Letters

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

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

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

Dear Committee Members,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Recommendations

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

Respectfully submitted by:

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

Download the Letter

Annexes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Letter to HHS: Comments in Response to Patient Protection and Affordable Care Act, Notice of Benefit and Payment Parameters for 2020

Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
Attention: CMS-9926-P
P.O. Box 8016
Baltimore, MD 21244-8016

Attn: Comments in Response to Patient Protection and Affordable Care Act, Notice of Benefit and Payment Parameters for 2020, CMS-9926-P

Dear Secretary Azar and Administrator Verma:

The Global Justice Center (“GJC”) submits this comment in response to the Department of Health and Human Services’ (“HHS”) Proposed Rule entitled Patient Protection and Affordable Care Act, Notice of Benefit and Payment Parameters for 2020 (the “Proposed Rule”).  For purposes of this submission, commentary is limited to the portion of the Proposed Rule that would amend the Patient Protection and Affordable Care Act (“PPACA”) so that private insurance providers that provide abortion services would be required to offer a version of the plan which does not cover abortion services.[1]

GJC is an international human rights organization based in New York dedicated to achieving gender equality through the rule of law. For the past decade, GJC has been at the forefront of efforts to ensure that the law protects and promotes access to comprehensive sexual and reproductive health rights for women and girls around the world. As experts in women’s rights and human rights, we write to express our vehement opposition to the Proposed Rule.

First, the Proposed Rule would violate women’s fundamental human rights, including to non-discriminatory health care. Second, by singling out abortion for special treatment from all other health services, the Proposed Rule reinforces the already stigmatizing and discriminatory treatment of abortion under the PPACA. Third, the Proposed Rule uses the administrative apparatus of the Executive branch to undermine safe access to abortion services afforded by law and frustrates the intent of Congress, which has instructed under the PPACA that issuers should decide for themselves whether to provide abortion coverage beyond the limited exceptions allowed under the discriminatory and harmful federal Hyde Amendment. Fourth, the Proposed Rule imposes undue administrative burdens on insurers. The outcome, and tacit intent, of the Proposed Rule is to further stigmatize abortion and to increase administrative burdens on insurers, all with the ultimate aim of discouraging insurers from providing abortion coverage. As such, the Proposed Rule violates women’s fundamental rights under the US Constitution and international human rights law. For these reasons, GJC urges HHS to withdraw the Proposed Rule.

  1. The Proposed Rule discriminates against women and violates women’s fundamental human rights, including the right to non-discriminatory health care.

Access to abortion is a fundamental right protected under the US Constitution and international human rights law. Since its decision in Roe v. Wade,and as confirmed in Planned Parenthood v. Casey and Whole Women’s Health v. Hellerstedt, the US Supreme Court has found that the government may not enact measures that impose an undue burden on access to abortion services. Human rights obligations binding on the US protect access to abortion under a multitude of rights—including the rights to privacy, life, and health, and the right to be free from discrimination, torture, and cruel, inhuman or degrading treatment.[2] The realization of these rights relies on the accessibility of sexual and reproductive health care services.[3] International human rights experts have made clear that the right of every woman and girl “to make autonomous decisions about her pregnancy…is at the very core of her fundamental right to equality, privacy and physical and mental integrity and is a precondition for the enjoyment of other rights and freedoms.”[4]

The same experts have called upon states to ensure that women can “access all necessary health services, including sexual and reproductive health care, in a manner that is safe, affordable and consistent with their human rights.”[5] They highlight that many factors contribute to women being denied essential health services, including deterrence by any means.

The UN Working Group on the issue of discrimination against women in law and in practice (“WGDAW”) has made clear to the US government that under international human rights law, “states must take all appropriate measures to ensure women’s equal right to decide freely and responsibly on the number and spacing of their children.”[6] The WGDAW has called on states to ensure that women can access “non-discriminatory health insurance coverage for women, without surcharges for coverage of their reproductive health,” and to “exercise due diligence to ensure that the diverse actors and corporate and individual health providers who provide health services or produce medications do so in a non-discriminatory way and establish guidelines for the equal treatment of women patients under their codes of conduct.”[7] The Proposed Rule would do the opposite; it unfairly discriminates against the provision of abortion services.

