Discriminatory Legal Systems

This program utilizes international law and international standards to challenge discriminatory legal policies and practices on sexual and gender-based violence.


Fact Sheet: Structural Barriers To Accountability For Human Rights Abuses In Burma

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

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

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

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

Download the Full Fact Sheet

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

Dear Prosecutor Bensouda,

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

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

Prosecution of captured ISIS officials must adhere to international standards

FOR IMMEDIATE RELEASE – May 10, 2018

[New York] – In light of the capture of five senior ISIS officials on Wednesday, the Global Justice Center underscores the need for scrupulous adherence to international standards as they are brought to justice. The New York Times reports that, “It was unclear where [the officials] were being held or whether they had been given access to a lawyer,” raising serious due process concerns. This approach is familiar in Iraq, where terrorism prosecutions for ISIS suspects occur in mere minutes, focus solely on crimes of terrorism, and have thus far denied justice to the victims of some of ISIS’ worst abuses—women and girls.

USAID FOIA re: Burma

March 3, 2015 – January 10, 2017
Case F-00127-15

GJC petitioned USAID for information on “all USAID contracts, grants and awards related to the funding of the Mae Tao Clinic on the Thai-Burma border to cover operational and support costs since 2008.” This request was part of the August 12th Campaign, dealing specifically with the services available to rape victims in Burma and those who are displaced to the Thai-Burma border.

Abortion-related sections of USAID contracts (emphasis added):

(1) Ineligible Goods and Services. Under no circumstances shall the recipient procure any of the following under this award:

            (i) Military equipment,

            (ii) Surveillance equipment,

(iii) Commodities and services for support of police or other law enforcement activities,

(iv) Abortion equipment and services,

(v) Luxury goods and gambling equipment, or

(vi) Weather modification equipment

Timeline:

  • March 3, 2015– Initial request sent
  • January 10, 2017 – Responsive documents received

USAID FOIA re: Iraq

September 23, 2014 – ongoing
CaseF-2014-20299

Similar to the FOIA request on humanitarian assistance in Syria, GJC requested details on humanitarian assistance awards to Iraq and neighboring countries in FY 2014.

Timeline:

  • September 23, 2014Initial request submitted
  • January 18, 2018 – Letter received stating no responsive records were found
  • February 16, 2018 – GJC submits an appeal to the no records response, asking State to perform a new search

Protecting safe abortion in humanitarian settings: overcoming legal and policy barriers

GJC Vice-President, Akila Radhakrishnan, GJC Legal Fellow, Elena Sarver and GJC Staff Attorney, Grant Shubin published an article in Reproductive Health Matters.

Abstract:

Women and girls are increasingly the direct and targeted victims of armed conflict and studies show that they are disproportionately and differentially affected. However, humanitarian laws, policies, and protocols have yet to be meaningfully interpreted and adapted to respond to their specific needs, including to sexual and reproductive health services and rights. In particular, safe abortion services are routinely omitted from sexual and reproductive health services in humanitarian settings for a variety of reasons, including improper deference to national law, the disproportionate influence of restrictive funding policies, and the failure to treat abortion as medical care. However, properly construed, abortion services fall within the purview of the universal and non-derogable protections granted under international humanitarian and human rights law. This commentary considers the protections of international humanitarian law and explains how abortion services fall within a category of protected medical care. It then outlines contemporary challenges affecting the realisation of these rights. Finally, it proposes a unification of current approaches through the use of international humanitarian law to ensure comprehensive care for those affected by armed conflict.

Read Full Article

 

 

Janet Benshoof Featured in PassBlue

Barbara Crossette of PassBlue interviewed GJC President Janet Benshoof about her life and her work, including founding of the Global Justice Center and advocating for women in Burma and around the world.

Read here

GJC’s statement on the situation in Rakhine State, Myanmar

FOR IMMEDIATE RELEASE - September 9, 2017

[NEW YORK, NY] - In light of ongoing violence in Rakhine State, the Global Justice Center issues the following statement: 

The Global Justice Center calls for the immediate cessation of all acts of violence and the protection of civilian populations in Rakhine State. The Myanmar government must swiftly investigate credible reports of horrific crimes and human rights abuses against civilians in Rakhine State, including acts by its own military and security forces, and provide meaningful punishment, redress and reparations for violations. The government must allow investigators access to Rakhine State and cooperate fully with international investigations, including the UN Fact-finding Mission authorized by the UN Human Rights Council in March 2017. Further, the government must ensure the safety of all civilians, including the Rohingya population, and facilitate humanitarian access and aid to affected communities. 

Trump and International Law

On the campaign trail and over the course of his life Donald Trump has championed viewpoints and proposed policies, which, if taken by the US government, would violate the US’s obligations under international law. Below is a non-exhaustive list of statements Donald Trump has made and what international legal obligations they would violate if enacted.

Global Justice Center’s Statement on the Operation to Liberate Mosul

FOR IMMEDIATE RELEASE—October 17, 2016

[NEW YORK, NY] - As the operation to liberate Mosul begins, all coalition actors should ensure that they uphold their obligations under international law to protect civilians and minimize the harm caused to them. Iraq is a party to the four Geneva Conventions of 1949, Additional Protocol I to the Geneva Conventions and the Convention on the Prevention and Punishment of Genocide. These treaties define how Iraqi forces, including the Peshmerga, must carry out military operations.

