Q&A: The International Criminal Court Investigation into the Situation in Bangladesh/Myanmar

On 14 November 2019, the International Criminal Court (“ICC” or “the Court”) authorized the Court’s Prosecutor to investigate alleged international crimes occurring during a wave of violence in Rakhine State, Myanmar in 2016 and 2017. The investigation follows a brutal campaign of violence by Myanmar’s security forces against Myanmar’s Rohingya Muslims. These so-called “clearance operations” were conducted through widespread and systematic murder, rape and sexual violence, and other abuses that forced more than 740,000 Rohingya to flee to Bangladesh.

The ICC Prosecutor’s investigation, and any prosecutions that result, is one process among many aimed at accountability for crimes committed by Myanmar’s security forces (Tatmadaw). While somewhat limited in scope, the investigation carries the potential to hold individuals responsible for grave violations against the Rohingya and other ethnic minorities.

This fact sheet answers fundamental questions about the ongoing ICC investigation and individual criminal responsibility for crimes committed against the Rohingya.

 
   

Download Fact Sheet 

 

Myanmar’s Proposed Prevention Of Violence Against Women Law - A Failure to Meet International Human Rights Standards

The introduction of the Prevention of Violence against Women Law (PoVAW) in Myanmar is an important opportunity for Myanmar to at long last ensure a comprehensive framework for addressing sexual and gender- based violence, bring its domestic laws in line with international obligations, and ensure adequate redress for violence to all women. This requires, however, that Myanmar passes and implements the law in accordance with the highest standards possible; some standards are not discretionary but rather firm commitments Myanmar is required to uphold, including under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Geneva Conventions, and customary international law. Myanmar’s obligation to protect all women from violence is governed by the legal principle of “due diligence,” meaning that the Myanmar government is responsible for taking measures to prevent, investigate, prosecute, punish, and provide reparations for all acts of gender-based violence committed by both private and public officials.

The Myanmar government has long shown a lack of commitment to breaking the cycle of impunity for widespread sexual and gender-based violence, a problem that is exacerbated by broader structural barriers with respect to Myanmar’s military justice system, and a lack of robust domestic options for accountability. Recently, Myanmar has rejected any responsibility for sexual and gender-based violence in its Independent Commission of Enquiry (ICOE) report, engagement with the case filed by The Gambia at the International Court of Justice (ICJ), nor CEDAW review. The introduction of this law also comes at a critical time of renewed conversations regarding justice and accountability, with specific respect to the crimes committed against the Rohingya, via processes at the ICJ, the International Criminal Court (ICC), and domestic courts in third party states under the theory of universal jurisdiction.

It is imperative that any efforts to draft and pass a new law take meaningful steps towards addressing sexual and gender-based violence. Myanmar has also received consistent recommendations from the CEDAW Committee, United Nations (UN) Secretary-General, and Special Rapporteur on the situation of human rights in Myanmar to ensure the new law complies with international standards; however, this version of the law patently does not meet those standards.

 
   

Download Fact Sheet 

 

Myanmar - UPR Submission to the UN Human Rights Council

I. Introduction

The Government of Myanmar (the “Government”) is obligated in its third cycle Universal Periodic Review (“UPR”) to provide detailed information on how it has implemented recommendations on human rights protections made during its second cycle UPR in 2015, as well on developments in human rights in Myanmar since 2015. With respect to progress regarding justice & accountability for mass atrocities, legal reform, including with respect to women’s rights, and ending discrimination, the Government has on the whole failed to make meaningful progress on recommendations from the previous UPR. In addition to the lack of progress on key issues that were the subject of concern during the last UPR, the human rights situation in Myanmar has largely regressed, not the least as a result of the genocidal targeting of the Rohingya in so-called “clearance operations” in 2016 and 2017.

The analysis below explains were the Government has not met its international obligations germane to the UPR and previously accepted UPR recommendations. It includes specific recommendations to the Government on meeting its international obligations to prevent and provide justice for mass atrocities in Myanmar, especially sexual and gender-based violence, and to eliminate discriminatory laws and policies.

 
   

Download the Full Submission 

 

(Updated) Q&A: The Gambia v. Myanmar – Rohingya Genocide at The International Court of Justice

On 11 November 2019, the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. Two months later at the request of The Gambia, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeds. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide.