Specifically, the WGDAW has also expressed its concerns over provisions in the PPACA related to abortion following its country visit to the US in December 2015. Specifically, it noted that, “the marketplace insurance coverage for safe and legal termination of pregnancy is far from universal…[and] [t]hus, insurance will frequently not be available for women who wish to exercise their right to terminate a pregnancy.”[8] The WGDAW went on to recommend that the US government take measures to ensure that “insurance schemes provide coverage for abortions to which women have a right under US law,”[9] in order to fulfill its human rights obligations. The Proposed Rule goes directly against this recommendation and seeks to limit the opportunities for women to access safe and legal abortions.   

The Proposed Rule will limit women’s ability to access abortion services  and as such violates the US government’s obligations to ensure women’s fundamental human rights, including to  non-discriminatory health care. 

  1. The Proposed Rule stigmatizes abortion and highlights differential treatment of this single health care procedure.

International human rights experts have found that singling out abortion as a medical procedure has contributed to its stigmatization and any “[g]ender-based discrimination in the administration of medical services violates women’s human rights and dignity.”[10] They further highlight that any stigmatization of abortion by distinguishing it from all other medical procedures causes women mental and physical suffering and therefore violates their human rights.[11] The WGDAW has urged the US government “to combat the stigma attached to reproductive and sexual health care, which leads to violence, harassment and intimidation,” and denies women the highest attainable standard of health, to which they are entitled under both international human rights law and US law.[12]

The Special Rapporteur on health has found that stigmatization of abortion, through criminal or other legal regulations, “disempowers women, who may be deterred from taking steps to protect their health in order to avoid liability and out of fear of stigmatization.” These laws and regulations can also have a discriminatory effect, in that they disproportionately affect women.[13] The subsequent marginalization and vulnerability of women as a result of abortion-related stigma and discrimination perpetuate the notion that abortion is an immoral and unsafe practice, and perpetuate and intensify violations of women’s right to health.[14]

The Proposed Rule, by singling out abortion care from all other health care services, is discriminatory and violates the US government’s obligations to ensure women’s fundamental human rights.

  1. The Proposed Rule is an example of administrative overreach and frustrates, rather than fulfills, Congressional intent.

As per Congressional intent, the PPACA allows participating insurance plans to decide for themselves whether to cover non-Hyde abortion services. The Proposed Rule is an attempt, through use of the administrative apparatus of the Executive branch, to impose logistical hurdles for insurance providers who choose to provide abortion services. This is another in a long line of proposed regulations that are unnecessary to the smooth functioning of the ACA marketplace, but are, in actuality, stealth attempts to discourage the provision of abortion services.  These types of regulations, including the Proposed Rule, are examples of administrative overreach that frustrates Congressional intent and should be rejected.

  1. The Proposed Rule imposes undue burdens on insurers which will lead to unnecessary restrictions on comprehensive health care for women.

The Proposed Rule would impose burdensome and costly administrative requirements on insurers. Insurers have expressed opposition to any requirements for itemizing specific benefits, and requiring a separate plan to be provided to eliminate one specific procedure would be onerous and against standard industry practice.[15] As a consequence of these additional administrative burdens, insurers may choose not to absorb these costs and therefore will eliminate coverage for abortions.

In conclusion, the Proposed Rule violates women’s fundamental rights under the US Constitution and international human rights law, including the rights to privacy, life, and health, and the right to be free from discrimination, torture, and cruel, inhuman or degrading treatment. Compliance with these obligations is not discretionary—it is mandatory, since domestic law can never be used as an excuse for failing to comply with international treaty obligations.[16] Furthermore, the Proposed Rule unfairly singles out abortion for special treatment, which is discriminatory and will lead to stigmatization of a legal procedure.  Finally, the Proposed Rule is an example of unnecessary administrative overreach that will impose undue additional burdens on insurers and harm consumers. For the reasons stated above, we urge you to withdraw the Proposed Rule.

If you require additional information about the issues raised in this comment, please contact Michelle Onello at This email address is being protected from spambots. You need JavaScript enabled to view it..

Sincerely,

Michelle Onello
Senior Counsel
Global Justice Center

Download the Letter

 

[1] Patient Protection and Affordable Care Act, P.L. 111-148.

