Beijing+25: Push Back Against the Pushback on Women’s Rights

By Maryna Tkachenko

Next year, the international community will mark the 25th anniversary of the Fourth World Conference on Women. Back in 1995, the adoption of the Beijing Declaration and Platform of Action was celebrated as a promising commitment to gender equality, development, and peace. As Hillary Clinton declared that “human rights are women's rights and women's rights are human rights, once and for all,” the world witnessed a turning point for the global agenda on the advancement of women. A quarter of a century later, the fight to empower all women and girls and achieve gender parity is far from over. In the midst of growing backlash against women’s equality, shaping the Beijing+25 agenda must be a priority.

Leading up to the Beijing+25 conferences in 2020—which will be hosted in Mexico City and Paris—we must focus on the key issues surrounding women’s rights. Access to sexual and reproductive health rights around the world must be at forefront of the conversation,  in addition to fighting the persistence of gender discrimination, sexual violence, and oppression. Next year’s agenda cannot ignore the Global Gag Rule, abortion services for women and girls raped in war, and women’s right to be free from gender-based violence and degrading treatment. None of this can be done without implementing a feminist approach to humanitarian aid.

Much More Than Language: How the US Denied Survivors of Rape in Conflict Lifesaving Care

Excerpt of Women Under Siege op-ed by GJC Deputy Legal Director Grant Shubin.  

On Wednesday, April 23, 2019, the UN Security Council adopted Resolution 2467 during the Council’s annual Open Debate on Conflict-Related Sexual Violence. .

After months of German-led negotiations, passage of the Resolution ultimately came down to sexual and reproductive health (SRH)—specifically, whether the U.S. would veto its inclusion in the final text.

The U.S. justified its position by claiming that SRH is a euphemism for abortion services. Not only is this not true—SRH includes, among other things, contraception, safe abortion services, HIV prevention, and prenatal healthcare—but even if it were, abortion services for survivors of sexual violence save lives.

Unsafe abortion causes the deaths of 47,000 people each year and leaves another 5 million with some form of permanent or temporary disability. They may suffer complications, including hemorrhage, infection, perforation of the uterus, and damage to the genital tract or internal organs. In fact, the consequences of denying abortion services have been found to be so severe that it can amount to torture and other inhuman or degrading treatment.

The international community cannot become accustomed or complacent to the Trump administration’s use of domestic politics to hold international rights hostage. Because it is more than just words that are given up last minute on the floor of the Security Council—it’s women’s lives.

Read the Full Op-Ed

UN Security Council Adopts Resolution 2467

FOR IMMEDIATE RELEASE – April 23, 2019

[NEW YORK, NY] – Today, the United Nations Security Council adopted Resolution 2467 on Women, Peace and Security. Although the resolution purports to address the needs of victims of sexual violence in conflict, it contains no direct references to reproductive health—a key component of necessary and comprehensive medical care. This last-minute compromise was made to avoid a certain veto by the United States government.

"The Prosecutors" Screening at the United Nations

From April 25, 2019 18:15 until 20:00

At United Nations Headquarters, New York City, CR11

Speakers:

  • H.E. Ms. H. Elizabeth Thompson, Permanent Representative of Barbados to the United Nations
  • Pramila Patten, Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict
  • Karim Khan QC, Special Adviser and Head of UN Investigative Team to promote accountability for crimes committed by
  • Susana SáCouto, Director, War Crimes Research Office, American University Washington College of Law
  • Leslie Thomas, Director and Producer

Overview:

The Prosecutors is a documentary that tells the story of three dedicated lawyers who fight to ensure that sexual violence in conflict is not met with impunity. Filmed over five years on three continents, it takes viewers from the Democratic Republic of Congo to Bosnia and Herzegovina to Colombia on the long journey towards justice.

The Global Justice Center is proud to co-sponsor this event alongside the Permanent Missions of the United Kingdom, Colombia, Canada, Chile and Costa Rica to the UN and Women’s Initiatives for Gender Justice. Join us for a 30-minute screening of The Prosecutors, followed by a panel about prosecuting sexual violence in conflict. 

Iraq: Submission to the United Nations Universal Periodic Review

Submission to the UN Human Rights Council

Universal Periodic Review – 34th Session

Iraq

I. Introduction

  1. In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that the Council pay particular attention to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.
  2. In the last Universal Periodic Review cycle for Iraq, multiple recommendations were made and accepted by the country with respect to ensuring national legislation was fully in line with international standards,[i] combatting discrimination against women in law and in practice,[ii] and guaranteeing respect for international humanitarian law and human rights.[iii]  Iraq has failed to take meaningful action on these recommendations.
  3. This submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.
  4. A fundamental principle of international human rights law is the protection against discrimination. The Universal Declaration on Human Rights (UDHR) and the Charter of the United Nations – as well as CEDAW,[iv] CAT, and the ICCPR – have all codified the principles of non-discrimination and equality.[v] As the UDHR states, “All are equal before the law and are entitled without any discrimination to equal protection of the law.”[vi]These principles of equality and non-discrimination are part of the foundations of the rule of law of human rights. Under these principles, states are required to ensure that women, on the basis of equality of men and women, fully enjoy the benefits of the rule of law.
  5. Iraq’s criminal laws as rendered fail to provide protections for women and girls in violation of this requirement. Specific examples where legal reform is needed include amending provisions regarding rape, forced marriage, torture, as well as domesticating the international crimes of genocide, crimes against humanity, and war crimes in line with international standards. The definitions of these crimes leave out various forms of violence against women that are protected under CAT, ICCPR, CEDAW, and the Geneva Conventions. Until these criminal laws are reformed, Iraq will continue to be in violation of its human rights obligations.
  6. Not only are women and girls entitled to non-discriminatory application of the rights contained within these treaties, but so too are they entitled to non-discriminatory reparations in the event that those rights are infringed.[vii] If Iraq’s criminal laws are left unchanged, Daesh’s female victims will be unable to achieve meaningful justice or seek proper redress for the unique harms they faced on the basis of their gender and sex.
  7. Under international law, survivors of sexual and gender-based violence are entitled to reparations including guarantees of non-repetition.[viii] One measure of guaranteeing non-repetition is “[r]eviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.”[ix] As the CEDAW Committee has recommended, State parties should “mandate institutional reforms, repeal discriminatory legislation and enact legislation providing for adequate sanctions in accordance with international human rights standards.”[x] Such legal reform is required to ensure “women and girls are able to move forward and reconstruct their lives without facing discrimination.”[xi]
  8. Complete gender justice will take a fully transformative agenda with actors at the local, regional, and international level finally recognizing, redressing, and remedying the gender-based discrimination that underlies the treatment of women and girls. Such effort includes reforming Iraq’s criminal laws to bring them in line with international standards, in order to safeguard better protections for victims from violence and ensure access to justice.

