ICC Case Could Make History with Gender Prosecution

Excerpt of Women's Media Center op-ed from GJC Legal Intern Sarah Coniglio.

Last week, the International Criminal Court (ICC) began its presentation of what could be a landmark case for the prosecution of gender-based crimes. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (“Al Hassan”) has been charged with war crimes and crimes against humanity, including torture, rape, sexual slavery, and gender persecution surrounding Mali’s 2012-2013 internal armed conflict. The ICC has not had a standing conviction for persecution on the basis of gender due to the overturning of the conviction of former Congolese military leader, Jean-Pierre Bemba, in 2018.

The Al Hassan case has the potential to shine light on the unique harm perpetrators commit against individuals based on their gender, which enforces patriarchal social norms and increases the potency of their crimes. It could also chart a path forward for international criminal law to define gender.

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Canada and the Netherlands to Intervene in Myanmar Genocide Case at World Court

NEW YORK — The governments of Canada and the Netherlands today announced their intention to intervene in the genocide case against Myanmar at the International Court of Justice.

In a joint statement, the foreign ministries of both governments said the move furthers their solemn pledge to prevent genocide and hold those responsible to account. They also made clear their intention to “pay special attention to crimes related to sexual and gender-based violence, including rape.”

Akila Radhakrishnan, President of the Global Justice Center, had the following response:

“Today’s announcement from Canada and the Netherlands is nothing short of historic. The Gambia took the brave and necessary step to file the case late last year, but the cause of the Rohingya must be a cause of the whole world. Canada and the Netherlands took a major step today towards fulfilling their legal and moral duty to act against genocide.

“Just as important as their intention to intervene is their promise to focus on gendered crimes of genocide like sexual and gender-based violence, which was central to the atrocities against the Rohingya. Too often, gendered experiences do not translate to justice and accountability efforts and leave the primary targets of those crimes — women and girls — behind. This is an important step forward to address that gap and Canada and the Netherlands should be applauded for this move.”

Rohingya Symposium: From Rhetoric to Justice–Ensuring a Gender Perspective in Accountability Proceedings for the Rohingya Genocide

Excerpt of Opinio Juris op-ed from GJC President Akila Radhakrishnan.

This August marks not only the 3rd anniversary of the start of the Rohingya genocide, but also the 6th anniversary of the start of the Yazidi genocide. Beyond starting in the same month, these two genocides share some key features, not the least of which is that both were conducted along highly gendered lines. In the two we see some similar patterns in the way there were carried out, even where they vary significantly in the details; the separation of men and women, the subsequent fast killings of men and boys, and systematic sexual violence against women and girls.

In 2016, in its analysis of the Yazidi genocide, “They Came to Destroy,” the Independent International Commission of Inquiry on the Syrian Arab Republic (“Syria COI”) found that “ISIS fighters systematically rape Yazidi women and girls as young as nine.”

In 2018, in its analysis of the Rohingya genocide, the Independent International Fact-Finding Mission on Myanmar, found that sexual violence was a “hallmark” of the Myanmar military’s operations against the Rohingya.

And yet, ongoing accountability processes for both genocides risk leaving gendered experiences, including sexual violence, behind.

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Mandatory Birth Control: China Weaponizes Reproductive Health Against Uyghur Women

Excerpt of Ms. Magazine op-ed from GJC Legal Intern Shelby Logan.

Women and their reproductive health are at the center of one of the most severe humanitarian crises in recent memory. Yet, while some may have heard of the persecution of China’s Uyghur minority, the gendered campaign of forced birth control, which many experts say indicates a serious risk of genocide, is less understood. It is a clear violation of international law—but what is less clear is the path forward for accountability.

In November 2019, 403 pages of internal documents from China’s ruling Communist Party were leaked to the global community. They detailed how authorities have corralled as many as a million ethnic Uyghurs, Kazakhs and others into internment camps and prisons over the past three years. Survivors of the camps claim to have experienced extreme conditions, including torture. 

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Inequality before the law

Excerpt of International Bar Association article that quotes GJC President Akila Radhakrishnan.

In many jurisdictions, the legal definition of rape doesn’t meet international human rights standards. In late 2018, only eight European jurisdictions had consent-based definitions, according to Amnesty International. In Myanmar, the legal definition of rape is a colonial legacy dating back to the 1861 penal code. Akila Radhakrishnan, President of the Global Justice Center, asks ‘why, in 2020, are we clinging to the standards of 1861?’

Radhakrishnan asks us to look to existing legal frameworks promoting gender equality for solutions. For example, the Convention on the Elimination of all Forms of Discrimination Against Women is a two-part framework that bars discrimination but also requires states to pursue measures towards substantive equality.

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Genocide: China’s reported persecution of Uighurs exposes states’ legal obligations under international conventions

Excerpt of International Bar Association article that quotes GJC President Akila Radhakrishnan.

For now, the United States government has imposed sanctions on state officials in China and US companies doing business with China, and other countries have been urged to act.

