wars: The Federal ERA, The US Ratification of CEDAW, "Roe v Wade" as it stands today is no right to fight for and the Global Gag Rule.

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The Anfal Decision: Breaking New Ground for Women’s Rights in Iraq

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.

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