II. Iraq’s Discriminatory Criminal System

A. Domestic Crimes

        10.  Iraq’s definition of rape, forced marriage, and torture are a few examples of how the country’s criminal laws collectively fail to fully define, deter, prevent, punish, or redress sexual and gender-based violence crimes. Clearly defining these crimes in line with international standards is an important step in implementing the Iraqi Government’s obligations to eliminate discrimination against women.

Rape

  1. Iraq’s rape laws are not in line with international standards and do not encompass the number of ways that rape was perpetrated and used by Daesh against the Yazidis. Specifically, Iraq’s Penal Code Article 393 defines rape as “sexual intercourse with a female without her consent or…buggery with any person without their consent.” Article 393 is not gender-neutral and is limited only to acts of “sexual intercourse” (vaginal intercourse)—leaving out Daesh’s serious violent and invasive sexual crimes that were beyond “sexual intercourse or buggery” (e.g. by including penetration by objects and other body parts). “Consent” is central to Iraq’s definition of rape (rape only occurs where there is lack of consent).[xii] However, the term “consent” is not defined, clarified, or otherwise described anywhere in the Penal Code’s rape provision. Prosecutions focusing on “consent” inherently focus on semantics about the victims’ words or actions and do not properly consider victims whose enslavement, age, or subjection to threats or coercive environments prevented genuine consent.[xiii]
  2. A broader, more comprehensive criminal definition of rape is necessary, especially during conflict or mass atrocities, to account for rape’s multifarious methods, purposes, contexts, individual motives, and intra-group dynamics. For example, beyond “sexual intercourse,” Daesh used rape as a tool for recruitment and to erode community cohesion.[xiv] Criminal accountability should not be limited to an antiquated focus on sexual intercourse and consent; rather, it should reflect the diverse and varied ways and reasons Daesh committed rape.

Reporting Rape

  1. Article 3 of Iraq’s Criminal Procedure Code establishes that prosecution for rape only begins if the victim affirmatively acts.[xv] Complaints relating to rape will not be accepted more than three months after the victim “became aware of the offence or from the disappearance of any compelling excuse” which prevented the complainant’s submission of the complaint.[xvi]  If the victim withdraws their complaint, they “lose their right to criminal justice.”[xvii] Penal Code Article 385 criminalizes “any person who has carnal knowledge of a girl to whom he is not married with her consent when she has not yet reached the age of 18.”[xviii] A prosecution of this crime, however, “may only be brought on the basis of a complaint by the victim or her ancestor, descendant, brother or sister.”
  2. International standards do not require victim initiation or participation for prosecution of rape or sexual violence.[xix] Such provisions can cause survivors of sexual violence to relive or confront their trauma in forced and highly destructive ways. They presuppose what women’s responses to such violence should be and negatively affect women’s rights to equality before the law, fair trial, and effective remedy.[xx] Further, victims of rape and sexual violence may be unwilling to initiate such proceedings.[xxi] In conservative societies like Iraq, women face societal barriers in reporting sexual violence crimes, including fear of retribution from, or against, family members.[xxii] Women and girls in Daesh-controlled territory were brought to houses, sometimes by the hundreds, and group-by-group taken for rape.[xxiii] The sheer volume of rape occurring at the hands of Daesh, coupled with the fact that many victims do not know and have no way of identifying their rapists, means that victim-initiated complaints are next to impossible in practice. For these reasons, such discriminatory requirements should not be any part of accountability for rape generally and must not be a feature when holding Daesh accountable.

Forced Marriage

  1. Article 9 of Iraq’s Personal Status Law criminalizes forced marriage: “no relative or non-relative has the right to force marriage on any person, whether male or female, without their consent.”[xxiv] Where there has been a forced marriage, either a specialized “personal status” court or the victim must refer the case to criminal justice authorities.[xxv] Article 9 further establishes that “[t]he contract of a forced marriage is considered void if the marriage is not yet consummated.” However, the law does not automatically void forced marriages that have been consummated.[xxvi] Additionally, Iraq has a reservation to CEDAW Article 16, which calls on States to take measures to eliminate discrimination against women with respect to marriage.
  2. Forced marriage is not specifically described within international criminal law, but has been prosecuted as the crime against humanity of an “inhumane act,” which requires “great suffering, or serious injury to body or to mental or physical health.”[xxvii] International human rights law, including the ICCPR to which Iraq is a party, also protects the right to marry freely, and that women’s “right to choose when, if, and whom she will marry must be protected and enforced by law.”[xxviii] Iraq’s Personal Status Law Article 9 does not define the types of actions that constitute marriage by “force” (e.g. by threats of violence) or the types of “consent” that are considered invalid (e.g. under duress). As such, the law is vague and does not fully account for the ways by which women and girls were systemically and en masse forced or otherwise coerced into marriages with Daesh fighters.[xxix] This gap is a particular risk as Iraq continues to prosecute people for “membership or support” of a terrorist organization, potentially including women and girls whose only “membership or support” of Daesh was having been forcibly married to a Daesh fighter.[xxx] Although forced marriage is prohibited, the Iraqi Government makes few efforts to enforce the law, and traditional forced marriages of girls continue, especially in rural and Daesh-controlled areas.[xxxi]

Torture

  1. Article 37 of the 2005 Constitution prohibits “all forms of psychological and physical torture and inhumane treatment,” barring confessions obtained under torture and ensuring victims’ right to seek compensation for “material and moral damages incurred.”[xxxii] Both the Iraq Criminal Procedure Code and the Penal Code prohibit the use of torture “and other illegal methods” to obtain confessions or admissions, when used by public officials.[xxxiii] Iraq’s Penal Code outlaws cruel treatment, defining it as treatment by a public official that causes a loss of dignity or physical pain.[xxxiv]
  2. The CAT, to which Iraq is a party, defines torture in such a way to cover specific and sufficiently broad conduct to capture the various means and ways torture is actually carried out. It acknowledges that torture can be physical or mental, that it can be performed because of discrimination, and that it can be done because of the mere acquiescence of a public official. This breadth allows for the gendered harms perpetrated by Daesh, including rape, sexual assault, trafficking, slavery, forced and child marriage, to be fully captured[xxxv]—and is therefore essential to ensuring full gender justice for Daesh crimes. Under CAT, Iraq is obliged to “ensure that the principle of the absolute prohibition of torture is incorporated into its legislation and ensure its strict application.”[xxxvi] None of Iraq’s laws on torture define the types of conduct that constitute torture—they merely contain declarations that “torture” is prohibited. Accordingly, there is no clarity on what constitutes “torture” under Iraqi law. Without more specificity, conduct amounting to torture carried out against women and girls is often ignored.  