The Gambia’s case focuses on the actions of Myanmar’s security forces, starting in October 2016 and then again in August 2017, where they engaged in so-called “clearance operations” against the Rohingya, a distinct Muslim ethnic minority, in Rakhine State. 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. As a result, an estimated 745,000 people – mostly ethnic Rohingya – were forced to flee to Bangladesh. The “clearance operations” followed decades of institutionalized discrimination and systematic persecution of the Rohingya, including the passage of laws that stripped the Rohingya of their citizenship and restricted their religious freedoms, as well as reproductive and marital rights.

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 evoke specific obligations and responsibility under international law. In its final report, published in September 2019, the FFM concluded that “the State of Myanmar breached its obligation not to commit genocide” and found that Myanmar “continues to harbor genocidal intent” towards the Rohingya, emphasizing the need for accountability.

This fact sheet answers fundamental questions about the ongoing ICJ case, Myanmar’s responsibility for genocide, and its impact on the Rohingya population. (Answers to questions about the early stages of the lawsuit are here.)

 
   

Download Fact Sheet 

 

Bangladesh: End Internet Blackout to Protect Public Health of Rohingya Refugees and Host Communities

(BANGKOK, April 2, 2020)—The Government of Bangladesh should immediately take all necessary steps to protect Rohingya refugees and nearby host communities in Cox’s Bazar District from COVID-19 infection, said Fortify Rights and 49 human rights organizations in an open letter today. The authorities should immediately lift all restrictions that prevent Rohingya refugees from freely accessing mobile communications and the internet and also halt the construction of fencing aimed to confine Rohingya refugees in camps.

Download the Full Letter 

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

Your Excellency,

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

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

Download the Full Letter 

Myanmar’s Independent Commission of Enquiry: Structural Issues and Flawed Findings

On January 20, 2020, Myanmar’s Independent Commission of Enquiry (“ICOE”) submitted its final report to Myanmar’s government. The report, which was initially due on July 30, 2019, was instead submitted three days before the International Court of Justice handed down its unanimous decision on provisional measures in The Gambia v. Myanmar. With the mandate to “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA,” Myanmar has relied on the work of the ICOE since its creation to object to international efforts, including those of the UN Security Council, to ensure accountability for the crimes against the Rohingya.

The ICOE is not the first, but the eighth ad-hoc commission and board set up by Myanmar since 2012 with regard to the situation in Rakhine State; however, the UN Independent International Fact-Finding Mission on Myanmar has determined that none of these commissions, including the ICOE, meet the standards of an “impartial, independent, effective and thorough human rights investigation.” This Factsheet seeks to provide context and analysis on the ICOE and its final report and can be used by the international community to understand the report and its analysis.

 
   

Download Fact Sheet 

 

Urgency is Key for Rohingya Repatriation

Rohingya refugee women hold placards as they take part in a protest at the Kutupalong refugee camp to mark the one-year anniversary of their exodus in Cox's Bazar, Bangladesh
Maggie Moore/USAID

By Nishan Kafle

Although the Rohingya of Burma have been subject to unrelenting government persecution for decades, it took an unprecedented form in 2017 when an estimated 530,000 Rohingya were violently driven from their home in Rakhine State in a military campaign that UN experts have called a genocide.

South Asia is no stranger to forced migration. Between 1991 and 1993, more than 100,000 Nepali speaking Bhutanese—commonly known as Lhotshampas—were forced out of Bhutan into Eastern Nepal. This was the result of the “One Nation, One People” policy, adopted in the 1980s, which aimed to shield the majority “Druk” Bhutanese identity from any Nepali influences. As a result, a mass exodus ensued with thousands of Bhutanese forced out of their homes into Eastern Nepal. Nepal, already a poor country under a strict monarchy, was ill-equipped to deal with such a great influx of refugees. And so, the Bhutanese were forced to live in squalid conditions under constant discrimination from people with whom they ostensibly shared a language and tradition.

Q&A: The Gambia v. Myanmar – Rohingya Genocide at The International Court of Justice

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.

On November 11, 2019, The Republic of The Gambia filed suit against Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. This momentous lawsuit brings a critical focus to Myanmar’s responsibility as a state for genocide and compliments ongoing investigations into individual accountability. This fact sheet answers fundamental questions about the ICJ case, and seeks to clarify available avenues for justice for the crimes committed against the Rohingya population.

 
   

Download Fact Sheet 

 

Reproducing Impunity: Gendering the Draft Convention on Crimes against Humanity

The Draft Convention on Crimes against Humanity offers an opportunity to improve accountability for grave violations of international law; however in its current form, it continues to limit justice for sexual and gender-based violence.