[2] Office of the High Commissioner for Human Rights, Abortion, https://www.ohchr.org/Documents/Issues/Women/WRGS/SexualHealth/INFO_Abortion_WEB.pdf.

[3] Human Rights Comm.,General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, ¶ 8, U.N. Doc. CCPR/C/GC/36  (Oct.30, 2018). See also Human Rights Comm., Concluding observations on the third period report of San Marino, ¶ 15, U.N. Doc. CCPR/C/SMR/CO/3 (Dec. 3, 2015); Human Rights Comm., Concluding observations on the fifth periodic report of Sri Lanka, ¶ 10, U.N. Doc. CCPR/C/LKA/CO/5 (Nov. 21, 2014); Human Rights Comm., Concluding observations on the situation of civil and political rights in Equatorial Guinea, ¶ 9, U.N. Doc. CCPR/CO/79/GNQ (Aug. 13, 2004).

[4] Office of the High Commissioner for Human Rights, Joint Expert Statement on International Safe Abortion Day – Friday 28 September 2018 (Sept. 27, 2018), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23644&LangID=E.  

[5] Office of the High Commissioner for Human Rights, Joint Expert Statement on International Safe Abortion Day – Thursday 28 September 2017 (Sept. 27, 2017), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22167&LangID=E.

[6] Human Rights Council, Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to the United States of America, ¶65, U.N. Doc. A/HRC/32/44/Add.2 (Aug. 4, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/172/75/PDF/G1617275.pdf?OpenElement.

[7] Working Group on the issue of discrimination against women in law and in practice, Policy paper, Women's Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017),https://www.ohchr.org/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf

[8] Human Rights Council, Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to the United States of America, ¶68, U.N. Doc. A/HRC/32/44/Add.2 (Aug. 4, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/172/75/PDF/G1617275.pdf?OpenElement.

[9] Id.

[10] International Safe Abortion Day – Friday 28 September 2018 (Sept. 27, 2018), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23644&LangID=E

[11] Office of the High Commissioner for Human Rights, Joint Expert Statement on International Safe Abortion Day – Thursday 28 September 2017 (Sept. 27, 2017), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22167&LangID=E

[12] Human Rights Council, Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to the United States of America, ¶70, U.N. Doc. A/HRC/32/44/Add.2 (Aug. 4, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/172/75/PDF/G1617275.pdf?OpenElement.

[13] Human Rights Council, Interim Rep. of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health General Assembly, U.N. Doc A/66/254 (Aug. 3, 2011)., https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/443/58/PDF/N1144358.pdf?OpenElement

[14] Id.

[15] America’s Health Insurance Plans (AHIP), Comment Letter on HHS Notice of Benefit and Payment Parameters for 2016 (CMS-9944-P) (Dec. 22, 2014).

[16] Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331; LaGrand (Ger. v. U.S.), 2001 I.C.J. 466 (June 27); Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, ¶ 139 (Mar. 31) (“The rights guaranteed under the Vienna Convention [on Consular Relations] are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law.”)

Joint NGO Letter to the Office of the Special Representative to the Secretary-General on Sexual Violence in Conflict

          Joint NGO Letter to the Office of the Special Representative to the Secretary‑General on Sexual Violence in Conflict
in response to
the Framework of Cooperation between the Government of Bangladesh and the United Nations on addressing conflict-related sexual violence against the displaced Rohingya population from Myanmar hosted in Bangladesh
and
the Joint Communiqué of the Republic of the Union of Myanmar and the United Nations on prevention and response to conflict-related sexual violence.

 

25 January 2019

Dear Special Representative to Secretary-General on Sexual Violence in Conflict Patten,

We, the undersigned organizations, thank you for your commitment and efforts to advance accountability for conflict-related sexual violence (“CRSV”) and to protect survivors of such crimes, including in places where impunity has long been the rule, such as Myanmar. We share this commitment with you.

Building on this shared commitment, we are writing to express our concerns and to suggest recommendations with regard to your Office’s engagement with the Governments of Bangladesh and Myanmar, in particular the “Framework of Cooperation on addressing conflict-related sexual violence against the displaced Rohingya population from Myanmar hosted in Bangladesh between the Government of Bangladesh and the United Nations” and the “Joint Communiqué of the Republic of the Union of Myanmar and the United Nations on prevention and response to conflict-related sexual violence”.