Recommendations

  • The Government should adopt a legal definition of rape in line with international standards.
  • The Government should remove the requirements of victim initiation or participation for prosecution of rape or sexual violence.
  • The Government should criminalize and punish forced marriage.
  • The Government should adopt a definition of torture in line with CAT.
  • The Government should remove its reservations to CEDAW, specifically to Article 2(f) and (g) and Article 16, and take steps to fully implement CEDAW.
  1. International Crimes

        19. The broad and systematic nature of Daesh’s violence elevated their crimes beyond the traditional domestic framework and into international concern. Daesh committed all of the core international atrocity crimes of genocide, crimes against humanity, and war crimes; yet none of these have been formally outlawed by Iraq. Failing to investigate and prosecute international atrocity crimes as distinct crimes with specific gendered harms misses an opportunity to build a complete historical record, honor the experiences of victims, and ensure full accountability for Daesh’s criminality.

Genocide

  1. Iraq has no domestic law prohibiting or punishing genocide,[xxxvii] nor does it have criminal prohibitions on persecution or any other law that encapsulates attempts or acts aimed at destroying the Yazidis or eradicating those based on group identity. Iraq is a party to the Convention on the Prevention and Punishment of the Crime of Genocide,[xxxviii] but has not complied with its treaty obligations to make genocide a crime in the Iraqi Penal Code. Genocide is also a crime under treaty and customary international law, which imposes obligations on governments and international entities to prevent, suppress, and punish its commission.[xxxix] This means the government of Iraq, other states, and international entities are required to take all measures reasonably within their means to punish the sexual and gender-based crimes committed in furtherance of Daesh’s genocide, and the failure to do so violates their international obligations.[xl]
  2. The absence of a law criminalizing genocide means that the specific nature of Daesh’s intent to destroy the Yazidis will not, and indeed cannot, be punished. There will be no accountability for the fact that Daesh intentionally targeted Yazidis for destruction with acts including killing, rape, forcible transfer, and enslavement.[xli]

Crimes against Humanity

  1. Iraq does not have domestic legislation penalizing crimes against humanity.[xlii] Thus, Iraq’s Penal Code does not properly account for the organized, widespread, or systemic attacks that characterize Daesh’s crimes. The specific prohibition of “crimes against humanity” is intended to name and criminalize conduct that is viewed as an attack on the very quality of being human.[xliii] Indeed, “the crime is so heinous that it is an attack not just upon the immediate victims, but also against all humanity, and hence the entire community of humankind has an interest in its punishment.”[xliv] Central to this crime is the widespread and systematic nature of the perpetrator’s conduct. Daesh crimes fall squarely within this definition. The efficiency and uniform manner in which Daesh committed its sexual and gender-based violence are central to its criminality, and therefore must be accounted for in Iraq’s efforts at justice.
  2. Without a dedicated law, Iraq is incapable of punishing, stigmatizing, or memorializing the egregious systemization and scale of crimes Daesh committed, not only against individuals but the community as a whole. By not codifying crimes against humanity domestically, justice for women and ethnic minorities is precluded and amounts to discrimination.

War Crimes

  1. Iraq does not have domestic legislation penalizing war crimes. Iraq is a party to the four Geneva Conventions of 1949 and Additional Protocol I of 1977,[xlv] and accordingly has international obligations to criminalize and hold accountable war criminals. In fact, under the Geneva Conventions of 1949, Iraq has legal obligations to pass legislation prohibiting and punishing war crimes.[xlvi] These obligations remain unfulfilled as long as the Iraqi Penal Code does not specifically incorporate and penalize war crimes.
  2. Iraq must not fail to prosecute Daesh’s sexual and gender-based crimes for what they were: war crimes. Without special protections, the fact that Daesh engaged in and carried out their atrocities under the unique legal circumstances brought on by war will not be specially punished. Indeed, dedicated laws are required to protect civilians from death, rape, torture, or any other intentional harms that accompany armed conflict.

Recommendations

  • The Government should adopt a law criminalizing genocide in line with the Convention on the Prevention and Punishment of the Crime of Genocide.
  • The Government should adopt domestic legislation penalizing crimes against humanity.
  • The Government should pass legislation prohibiting and punishing war crimes in line with its legal obligations under the Geneva Conventions of 1949.

Download the Submission


[i] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 15, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.36 Take any proper measure in order to keep national legislation fully in line with international standards and obligations (Italy)”).

[ii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 18, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.85 Effectively combat discrimination against women in law and in practice (Togo)”).

[iii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 19, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.100 Guarantee respect for international humanitarian law and human rights … (Spain)”).

[iv] Iraq has a reservation to CEDAW’s Article 2(f) and (g), which read, “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: … (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.” (Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13). The CEDAW Committee has held Article 2 to be “central to the objects and purpose of the Convention.” (Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions), p. 49, A/53/38/Rev.1 (1998)). Iraq’s reservation to Article 2 is therefore at odds with CEDAW’s object and purpose, rendering it invalid. (See Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 13 (“The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them.”)).

[v] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III); U.N. Charter Preamble, art. 1, para. 2; Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85; International Covenant on Civil and Political Rights art. 26, Dec. 19, 1966, 999 U.N.T.S. 171.

[vi] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III).

[vii] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 4 (June 2014).

[viii] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶¶ 18, 23, Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[ix] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶ 23(h), Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[x] CEDAW Comm., General Recommendation No. 33, ¶ 19(e).

[xi] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 20 (June 2014).

[xii] Penal Code art. 393(1). “Consent” is not otherwise defined or qualified in the Iraq Penal Code or Criminal Procedure Code. The Penal Code’s description of sexual assault as “without his or her consent and with the use of force, menaces, deception or other means” may suggest that consent and force/coercion are distinct concepts in Iraq law. Penal Code art. 396(1); see also Penal Code art. 393 (describing perpetrators’ authority over the victim, the victim’s age, and multiple perpetrators as aggravating circumstances rather than circumstances affecting potential consent.)