The legal obligations on states to intervene are determined in part by their capacity to influence the perpetrators, notes Akila Radhakrishnan, President of the Global Justice Center. She asks, ‘are sanctions a full utilisation of the US’ capacity to intervene?’

Further, Radhakrishnan says ‘states are claiming they can’t act until something is definitely found to be a genocide, but that requires a level of evidence and information that surpasses where legal obligations to act kick in’.

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Myanmar’s Protection Bill falls Short of Addressing Violence against Women

Excerpt of Inter Press Service article that quotes GJC President Akila Radhakrishnan.

A legislation that aims to protect women against violence in Myanmar, while long overdue, is raising concern among human rights advocates about its inadequate definition of rape, vague definition for “consent”, and anti-lesbian, gay, bisexual, and transgender rhetoric.

Myanmar is soon to see the latest version of its Prevention of and Protection from Violence Against Women (PoVAW) introduced in parliament. But the Global Justice Centre (GJC), an international human rights and humanitarian law organisation focusing on advancing gender equality, has pointed out that the legislation falls short of addressing violence against women.

According to GJC, the language used in the law borrows from Myanmar’s 1861 Penal Code and thus perpetuates antiquated understandings of rape, such as; considering rape as violence committed only by men, the definition of “rape” constituting only of vaginal penetration, and no acknowledgement of marital rape.

“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,” the GJC analysis has claimed.

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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.

 
   

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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.

 
   

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UN Secretary-General Releases Report on Conflict-Related Sexual Violence

NEW YORK — United Nations Secretary-General António Guterres released a report this week on sexual violence in conflict. It is the 11th report on the issue since the creation of the secretary-general’s Special Representative on Sexual Violence in Conflict in 2010.

Grant Shubin, legal director of the Global Justice Center, issued the following statement:

“The secretary-general’s report should be commended for clear progress it makes in several areas, including recognizing the intersecting identities of survivors, the need to move from political commitments to actual compliance, and the focus on a rights-based survivor centered approach. Still, we need to see stronger commitments to ensure sexual and reproductive health for survivors.

“We’re a year out from a Security Council resolution thatcalled for a survivor-centered approach to conflict-related sexual violence and nevertheless are witnessing unprecedented attacks on women's bodily autonomy. The secretary-general could have made it unequivocally clear, like he has in multiple reports in the past, that we must fund and support comprehensive and non-discriminatory sexual and reproductive care, including abortion services and emergency contraception.”

Notably, the secretary-general’s report again included Myanmar’s military, the Tatmadaw, in its annex of parties responsible for conflict-related sexual violence.

“We should note the report’s inclusion of the Tatmadaw is directly contrary to what Myanmar’s internal investigation, the ICOE, found. This is another reminder that the ICOE was not a credible investigative body and did not produce a credible report. Domestic avenues for real accountability in Myanmar are non-existent.”

Justice for genocide: Yazidis hopeful as Islamic State trial opens in Germany

Excerpt of Al-Monitor articles that quotes GJC President Akila Radhakrishnan.

“Genocide, crimes against humanity and war crimes fall under this bucket [of universal jurisdiction],” explained Akila Radhakrishnan, president of the New York-based Global Justice Center.

“It’s a recognition that when these serious international crimes happen, they are a concern not just for the country where they occurred, but they are a concern to everybody.”

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First Yazidi Genocide Trial Commences in Germany

Excerpt of Just Security articles that features GJC President Akila Radhakrishnan.

As outlined by Sareta Ashraph and Akila Radhakrishnan, sexual violence forms an integral part of how genocide has been committed towards Yazidi women and girls. Yet sexual slavery is often mischaracterized as a recent or modern form of slavery, as highlighted by Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum in their discussion of the Habré trial. Consequently, it is vital in this context to understand the gendered dimensions of slavery and the slave trade, which include the relation of both types of criminal conduct to sexual violence.

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UN Secretary-General Releases Report on Impact of COVID-19 on Women

NEW YORK – United Nations Secretary-General António Guterres released a report today on the impact of COVID-19 on women and girls.

Akila Radhakrishnan, president of the Global Justice Center, issued the following statement:

“UN Secretary-General Antonio Guterres has taken important leadership to highlight the gendered impact of COVID-19, first with his call to prevent violence against women, and today with his policy brief on the impact of Covid-19 on women and girls. All crises have a gendered impact, and the secretary-general’s leadership in helping to shed light on this issue is important. We now look to states to take meaningful efforts to address these gendered impacts and make them the center of all responses. This should include, first and foremost, the equal representation of women in the decision making and planning of responses.

"We have seen around the world the failure of states to adequately take human and women’s rights into account. For example, policymakers in the United States are using COIVD-19 measures as a pretext to curb access to sexual and reproductive rights, in particular abortion. The secretary-general’s brief importantly recognizes that the provision of such services is central to women’s health and rights. A human and women’s rights informed approach should be leading to states working to make key services like abortion, more accessible, not less.