We appreciate your leadership on the need for accountability for CRSV in Myanmar to date as outlined in your address to the United Nations Security Council in December 2017.

“The widespread threat and use of sexual violence served as a driver and push factor for forced displacement on a massive scale, and as a calculated tool of terror seemingly aimed at the extermination and removal of the Rohingya as a group. […] I urge the Council to do everything in its power to seek a swift end to the atrocities, ensure that the alleged perpetrators of sexual and other violence [committed against Rohingya women and girls] are brought to justice and create conditions for a safe and dignified future for the survivors. History will judge our action or inaction.” (S/PV.8133, pp 4-5.)

With regard to the Framework of Cooperation with Bangladesh, our core concern lies with the commitment focused on national level documentation efforts of CRSV. We are apprehensive about encouraging further documentation in light of the current documentation of Rohingya experiences. We fear the Framework will initiate further documentation undertaken by actors lacking the necessary expertise, resources and coordination.

The uncoordinated documentation of CRSV in Bangladesh by multiple actors poses a security and health risk for the interviewed survivors of such crimes due to the absence of support services treating their medical and psychological needs and of effective physical protection from documentation actors. In addition, the result of uncoordinated documentation by multiple actors may potentially undermine upcoming investigation and accountability efforts by international justice mechanisms, such as the International Criminal Court (“ICC”), which are likely to have a policy to not interview survivors who have already been approached in the past in order to avoid security risks and re-traumatization of survivors, as well as potential unreliability of testimony.

Instead of encouraging further documentation around the National Human Rights Commission, we recommend that the implementation of the Framework focuses first and foremost on the implementation of adequate medical and psycho-social support structures for (CRSV) survivors within Bangladesh. Once such structures are in place, capacity and expertise of national level documentation actors should be strengthened, including training in documenting CRSV as well as training of translators or ensuring that translators of the required language and dialect are readily available.  These are prerequisites before further documentation – in a coordinated manner – could take place.

Regarding the Joint Communiqué with the Government of Myanmar, as the report of the Independent International Fact-finding Mission on Myanmar (“FFM”) clearly outlines, Myanmar has a long and deeply entrenched history of impunity for grave crimes, including CRSV.[1] This impunity has been compounded by the absolute failure of Myanmar’s authorities – civilian and military alike – to demonstrate any willingness to investigate or hold perpetrators accountable. While eight ad-hoc commissions and boards have been set up by the Myanmar authorities since 2012 with regard to the situation in Rakhine State, the FFM determined that none meet the standards of an “impartial, independent, effective and thorough human rights investigation.” The newly constituted Independent Commission of Inquiry for Rakhine has done nothing to allay these concerns. One of the four Commissioners is a Myanmar Government official who has previously stated that Myanmar had “no intention of ethnic cleansing” and the chairperson has stated that the Commission will not “blame or finger-point”, which is at odds with the pursuit of accountability.

Furthermore, the Government’s emphasis on the work of this Commission of Inquiry, coupled with its refusal to cooperate with and allow access to impartial, international experts and bodies, including the FFM, the Special Rapporteur on Myanmar and the ICC, raise serious concerns about the Government’s commitment to accountability. These concerns also fall in line with the policy that led to the dismissal of the appeal on behalf of the two Reuters journalists Wa Lone and Kyaw Soe Oo, the most recent attempt by the Myanmar authorities to hide the atrocities committed in Rakhine State. Against this backdrop, we see a real risk of instrumentalization of your mandate by the Myanmar Government.

We were heartened to see in your statement accompanying the Joint Communiqué that “the true test of commitment will be the concrete actions taken to ensure accountability for sexual violence crimes.” We could not agree more. Accordingly, we provide the following recommendations with respect to the work of your Office in Myanmar, as well as for your forthcoming mission to the region.