[xiii] See, e.g., Prosecutor v. Bemba, Case No. ICC-01/05-01/08-3343, Trial Judgment, ¶¶ 105-06 (Mar. 21, 2016) (“the victim’s lack of consent is not a legal element of the crime of rape under the Statute. . . . on the basis that such a requirement would, in most cases, undermine efforts to bring perpetrators to justice.”); Prosecutor v. Kunarac et al., Appeals Judgment, Case No. IT-96-23 & IT-96-23/1-A, ¶ 128 (June 12, 2002) (rejecting the assertion that continuous resistance was necessary to provide adequate notice to perpetrators); Int’l Criminal Court, Rules of Procedure and Evidence r. 70(c); U.N. Women, Handbook for Legislation on Violence Against Women 25 (2012) (noting that “definitions of sexual assault based on a lack of consent may, in practice, result in the secondary victimization of the complainant/survivor by forcing the prosecution to prove beyond reasonable doubt that the complainant/survivor did not consent” and emphasizing that definitions of sexual violence based on coercion should include expansive circumstances). Another example left out by the focus on consent is rape committed under coercion or threats directed not against the victim, but a third person. Int’l Criminal Court, Elements of Crimes art. 7(1)(g)-1, element 2.

[xiv] See U.N. Secretary-General, Rep. on Conflict-Related Sexual Violence, ¶¶ 28-29, U.N. Doc. S/2015/203.

[xv] Criminal Procedure Code art. 3(A)(iii) (in cases of rape where the victim is a spouse or descendent of the perpetrator); Penal Code art. 385 (complaint must be brought by victim or ancestor). The Criminal Procedure Code also specifies that the right to submit a complaint does not transfer to heirs. Criminal Procedure Code art. 9(D). See also, U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL/ or in Areas Controlled by ISIL in Iraq ¶ 23 (Aug. 22, 2017), http://www.uniraq.com/index.php?option=com_k2&view=item&task=download&id=2237_d4579691236af63a6d57621c51d8aa35&Itemid=650&lang=en [UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL].

[xvi] Criminal Procedure Code art. 6.

[xvii] Criminal Procedure Code art. 9(F). Article 8 also specifies that complaints will be dismissed if not “followed up on” by complainants within three months in cases where submitting a complaint is required. Criminal Procedure Code art. 8.

[xviii] Penal Code art. 385.                                                                                                      

[xix] U.N. Women, Handbook for Legislation on Violence Against Women 34-35 (2012).

[xx] CEDAW Comm., General Recommendation No. 35, ¶ 26(c).

[xxi] UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 23.

[xxii] Penal Code arts. 128, 409, 417(4) (committing specified crimes out of shame or with “honourable motives” is a mitigating excuse); U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on Human Rights in Iraq: July to December 2016, at 28-29; Huda Ahmed, Freedom House, Iraq, in Women’s Rights in the Middle East and North Africa 1, 7-8 (2010); U.S. Dep’t of State, Iraq 2016 Human Rights Report 49-52 (2017) (victims of sexual or domestic violence “did not usually report it to authorities or pursue legal remedies” because of social stigma and risk of familial retribution or because they feared family protection units “would immediately inform their families of their testimonies”); Miriam Puttick, Ceasefire Ctr. for Civilian Rights & Minority Rights Group Int’l, The Lost Women of Iraq: Family-Based Violence During Conflict 18, 28-29 (2015), http://minorityrights.org/wp-content/uploads/2015/08/Lost-Women-English.pdf; U.K. Home Office, Country Policy and Information Note, Iraq: Kurdish ‘Honour’ Crimes (2017), https://www.justice.gov/eoir/page/file/995246/download (honor crimes continue in Kurdistan despite its repeal of honor as a mitigating circumstance).

[xxiii] Seivan M. Salim, The Yazidi Women Who Escaped ISIS, The Daily Beast (2015), http://www.thedailybeast.com/longforms/2015/isis/portraits-of-the-yazidi-women-who-escaped-isis.html; Amnesty Int’l, Escape from Hell: Torture and Sexual Slavery in Islamic State Captivity in Iraq 5 (2014), https://www.amnesty.org.uk/files/escape_from_hell_-_torture_and_sexual_slavery_in_islamic_state_captivity_in_iraq_-_english_2.pdf;

[xxiv] Personal Status Law No. 188 of 1959 art. 9(1) (Iraq).

[xxv] Personal Status Law No. 188 of 1959 art. 9(3).

[xxvi] Personal Status Law No. 188 of 1959 art. 9(1). The Kurdistan Personal Status Law was amended to consider forced marriages void and suspended even if consummated, and forced marriage is included as a crime in Kurdistan’s 2011 anti-domestic violence law. Act No. 15 of 2008, Act to Amend the Amended Law No. 188 of 1959, Personal Status Law, in Iraq Kurdistan Region art. 6(1); Act No. 8 of 2011, Act Combating Domestic Violence in Kurdistan Region-Iraq art. 2(First)(1).

[xxvii] Rome Statute art. 7(1)(k); ICC Elements of Crimes art. 7(1)(k), elements 1-2. Forced marriage has been recognized as an “other inhumane act” in the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. See Co-Prosecutors v. Ieng Sary et al., Case No. 002/19-09-2007-ECCC-OCIJ, Closing Order, ¶¶ 1442-47 (Sept. 15, 2010); Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Confirmation of Charges, ¶¶ 87-95 (Mar. 23, 2016); Prosecutor v. Brima, Case No. SCSL-2004-16-A, Appeals Judgment, ¶ 186, 195-96 (Feb. 22, 2008).

[xxviii] Universal Declaration of Human Rights art. 16(2), Dec. 10, 1948, U.N. Doc. A/RES/217(III); International Covenant on Civil and Political Rights art. 23(3), Dec. 19, 1966, 999 U.N.T.S. 171; Convention on the Elimination of All Forms of Discrimination Against Women art. 16(1)(a)-(b) (noting Iraq’s reservation to Article 2(f)(g) and Article 16 of the Convention, Status on the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en#EndDec); Convention on the Elimination of All Forms of Discrimination Against Women Comm., General Recommendation No. 21 on Equality in Marriage and Family Relations, ¶¶ 15-16, U.N. Doc. A/49/38 (1994).