"As COVID-19 continues to lay bare the inequalities in our society, states must ensure that their responses take gendered impacts into account."

UN Secretary-General Delivers Address on Violence Against Women During COVID-19 Quarantine

NEW YORK – United Nations Secretary-General António Guterres gave an address today on violence against women living under quarantine measures issued to stop the spread of COVID-19.

Akila Radhakrishnan, president of the Global Justice Center, had the following response:

“We applaud the Secretary-General for his important call today to end violence against women, which recognizes one of the key gendered impacts of crises situations such as COVID-19. 

“Like his call for a global ceasefire, today’s call recognizes how violence and crisis situations exacerbate existing inequalities in society and emphasize the need to center those most impacted in responses. However, to date, we have consistently seen that COVID-19 responses have inadequately taken women’s rights and human rights into account. And there’s been a lack of inclusivity in the groups responsible for crisis response and decision-making. 

“As the Secretary-General recognized, violence against women requires a multi-faceted response, including access to support services and shelters and judicial systems. We hope that states heed this important call and take immediate measures to ensure that measures are taken to prevent and respond to domestic violence, and ensure that all measures are grounded in human rights and involve an inclusive group of women in its design and decision-making.”

Latin American Feminists Are Rising Up Against Violence. The International Community Should Join Them.

Excerpt of Ms. Magazine op-ed by GJC's Danielle Hites.

Latina feminist activists have poured onto the streets to challenge government and police officials for their failure to protect women from this lethal discrimination. Pointing to the misogynist and machismo institutions, they have made clear that their inaction is complicity.

The international community must lift these voices and hold governments accountable to their obligations to protect the rights to life, equality and freedom from torture.

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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.”

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Behind Myanmar’s Military Alibi: A Path for Compliance with the ICJ’s Order to Protect Rohingya

Excerpt of Just Security op-ed by GJC's Akila Radhakrishnan and Grant Shubin.

In the wake of the ruling from the International Court of Justice (ICJ) ordering Myanmar to prevent genocide against the Rohingya going forward, the initial excitement was tempered by pragmatics—how this important court order can be enforced so that it actually protects the 600,000 Rohingya who remain in Rakhine State.

To be sure, there is no confusion that these measures are binding—as the court noted, they create international legal obligations that require Myanmar’s compliance. But how can the international community guarantee that Myanmar actually does anything? And does Myanmar’s civilian government have the capacity to do what is needed?

The answers to these questions are mixed, generally relying on exertion of geopolitical pressure, including through the United Nations Security Council, to which the order has been transmitted. As a general rule and absent a concrete enforcement mechanism, ICJ orders have a reliable compliance rate. However, looking at the Myanmar case in context, and in particular the measures requiring prevention of the commission of genocide by Myanmar’s military, compliance will require a serious and concerted effort by both the international community and the civilian government.

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Myanmar’s Silence on Rape Against Rohingya Is Cruel and Dangerous

Excerpt of Pass Blue op-ed by GJC President Akila Radhakrishnan.

Last month, the world was struck by an unusual image — that of a Nobel Peace Prize laureate, Aung San Suu Kyi — standing in court to defend and deny genocide. What was striking was not only what she and Myanmar’s legal team said but also what wasn’t said: the total failure of Myanmar to respond to the allegations of mass sexual violence against the Rohingya, including rape.

As Prof. Philippe Sands, counsel for The Gambia, which brought the case against Myanmar, said, “Madame agent, your silence says far more than your words.”

In fact, the words “sexual violence” passed through the lips of Myanmar’s team just once during the three-day hearings at the International Court of Justice in December, only to say that it is “a phenomenon that regrettably occurs in many parts of the world and that we all condemn unequivocally.”

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There can be no real accountability in Myanmar if women remain on the sidelines

Excerpt ofWomen's Media Center op-ed co-authored by GJC Senior Burma Researcher Phyu Phyu Sann.

Myanmar presents one of the world’s most difficult challenges to combating impunity, assisting victims, and reforming the institutions responsible for committing sexual violence and other crimes in conflicts. For years, women in Myanmar have called on the international community to intervene to put meaningful pressure on their human rights abusers. They are demanding an end to military control in the country and accountability for perpetrators of sexual violence and other egregious crimes against women.

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Gender Inequality and Sexual Violence in Myanmar: Part of the Problem is Preventing a Cure

Excerpt ofMizzima op-ed by GJC Senior Burma Researcher Phyu Phyu Sann & GJC Special Counsel Michelle Onello.

When it comes to protecting women from violence in Myanmar, what little difference a year makes. Last year during the annual 16 Days of Activism against Gender-Based Violence, the Government pledged to submit a Prevention of and Protection from Violence Against Women (PoVAW) Law to Parliament in early 2019 and give “priority and focus” to protecting women and children from violence.  As we approach another 16 Days of Activism, the PoVAW law, in the drafting stage since 2013, has not yet been submitted to Parliament, making clear that protecting women from violence is far from a priority or focus for the current Government.

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