The International Law Commission (“ILC”) undertook the task of compiling a Draft Convention on Crimes against Humanity in 2014. In the ILC’s first draft, it replicated the definition of crimes against humanity verbatim from the Rome Statute of the International Criminal Court (“Rome Statute”)[1] for the sake of expediency, sparking unprecedented engagement from gender groups and experts to reform the provisions. As a result, during the final cycle of the ILC drafting process, 20 of the 33 states that submitted comments and a cohort of 23 UN experts called for the removal of an outdated definition of gender that failed to recognize a basis for persecution and limited justice and accountability for such crimes.

Removing the gender definition was a crucial step towards recognizing that it is not enough to merely replicate existing language without reckoning with legal developments and the gendered dimensions of mass atrocity crimes. However, the call did not go far enough to address the draft treaty’s inadequacies on sexual and gender-based violence, including restrictive definitions of torture, enslavement, and other sexual and gender-based acts “of comparable gravity” that constitute crimes against humanity. This factsheet will focus on one such crime under the treaty—forced pregnancy.

Download Fact Sheet 

Countries are legally bound to punish Myanmar’s genocide

Excerpt of Washington Post Letter to the Editor from GJC Deputy Legal Director Grant Shubin.

The Aug. 25 editorial “For Myanmar, impunity, not accountability” said Western governments should do more to hold the Myanmar military and its backers to account for horrific crimes against the Rohingya. But that lets the West off the hook considerably for what is actually a binding legal obligation as well as a moral one.

The editorial noted that the United Nations fact-finding mission on Myanmar invoked the Genocide Convention in its condemnation of the military’s atrocities. Parties to the convention, which includes most Western nations, are obligated to do everything within their power to prevent and punish Myanmar’s genocide. This means bringing the issue of individual and state responsibility to the Security Council, which should lead to a resolution referring the situation to the International Criminal Court.

Read the full letter

Bringing a Gender Perspective to Crimes Against Humanity, Genocide and War Crimes

Excerpt ofLSE Women, Peace and Security blog post that quotes GJC President Akila Radhakrishnan.

International bodies must recognise the importance of publicly acknowledging the gendered experiences that people face rather than treating gender analysis as an ‘add on’. Dr Sheri Labenski details the discussion from the recent Centre event “What Does a Gender Perspective Bring to Crimes Against Humanity Genocide, and War Crimes?” where speakers Patricia Viseur Sellers and Akila Radhakrishnan, discussed crimes against humanity and genocide respectively, detailing reasons why a gendered approach should be applied to international offences and their prosecution.

Read the full article

The International Criminal Court Can Help End Impunity for Gender-Based Violence in its Investigation of the Rohingya

Rohingya refugee women hold placards as they take part in a protest at the Kutupalong refugee camp to mark the one-year anniversary of their exodus in Cox's Bazar, Bangladesh
REUTERS/Mohammad Ponir Hossain

Also published by Ms. Magazine

By Katherine Comly

Ask any feminist how they think their government is doing at holding perpetrators of sexual violence accountable and most would respond with an emphatic “poorly”— at best. Internationally, there are moves being made to tackle sexual violence, like awarding the Nobel Prize to Nadia Murad and passing the first Security Council Resolution on the issue. Still, they go nowhere near solving systemic problems.

There currently exists, however, a major opportunity to reform how the international justice system addresses sexual violence: the investigations into genocidal violence against the Rohingya in Burma. A gendered understanding of these crimes is essential and will fulfill the international community’s responsibility to recognize and punish all forms of genocidal violence.

Ending Impunity for Gender-Based Violence in Genocide

Excerpt ofMs. Magazine op-ed by GJC Legal Intern Katherine Comly.

Ask any feminist how they think their government is doing at holding perpetrators of sexual violence accountable and most would respond with an emphatic “poorly”—at best. Internationally, there are moves being made to tackle sexual violence, like awarding the Nobel Prize to Nadia Murad and passing the first Security Council Resolution on the issue. Still, they go nowhere near solving systemic problems.

There currently exists, however, a major opportunity to reform how the international justice system addresses sexual violence: the investigations into genocidal violence against the Rohingya in Burma. A gendered understanding of these crimes is essential and will fulfill the international community’s responsibility to recognize and punish all forms of genocidal violence.

Read the Full Op-Ed

Experts warn ongoing abuse precludes Rohingya return

Excerpt ofAnadolu Agency article that quotes GJC President Akila Radhakrishnan.