[xxix] Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 59, 73, U.N. Doc. A/HRC/30/48 (Aug. 13, 2015); Salim, The Yazidi Women Who Escaped ISIS; Amnesty Int’l, Escape from Hell, at 5-7, 11-12; Iraq: Sunni Women Tell of ISIS Detention, Torture, Describe Forced Marriage, Rape, Human Rights Watch; U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on the Protection of Civilians in the Armed Conflict in Iraq: 11 December 2014–30 April 2015, at 22 http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport-11Dec2014-30April2015.pdf (reporting the abduction and killing of Sunni and Turkmen Shi’a women who refused to marry ISIS fighters).

[xxx] See, e.g., Iraq Kurdish Authorities Must End Disgraceful Detention of Yezidi Woman Who Survived IS Captivity, Amnesty Int’l (Sept. 9, 2016), https://www.amnesty.org/en/latest/news/2016/09/iraq-kurdish-authorities-must-end-disgraceful-detention-of-yezidi-woman-who-survived-is-captivity/; Letta Taylor, The Women Who Escaped ISIS: From Abused to Accused, Human Rights Watch (Mar. 11, 2017), https://www.hrw.org/news/2017/03/11/women-who-escaped-isis; UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 41 (noting the risk that women married to ISIL members with or without consent may be subject to discrimination and collective punishment); Human Rights Watch, “No One is Safe:” Abuse of Women in Iraq’s Criminal Justice System 19-37 (2014) (describing the arrest and detention of women under the 2005 Anti-Terrorism Law based on familial association); Human Rights Watch, Flawed Justice: Accountability for ISIS Crimes in Iraq 27-33 (2017) (on current prosecutions).

[xxxi] U.S. Dep’t of State, Iraq 2016 Human Rights Report, at 56. “According to UNICEF, approximately 975,000 girls in Iraq were married before the age of 15, twice as many as in 1990.” Id. See also Huda Ahmed, Freedom House, Iraq, at 12.

[xxxii] Constitution art. 37(first)(C).

[xxxiii] Criminal Procedure Code arts. 127, 218; Penal Code art. 333. See also Constitution art. 9(D) (intelligence service shall operate according to law and “recognized principles of human rights”).

[xxxiv] Penal Code art. 332.

[xxxv] See Human Rights Council, Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶¶ 51-67, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016) (by Juan E. Méndez).  

[xxxvi] Committee against Torture, Concluding Observations on initial report of Iraq, ¶ 10, U.N. Doc. CAT/C/IRQ/CO/1 (Sept. 7, 2015).

[xxxvii] There is no criminal law outlawing or otherwise describing genocide in Iraq’s Penal Code. The “Iraqi High Tribunal”—created to punish crimes committed by Saddam Hussein’s government—contains an article criminalizing genocide, crimes against humanity and war crimes, but the law that created this tribunal does not apply generally to Iraq’s Penal Code, or to Daesh’s crimes. Law No. 10 of 2005, Law of the Iraqi Higher Criminal Court art. 1(Second) (Iraq).

[xxxviii] Notification of Accession by Iraq to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, Doc. C.N.16.1959.Treaties-1 (Feb. 24, 1959), https://treaties.un.org/doc/Publication/CN/1959/CN.16.1959-Eng.pdf.

[xxxix] Genocide Convention arts. 1-8; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Preliminary Objections Judgment, 1996 I.C.J. 595, ¶ 31 (July 11) (“the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes”).

[xl] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, ¶¶ 430-31 (Feb. 26); Global Justice Ctr., Letter in Support of Filing of OTP-CR-397/15 to the Office of the Prosecutor of the International Criminal Court (Dec. 17, 2015).

[xli] Amnesty Int’l, Escape from Hell; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 63, 188, U.N. Doc. A/HRC/28/69 (Feb. 5, 2015); Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 113-17, U.N. Doc. A/HRC/30/48; Human Rights Council, Rep. of the Office of the United Nations Commissioner for Human Rights on the Human Rights Situation in Iraq in Light of the Abuses Committed by the So-called Islamic State in Iraq and the Levant and Associated Groups, ¶¶ 76, 78; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic: Rule of Terror: Living under ISIS in Syria, ¶ 53-55, U.N. Doc. A/HRC/27/CRP.3 (Nov. 19, 2014); Iraq: ISIS Escapees Describe Systematic Rape, Human Rights Watch, (Apr. 14, 2015), https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

[xlii] Several provisions of the Penal Code contain “aggravating factors” that incorporate scale and patterns of abuses, such as committing crimes that involve multiple perpetrators, brutal methods, or are committed multiple times, but none capture the international nature of crimes against humanity. See, e.g., Penal Code arts. 135, 393(2)(d), 406(1), 421-24. The Penal Code provides that material circumstances that would increase the penalty of the offence affect the liability of all parties, whether or not they are aware of those circumstances. To incur criminal liability, the Rome Statute requires that perpetrators must know that their “conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” and in the case of sexual violence be “aware of the factual circumstances that established the gravity of the conduct.” Compare Penal Code art. 51 (“If there exists material circumstances in the offence that would by their nature increase or decrease the penalty, then they will affect all parties to the offence, principal or accessory, whether they are aware of those circumstances or not.”), with ICC Elements of Crimes, art. 7(1)(g)-6, elements 3, 5, and art. 7(1)(g)-1, element 4.

[xliii] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27, U.N. Doc. A/CN.4/680 (Feb. 17, 2015) (by Sean D. Murphy).

[xliv] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27.

[xlv] Treaties, States Parties and Commentaries: Iraq, Int’l Comm. Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=IQ.

[xlvi] Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field art. 49-51, Aug. 12, 1949, 75 U.N.T.S. 31; see also Geneva Convention (II) for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 50-52, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War arts. 129-131, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War arts. 146-148, Aug. 12, 1949, 75 U.N.T.S. 287.

CSW Side Event: Working Towards Greater Implementation of 1325 – Models of Best Practice States Parties and Civil Society

From March 11, 2019 10:30 until 12:00

At New York City Baha'i Center, 866 UN Plaza

Speakers:

  • Tia Bown, NAWO YWA
  • Grant Shubin, Deputy Legal Director Global Justice Center
  • WILPF activists from Cameroon and Niger
  • Rugya Muttawa, Founder Hope Organisation Libya

Overview:

UNSRC 1325 was passed and ratified in 2000, more than 18 years later and with numerous related resolutions since, there is still a way to go to ensure the full implementation of 1325.  Human Rights violations in conflict zones are well documented and much of the vision of 1325 remains unrealized.