  1. We urge you to review the Framework Agreement as to remove the emphasis on national documentation and discourage further documentation until support services for survivors are in place. Once this requirement is met, the capacities and expertise of national documentation actors, including translators, need to be strengthened.
  2. We ask for clear benchmarks to be set for the Myanmar Government to advance the implementation of the FFM’s key recommendations on accountability (FFM report, para 1682), in particular to:
    • Pursue all credible allegations of human rights violations and crimes under international law through prompt, effective and thorough, independent and impartial investigations including a specific focus on the investigation, prosecution and punishment for acts of sexual and gender-based violence;
    • Ratify the Rome Statute of the ICC and accept its jurisdiction as of 1 July 2002;
    • Transfer all military and other security personnel alleged to have committed crimes under international law to civilian courts;
    • Reform the domestic judicial sector by strengthening the independence of judges as well as the qualifications and expertise of judges, prosecutors and lawyers;
    • Incorporate domestic law sanctions for serious crimes under international law, serious human rights violations or violations of international humanitarian law.
    • Ensure that the proposed Protection (and Prevention) of Violence against Women Law meets international standards and brings sexual violence committed by military actors under the ambit of the law, and is tied to broader necessary legal reforms, including of the Penal Code and the Constitution.
  1. We invite the United Nations to undertake a coordinated and consistent survivor-centric approach towards the Governments of Bangladesh and Myanmar with regard to CRSV, through continuous engagement with the survivor community with the aim of understanding and identifying their needs, including medical as well as psycho-social support, and demands.

We would welcome the opportunity to meet with you and your team to discuss our concerns ahead of the upcoming mission to the region, as well as debrief afterwards. We would further welcome the opportunity to exchange with your Office on ways to highlight the importance of credible, survivor‑centric accountability efforts for CRSV and other grave crimes in the region, and possible action points for the United Nations Security Council moving forward.

Signed by

 

ALTSEAN-Burma
Amnesty International
Center for Intersectional Justice
European Center for Constitutional and Human Rights
Fédération internationale des ligues des droits de l'Homme
Global Centre for the Responsibility to Protect
Global Justice Center
Global Network of Women Peacebuilders
Human Rights Watch
Impact
International Organization for Victim Assistance
Naripokkho
Odhikar
Rohingya Women Welfare Society
Women’s Initiatives for Gender Justice

 

[1] See FFM report, A/HRC/39/CRP.2, paras 1577-1593 for structural impunity, paras 1371-1374 and 1594-1600 for the use of sexual violence in Myanmar.

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Comments in Response to Patient Protection and Affordable Care Act

Dear Secretary Azar and Administrator Verma:

The Global Justice Center (“GJC”) submits this comment in response to the Department of Health and Human Services’ (“HHS”) Proposed Rule entitled Patient Protection and Affordable Care Act, Exchange Program Integrity, published in the Federal Register on November 9, 2018 (the “Proposed Rule”).  For purposes of this submission, commentary is limited to the portion of the Proposed Rule that suggests changes related to the separate payment requirements in section 1303 of the Patient Protection and Affordable Care Act (“PPACA”).

GJC is an international human rights organization based in New York dedicated to achieving gender equality through the rule of law. For the past decade, GJC has been at the forefront of efforts to ensure that the law protects and promotes access to comprehensive sexual and reproductive health rights for women and girls around the world. As experts in women’s rights and human rights, we write to express our vehement opposition to the Proposed Rule. 

First, the Proposed Rule would impose undue and onerous burdens on both insurers and consumers that violate women’s fundamental human rights, including to non-discriminatory health care. Second, by singling out abortion for special treatment from all other health services, the Proposed Rule reinforces the already stigmatizing and discriminatory treatment of abortion under the PPACA. Third, the Proposed Rule does not, as claimed, fulfill Congressional intent, since Congressional intent under the PPACA was to allow issuers to decide for themselves whether to provide abortion coverage beyond the limited exceptions allowed under the discriminatory and harmful federal Hyde Amendment. Finally, the Proposed Rule imposes undue burdens on insurers and consumers that will lead to unnecessary restrictions on comprehensive health care for women. The outcome, and tacit intent, of the Proposed Rule is to further stigmatize abortion and to impose onerous burdens on both insurers and consumers that will embarrass women, annoy and inconvenience consumers, and increase administrative burdens on insurers, all with the ultimate aim of discouraging insurers from providing abortion coverage. As such, the Proposed Rule violates women’s fundamental rights under the US Constitution and international human rights law. For these reasons, GJC urges HHS to withdraw the Proposed Rule.