Quoting a Thursday report released by the UN Fact-Finding Mission documenting and analyzing sexual and gender-based violence committed by Myanmar’s military, international humanitarian law organization Global Justice Center (GJC) President Akila Radhakrishnan said in a statement: "To date, no military perpetrator of sexual violence has been held accountable in Burma [Myanmar] for their crimes."

“Sexual and gender-based violence is, at its core, an expression of discrimination, patriarchy, and inequality,” said Radhakrishnan. “As a result, accountability for these crimes must be holistic and seek to address and transform the root causes of violence.”

Read the full article

"That's Illegal" Episode 11: Justice and the Genocide of the Rohingya

Two years ago, hundreds of thousands of ethnic Rohingya were violently driven from their homes in Burma in a military campaign that the United Nations has characterized as genocide. To this day, the military dictatorship who carried out these crimes has evaded any meaningful accountability.

Simon Adams, an expert on mass atrocity crimes and director of the Global Center for the Responsibility to Protect, joins That's Illegal to discuss worldwide efforts to get justice for the Rohingya. Akila Radhakrishnan, director of the Global Justice Center, also joins the program.

Enjoy this episode? Follow us on iTunes and Soundcloud!

Five Years After Genocide, Yazidis are Still Waiting for Justice

By Maryna Tkachenko

“Today, the Yazidis have largely been abandoned” — Nadia Murad, Nobel Peace Prize recipient and Yazidi survivor

August 3, 2014 changed the Yazidi community of Sinjar forever. The terrorist group Daesh killed and enslaved thousands of Yazidis, members of a small religious minority in northern Iraq that have been historically persecuted for being “devil worshippers.” In addition to carrying out coordinated attacks of violence against the group as a whole, Daesh explicitly targeted women and girls by inflicting widespread sexual violence in the form of rape, torture, and forced marriage. These gendered acts of the Yazidi genocide served as tools for recruitment, conversion, and forced indoctrination.

Five years later, despite a growing body of evidence, no Daesh fighter has been prosecuted for genocide of the Yazidi. In 2016, the United Nations recognized the attacks as a genocidal campaign, but Yazidis are still waiting for justice, hoping to return one day to their homes on the Sinjar Mountain.

“Never Again” Means Holding the Trump Administration Accountable

Excerpt ofMs. Magazine op-ed by GJC Development and Operations Assistant Sophia Fiore.

When Rep. Alexandria Ocasio-Cortez compared the detention centers along the southern border of the U.S. to concentration camps, she sparked a heated debate about whether the facilities met that definition. In the following days, the press spent more time picking apart her word choice than focusing on the dire conditions in the detention centers that have led to severe health conditions—and, in some cases, the death of detainees.

Many find it difficult to accept that these horrors occur, especially in the U.S. We say “never again,” but are blind to the assaults on human rights and the dehumanization of people taking place every day on our watch.

Let’s not mince words: The conditions at the border blatantly violate international standards and the international legal obligations of the U.S.

Read the Full Op-Ed

The Day of International Criminal Justice: Prosecuting Gender-Based Persecution

By Maryna Tkachenko

Today is the Day of International Criminal Justice, marking the 21st anniversary of the 1998 Rome Statute, the treaty that established the International Criminal Court (ICC). In terms of international justice, the ICC is the only permanent institution that aims to hold perpetrators of genocide, crimes against humanity, war crimes, and crimes of aggression accountable. Created to investigate and prosecute mass atrocity crimes, the ICC offers us legal mechanisms to bolster the rule of law, ensure justice for victims, and establish a normative framework that can deter future human rights violations. Although the court continues to face setbacks in gaining the support of powerful states and strengthening its authority, this July the world witnessed a monumental moment in the ICC’s history of prosecuting sexual and gender-based crimes.

Joint Statement on the Assignment of the Situation in Myanmar and Bangladesh to the ICC Pre-Trial Chamber III

FOR IMMEDIATE RELEASE – June 28, 2019

[NEW YORK, NY]– The Global Justice Center, European Center for Constitutional and Human Rights, Naripokkho, and Women’s Initiatives for Gender Justice welcome recent developments at the International Criminal Court (ICC) concerning the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar. Both the intention of the Office of the Prosecutor to undertake an investigation, and the assignment of the situation to Pre-Trial Chamber III bring the ICC one step closer to providing accountability for the crimes committed against the Rohingya.