Young women are often subject to double marginalization – as women, and as young people. In many societies and families, they are the last to eat, to speak, to receive an education. They do not have a voice, and only speak when spoken to. With little or no education or training, young women and girls are relegated to caretaking, cooking, childbearing, collecting firewood and fetching water – the unpaid labour, which is often not regarded as important by the society, and does not provide the women with financial means of their own. Conflict aggravates this situation. We will therefore have a voice of a young woman from the NAWO Young Women’s Alliance WPS network.

Civil society was active in the creation of 1325 and has remained committed and active since in its implementation despite lack of resources.  There are numerous examples from civil society from which we can learn to increase implementation elsewhere in addition to understanding better obstacles and challenges.  Representatives from civil society working at policy level and on the ground will share perspectives.

States Parties, have to varying degrees, supported and implemented 1325. Hearing from them their view of success and their learning in implementation, will take forward the discourse on this important issue.

The event will provide time for discussion to learn from the expertise in the room, especially in preparation for the 20th anniversary next year.

Roundtable: Legal Limits to the Use of the Veto

From March 8, 2019 9:00 until 17:00

At Foley Hoag, LLC

Question at Issue:Are there legal limits to the use of the veto by the Permanent Members of the U.N. Security Council blocking action in the face of genocide, crimes against humanity or war crimes? Or is the veto in such circumstances a carte blanchethat can be utilized at the complete discretion of the permanent members?

Proposition:There arelegal limits to the use of the veto power in the face of genocide, crimes against humanity or war crimes. Three arguments support this conclusion:

  1. The veto power derives from the UN Charter, which is subsidiary to jus cogensnorms. Thus, a veto that violates jus cogensnorms, or permits the continued violation of jus cogensnorms, would be illegal or ultra vires. The Charter (and veto power) must be read in a way that is consistent with jus cogens.
  2. The veto power derives from the UN Charter, which states in Article 24(2) that the Security Council “[in] discharging [its] duties” “shall act in accordance with the Purposes and Principles of the United Nations.” A veto in the face of a draft resolution aimed at curtailing or alleviating the commission of genocide, crimes against humanity or war crimes does not accord with the Charter’s purposes and principles.
  3. A permanent member of the Security Council that utilizes the veto power also has other treaty obligations, such as those under the Genocide Convention, which contains an obligation to “prevent” genocide. A Permanent Member’s use of the veto that would enable genocide, or allow its continued commission, would violate that state’s legal obligation to “prevent” genocide. A similar argument can be made as to allowing the perpetration of at least certain war crimes, such as “grave breaches” and violations of Common Article 3 of the 1949 Geneva Conventions. (Given that under Article 103 of the Charter, the Charter trumps inconsistent treaty obligations, this argument may only apply where treaty obligations also embody jus cogensnorms or accord with the Charter’s purposes and principles.) Alternatively, these treaties and the veto power could (and should) be read consistently, so that there is no conflict, making article 103 inapplicable.

Goal of Project:To ensure that the UN Security Council is able to act in the face of genocide, crimes against humanity and/or war crimes; therefore, to have the members of the General Assembly request an Advisory Opinion from the International Court of Justice (ICJ): Are there legal limits to the use of the veto power in the face of genocide, crimes against humanity or war crimes?

Initial Goal of Initiative:To form a group of NGOs and States who support this initiative and would be willing to work to convince the General Assembly to make this request of the ICJ.

Alternative Concept:To put some of these legal concepts directly into a GA resolution that notes the legal obligations related to genocide, crimes against humanity and war crimes, and calls for veto restraint (and not ask for an Advisory Opinion).

    —Professor Jennifer Trahan, NYU Center for Global Affairs, This email address is being protected from spambots. You need JavaScript enabled to view it.

Supporting Individuals:

  • Hans Corell, former Under-Secretary General for Legal Affairs
  • Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia & the International Criminal Tribunal for Rwanda,
  • Navanethem (“Navi”) Pillay, former High Commissioner for Human Rights
  • Andras Vamos-Goldman, co-founder & former Executive Director, Justice Rapid Response
  • David M. Crane, former Chief Prosecutor, Special Court for Sierra Leone
  • Judge Christine Van den Wyngaert, formerly International Court of Justice (ad hoc), International Criminal Tribunal for the former Yugoslavia, and International Criminal Court; presently Kosovo Specialist Chambers (signing in a personal capacity)

Supporting NGOs:

  • The Global Centre for the Responsibility to Protect
  • The International Center for Transitional Justice
  • The World Federalist Movement - Institute for Global Policy
  • Parliamentarians for Global Action
  • Open Society Justice Initiative
  • Global Justice Center
  • Syrian Justice and Accountability Center
  • Moroccan National Coalition for the International Criminal Court
  • Lawyers for Justice in Libya
  • Women’s Initiatives for Gender Justice

 

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.

Accountability for conflict-related sexual violence as a central pillar for prevention - Arria Formula meeting of the UN Security Council

From Feb. 8, 2019 10:00 until 13:00

At United Nations Headquarters, Trusteeship Council Chamber

The Permanent Missions of Germany, Belgium, Dominican Republic, Equatorial Guinea, France, Kuwait, Peru, Poland, South Africa and the United Kingdom will co-host an Arria Formula meeting of the UN Security Council on the preventive impact of criminal accountability for conflict-related sexual and gender-based violence on Friday, 8 February 2019, at 10:00 am in the Trusteeship Council Chamber. The meeting will be chaired by Ms. Katarina Barley, Federal Minister of Justice and Consumer Protection of Germany.

"Sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security." (Extract from Security Council Resolution 1820).

Members of the UN Security Council and UN Member States explore how each can more effectively integrate criminal accountability for sexual violence in conflict into the prevention agenda, including into conflict resolution, transitional justice and peacebuilding.