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Letter to The Honourable Fatou Bensouda, Chief Prosecutor, "Re: Preliminary Examination into the Situation of the Rohingya in Myanmar"

Dear Prosecutor Bensouda,

The Global Justice Center writes to congratulate the Office of the Prosecutor (OTP) on the decision to open a preliminary examination into the deportation of the Rohingya from Myanmar to Bangladesh. Since impunity has long been the rule and not the exception in Myanmar, this examination offers a glimmer of hope that those who have long been oppressed by Myanmar’s military will see some measure of justice. We write to the OTP today with respect to three key issues related to this preliminary examination: (1) to emphasize the need to place the gendered experiences of these crimes at the center of the examination; (2) to urge the OTP to take a broad view to the crimes over which the International Criminal Court (ICC) has jurisdiction; and (3) to provide information with respect to any analysis of positive complementarity.

On the first point, we were pleased to attend a recent event with you at the UNGA in New York “Prosecuting Sexual and Gender-based Crimes at the International Criminal Court.” We applaud the OTP’s commitment to applying a gender analysis in all areas of its work, which has been reinforced by its strong policy on sexual and gender-based crimes. We agree that consideration of the complete nature of the crimes is necessary in order to ensure effective investigations and prosecutions. We urge that this be made a priority in the preliminary examination at hand.

Recommendations for the Terms of Reference and Implementation of UN Security Council Resolution 2379 on Da’esh Accountability

Subject: Recommendations for the Terms of Reference and Implementation of UN Security Council Resolution 2379 on Da’esh Accountability

Your Excellency,

We are writing to you to call on your leadership in ensuring successful implementation of UN Security Council Resolution 2379, initiating an Investigative Team for crimes committed by the so-called Islamic State in Iraq and the Levant (ISIL, hereinafter referred to as “Da’esh”).

Below, please find a list of recommendations which we hope will be reflected in the Terms of Reference for the Resolution, with the purpose of establishing a commitment to the highest standards of international law and guaranteeing inclusiveness and accountability, including through gender justice and a victim-centered approach.

The adoption of UN Security Council Resolution 2379 on September 21, 2017 marks an important milestone in the enormous task of holding members of Da’esh accountable for their commission of war crimes, crimes against humanity, and genocide. In this respect, we particularly emphasize the need to investigate and prosecute all forms of sexual and gender-based violence which can constitute acts of genocide as well.

We hope the Investigative Team will lay the groundwork for an inclusive and comprehensive justice process for all those affected by the conflict and atrocities committed.

We thank you for your consideration.

Sincerely,

Global Justice Center Eyzidi Organization for Documentation
Iraqi Al-Amal Association   Iraqi Women Network
Madre Yazda

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Global Justice Center and the Bar Human Rights Committee Send a Submission to the International Criminal Court Urging the Opening of a Preliminary Examination

This Submission is presented to the Office of the Prosecutor (OTP or Office) of the International Criminal Court (ICC or Court) by the Global Justice Center and the Bar Human Rights Committee of England and Wales, requesting the opening of a preliminary examination into genocide and other crimes committed against the Yazidis. 

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Open Letter to Commissioner Georgieva

GJC writes open letter to Commissioner Georgieva of the European Commission in response to her September 8, 2014 letter explaining the European Union's position on abortion and the Geneva Conventions.

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Letter to President Obama, "Re: Ending the Deadly Denial of Abortion Services to Girls and Women Raped in War"

On the 65th Anniversary of the Geneva Conventions, GJC writes to President Obama asking him to issue an Executive Order which restores, at a minimum, the rape, incest and life endangerment exceptions to the Helms Amendment and affirms the rights of girls and women raped in war to all necessary medical care under the Geneva Conventions, including safe abortion.

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Letter to Commissioner Kristalina Georgieva: Re: The Commission’s Policy on Abortions for Women and Girls Impregnated by Rape in Armed Conflict

GJC writes a letter to Kristalina Georgieva, European Commissioner for International Cooperation, Humanitarian Aid and Crisis Response, to urge the European Commission to change its humanitarian aid policy in order to uphold the rights of women and girls raped and impregnated in armed conflict under the Geneva Conventions. 

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