Briefers:

  • Tonderai Chikuhwa, Chief of Staff and Senior Policy Advisor, Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
  • Toussaint Muntazini, Prosecutor of the Special Crimes Court in the Central African Republic
  • Akila Radhakrishnan, President of the Global Justice Center

Chair:

  • Katarina Barley, Federal Minister of Justice and Consumer Protection of Germany

Download the Concept Note

 

The UN General Assembly Ignores Gender in Debates on the Responsibility to Protect

By Hannah Sarokin and Brandon Golfman

The 90s were a time of multiculturalism, grunge music, Friends, and the world-wide web.  It was also a decade marked by devastating humanitarian crises, including widespread sexual and gender-based violence.  From Rwanda to the Balkans, mass conflict and genocide rattled global security and peace processes and shed light on the resounding failure of the international community to act.  The principle of the Responsibility to Protect (R2P) was born from such atrocity.  

First addressed by the UN during the World Summit in 2005, R2P is the collective recognition that protecting vulnerable civilians from genocide, war crimes, ethnic cleansing, and crimes against humanity is both a domestic and international obligation.  The three pillars of R2P oblige states to protect their populations from such atrocities, require the international community to assist in that protection, and if a state has failed, other states must take appropriate actions to intervene.  Despite a unanimous commitment to R2P at the World Summit, there remains a severe gap in domestic implementation, especially in regards to gender.

Submission to the UN Human Rights Council for US UPR

GJC sends a mid-term report submission for the Universal Periodic Review of the United States of America. The report examines the restrictions that the US puts on foriegn aid regarding the provision of abortion services and the ways those restrictions violate international law.

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Human Rights Org Send Open Letter to Iraqi Prime Minister on establishing an Investigative Team for Crimes Committed by Daesh, including Yazidi Genocide

FOR IMMEDIATE RELEASE - October, 30 2017

[NEW YORK and BAGHDAD] –  Today, the Global Justice Center along with the Eyzidi Organization for Documentation, the Iraqi Al-Amal Association, the Iraqi Women Network, Madre and Yazda sent a joint open letterto the Iraqi Prime Minister Dr. Haider al-Abadi regarding the Terms of Reference currently being drafted for UN Security Council Resolution 2379 (2017).

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

Read Full Letter in English

Read Full Letter in Arabic

UN Security Council Adopts Resolution - One Step Towards Justice for the Yazidi Genocide

FOR IMMEDIATE RELEASE - September 21, 2017

[NEW YORK, NY] – Today, the UN Security Council unanimously adopted UNSC Resolution 2379 (2017) on Daesh accountability, paving the way for an investigative team to collect evidence of war crimes, crimes against humanity and genocide in Iraq. Since 2014, Daesh has been perpetrating a genocidal campaign against the Yazidi and potentially other ethnic minorities in Northern Iraq but yet to date no perpetrator has been held accountable for genocide.

Trumps's First UN General Assembly Week: What to Expect

By Julia d'Amours

The 72nd UN General Assembly will start on Tuesday, September 19th. This year’s theme is “Focusing on People: Striving for Peace and a Decent Life for All on a Sustainable Planet,” as chosen by this year’s GA President Miroslav Lajčak of Slovakia. Lajčak has designated six themes for this year’s GA: improving the lives of ordinary people; prevention and mediation to sustain peace; migration; achieving SDG and climate standards; human rights and equal opportunities for both genders; and improved quality of events hosted by the UN General Assembly Presidency.

The UNGA always garners international attention as the “hottest ticket in diplomacy,” but this year’s is leaving delegations in heightened anticipation as President Trump makes his UN debut. According to State Department officials, the US delegation will be smaller than earlier years, scaling down attendance from 1,000 to about 300 US personnel.  US diplomats will also reportedly need permission to attend the myriad side events and debates hosted throughout the week. This diminished presence is partly due to Secretary of State Rex Tillerson’s aims to scale down departmental spending. It’s also sending the message, however, that the US is disengaging from its international obligations and the UN as a whole.

President Trump will be present for three days of the UNGA, more time than most US Presidents have traditionally spent, beginning his participation with an address to the General Assembly on Tuesday, September 19th. From there, he will proceed to several key events, such as a luncheonhosted by UN Secretary General Antonio Guterres. The Trump Administration has indicated counterterrorism, conflict in Syria, North Korea, and UN reform as its priorities during this GA session.

Another change in this year’s GA will be the venue of the negotiations. Typically, the US hosts meetings at the UN or in nearby hotels. Trump has opted instead for his New Jersey golf club. It is rumored that his daughter Ivanka Trump and son-in-law Jared Kushner will play significant roles in these discussions.

Recent tensions between the Trump Administration and UN have left foreign diplomats with apprehension. At the White House in April, Trump remarkedthat he has “long felt that the UN is an underperformer but has tremendous potential”. Ambassador Haley toldthe UNSC in April, “You don’t see the United Nations, like, solving conflicts.” The relationship between the White House and the UN has only grown more contentious over the summer. Last month, Zeid Ra’ad al-Hussein, the UN Human Rights Chief, said that Trump’s repeated denouncements of the press and incitement of violence was “poisonous.”

Historically the US has used the UNGA to demonstrate its commitment to global leadership and indispensable role in the UN. This year, however, many expect touting an “America First” agenda. On September 18th, Trump will chair a meetingon streamlining UN services which will give him and Haley the opportunity to present themselves as big UN reformers. It is anticipated Trump will threaten to revoke funding in certain reforms are not made.

With the increasing hostility with North Korea, the ongoing conflict in Syria, global terror attacks and countries all over the world dealing with the ravaging effects of climate change, the world needs national level leadership to meaningfully address international crises.  Unfortunately, the signs are pointing to Trump’s visit to the UN further fraying global tensions.

Photo by Gage Skidmore

U.S. Aversion to International Human Rights Treaties

By Marie Wilken

The United States prides itself on being a champion of human rights. Since its founding, the United States has often identified its belief in inalienable rights as a trait that has differentiates it from other countries. The United States pioneered international human rights law when Eleanor Roosevelt chaired the committee that drafted the Universal Declaration of Human Rights, the precursor to many international human rights treaties. In the U.S. Department of State’s annual Human Rights Reports, it judges other countries’ human rights records. However, it is difficult to take U.S. commitment to human rights seriously when it regularly favors domestic political concerns over the international human rights community and continually demonstrates a unique reluctance to ratify international human rights treaties.

The United States is alone among other industrialized Western countries in its reluctance. It did not begin to ratify major human rights treaties until the late 1980s, taking almost 40 years to become the 98th country to ratify the Convention on the Prevention and Punishment of the Crime of Genocide. It still has not ratified many significant human rights treaties, including the Convention on the Rights of Persons With Disabilities and the International Covenant on Economic, Social, and Cultural Rights—part of the International Bill of Human Rights. The United States also has not ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), one of only seven countries who hasn’t including Iran, Nauru, Palau, Somalia, Sudan and Tonga. The United States and Somalia are the only countries that have not ratified Convention on the Rights of the Child.

When the United States does ratify treaties, it uses a unique process that diminishes the treaties’ intended effects. Before the treaty is voted on, Justice Department lawyers search the documents for human rights protections that are more stringent than, and therefore would add to, U.S. law. When found, the United States limits the scope of the treaty by drafting a reservation, declaration, or understanding (RUD) to combat it and sends the treaty, RUDs attached, to the Senate for ratification.

To further strip the treaty of power, the United States declares that treaties are “not self-executing.” This means that without implementing legislation (domestic law guaranteeing the same protections), the treaty is unenforceable in domestic courts. The government often argues that implementing legislation is unnecessary because all the rights in the treaty (except those excluded in the RUDs) are already protected by U.S. law. This leaves citizens without the ability to invoke the treaty in court.

Moreover, because the United States has not ratified the first Optional Protocol of the International Covenant on Civil and Political Rights, citizens cannot appeal to UN Review committees—groups of experts who hear complaints from citizens who believe their treaty rights have been violated. These U.S. procedures prevent substantive participation in the international system of human rights, leaving citizens to rely on non-comprehensive domestic protections.

There are a few factors motivating U.S. aversion to international human rights treaties. Many scholars point to the historical context of when the treaties were first being developed in the late 1940s and early 1950s. The Cold War fostered fears about the spread of communism and totalitarianism, and these fears became linked to the international human rights project. Conservatives also opposed these treaties because they viewed them as the federal government’s effort to address racial segregation and discrimination in the South.

This doesn’t explain why these attitudes have persisted. Some suggest that it is the nature of the U.S. government. Treaties require the approval of two-thirds of the Senate or “congressional-executive agreements”—but the latter are not used for human rights treaties. But what prevents ratification via Senate supermajority? The answer: an attitude.

Human Rights Watch Executive Director Kenneth Roth describes the American attitude towards international human rights law as “fear and arrogance—fear that international standards might constrain the unfettered latitude of the global superpower, and arrogance in the conviction that the United States, with its long and proud history of domestic rights protections, has nothing to learn on this subject from the rest of the world.” Scholars suggest that this isolationist attitude—partly driven by fears that international treaties would erode federalism—leads to acceptance of international human rights law only when it merely affirms existing domestic law.

Refusing to ratify human rights treaties weakens U.S. international leadership and deprives American citizens of protections they deserve. The United States is willing to sign onto substantive trade agreements but not human rights agreements, and this superficial participation in the international human rights community reveals its priorities. Human rights treaties are more than symbolic affirmations of values. They are legal foundations that can translate into human rights victories for citizens. (For examples of how international treaties like CEDAW have been used in domestic courts in other countries, see GJC’s CEDAW Casebank.) Only after ratifying these treaties, making them self-executing, and using domestic law to uphold them can the United States genuinely be the human rights champion it has so long claimed to be. 

Why a U.S. Exit from the UNHRC is Counterproductive

by Marie Wilken

On Tuesday, U.S. ambassador to the United Nations Nikki Haley appeared before the United Nations Human Rights Council (UNHRC) for the first time. The UNHRC adopts resolutions and orders investigations into governments’ violations of human rights. Though the United States began a new three-year term in January, there are rumors it is assessing the possibility of pulling out of the council. During her appearance and in an op-ed in The Washington Post, Haley asserted that the council gives too much negative attention to Israel and that many of its 47 members are serious human rights violators. A politically-motivated exit from the council, however, is a counterproductive strategy, not a solution to the United States’ objections.

The UNHRC is undeniably flawed. As with most political bodies, politics often sway decisions, and some voices are given more weight than others. Also as with other political bodies, loopholes distort well-intentioned rules of operation. For example, countries are elected to the UNHRC through a regional voting bloc system, but because backroom negotiations often result in a noncompetitive number of candidate countries, many human rights-violating countries are elected to the council. In her op-ed, Haley does suggest worthwhile changes – one of which is addressing this issue by making the voting for membership more competitive and inviting true consideration of countries’ human rights records.

If the United States wishes to see these changes, it should use its seat to continue to advocate for them. Disengaging from the council entirely would be counterproductive to its goals. A January Council on Foreign Relations report found that U.S. involvement in the UNHRC has “improved the body’s performance in several ways.” These even include the Trump administration’s objections to the UNHRC; the report found that U.S. involvement in the council can combat anti-Israel bias and encourage accountability for countries that violate human rights. It also found that the United States could create further positive change through “catalytic leadership” – not by withdrawing. Many fear that a U.S. withdrawal could allow for even more human rights violations. A U.S. departure would not end the discourse on Israel. If anything, it could encourage it.

Furthermore, consideration of withdrawing from the UNHRC follows a trend of the United States retreating from international cooperation such as the Paris climate accord and President Donald Trump’s criticism of the U.N. and NATO. This goes further back than Trump’s administration, though: the United States has a tendency to not sign onto international agreements or resolutions that have global consensus. (For example, only seven of the 194 U.N. countries have not ratified the U.N. Convention to Reduce All Forms of Discrimination Against Women, and the United States is one of them.)

This creates contradictions in U.S. policies regarding human rights and international intervention and cooperation. International cooperation toward ideals as morally unambiguous as women’s rights or human rights is criticized as too much of an international intervention and a threat to sovereignty for the United States. However, the United States has no problem intervening in other countries using more extreme means such as military intervention. And what has the United States often used to justify this intervention? Human rights. This hypocrisy is heightened by the Trump administration’s disregard for human rights in other arenas, such as its immigration policies, friendliness with Russia, and the ban on Muslims.

If the United States’ goal truly is to strengthen the UNHRC, its strategy should not be to delegitimize it. A senator unhappy with Congress’s political agenda, mode of operation, or composition would not resign in protest. Why? Because it’s better to be an active force working for change than to quit. Institutions like the UNHRC, though flawed, have merit. Change from within is more powerful than a denunciation and resignation. Exiting the council would place politics above the mission of human rights. To improve the council and signal U.S. devotion to human rights, the United States should heighten, not end, its involvement in the UNHRC.

Photo credit: United States Mission Geneva Flickr (CC-BY-ND-2.0)