Dispatch from Geneva - Behind the Scenes Update from GJC's Senior Burma Researcher

Phyu Phyu Sann, far right, the Global Justice Center’s Senior Burma Researcher, is in Geneva, Switzerland for the United Nation’s (UN) review of Myanmar’s implementation of its obligations under the Convention of the Elimination of All Forms of Discrimination against Women (CEDAW)  to ensure gender equality. In Myanmar, the UN’s Committee on the Elimination of Discrimination against Women (CEDAW Committee) will confront a “constitution and laws that explicitly and in effect discriminate against women,” and a country with a “history of patriarchy, negative gender stereotypes,” and marginalization of women in all parts of society, as outlined in a recent press release and shadow report by the Global Justice Center and the Gender Equality Network.

 

Arriving in Geneva after a long, trans-Atlantic flight, Sann immediately commenced preparations with members of local women’s groups. In an unprecedented show of cooperation, women’s groups agreed to submit a joint oral statement to the CEDAW Committee and GJC helped formulate and draft the statement.  In Geneva, Sann helped to finalize the oral statement, prepare answers to “possible questions from [the] committee,” and compare CEDAW’s list of issues with official responses from the  government in order to effectively highlight the precarious situation faced by women.

In e-mail correspondence from Geneva, Sann stresses the importance of listening to women working on the ground to effect change. She notes that, “the CEDAW Committee pays attention to these informative quick assessments and opinions of women from the ground.” Topics covered might include structural barriers and discrimination in law, underrepresentation of women at all levels of government and in the peace process and violence against women, including conflict-related sexual violence committed by the military. Between intense preparation sessions, Sann and her activist colleagues found time to celebrate the country’s rich culinary diversity, cooking “rice and Burmese soup and salad,” and “[sharing] food together.”

The women, Sann writes, are now “ready to engage with CEDAW.”

Follow us on Twitter or Facebook to stay updated on the CEDAW review and other GJC news.

Status of women’s rights in Myanmar to be reviewed at the UN

In July 2016, GJC staff member Michello Onello and Ma Sabe Phyu, Director of Gender Equality Network, published an article in Mizzima titled, "Status of women’s rights in Myanmar to be reviewed at the UN," on the Myanmar's CEDAW Review taking place in Geneva.

Click here to read the article in Mizzima.

ISIS is Committing Genocide: Now What?

by Jessica Zaccagnino

On March 17th, Secretary of State John Kerry declared that ISIS is committing acts of genocide against Yazidis and other minority groups in Iraq and Syria, launching the United States into a complex discussion of how to feasibly prosecute ISIS. Although there is not universal ascension to the Genocide Convention, customary international law has enshrined obligations of the international community to prevent, suppress, and punish perpetrators of genocide. Akila Radhakrishnan, the Legal Director of the GJC, emphasized in an interview that “the prohibition on genocide is actually considered to be so widely important that it has attained an even higher status of customary international law called jus cogens,which means it is absolutely non-derogable in every context.” The United States, party to the Genocide Convention, is required by both international conventions and customary international law to take action against genocide. Declaring that ISIS is committing is relatively easy, but actually prosecuting ISIS poses a unique set of challenges in part due to their non-state actor status: logistical, legal, and otherwise.

The prosecution of ISIS for genocide raises numerous, difficult questions: first, what body should carry out trials? In a resolution released days prior to Kerry’s announcement, Congress indicated support for trial in an internationally-run court, such as the International Criminal Court, or an entirely new tribunal, would be the best course of action. The White House has yet to indicate a plan of prosecution. Similar questions of logistics, such as who to hold responsible and where to hold large numbers of detainees, have also been raised. The existence of a defined administrative hierarchy within ISIS raises questions as to what extent subordinates should be held accountable for acts planned by their superiors; however, this is a question that plagues most tribunals.

In terms of prosecuting foreign fighters, it will likely be easier for the United States to turn over detainees to Iraq, an ally, than to Syria, as the US has been supporting rebel groups wishing to oust President Bashar Assad. Since ISIS utilizes many foreign fighters, estimated at 27,000, the use of national jurisdiction over these fighters may open up opportunities for a case in the ICC, even though Iraq and Syria are not party to the Rome Statute, or domestic trials in the US if extradited. The final problem is one of evidence: genocide is a very difficult crime to prove. Due to the “specific intent” portion of the definition, more extensive evidence is required than general charges of crimes against humanity or war crimes. This means, in order to prosecute ISIS, there must be a careful collection of evidence, all while in an active war zone.

To successfully prosecute ISIS for crimes of genocide, the US and international community will have to parse through numerous complex challenges in the near future and focus their energy not on only combatting ISIS militarily, but also constructing a clear prosecutorial strategy.

Although prosecuting ISIS for crimes of genocide poses a unique set of challenges, they are not impossible to overcome. The United States and the global community have a duty to prosecute crimes of genocide under international humanitarian law. ISIS’ prosecution, with the US playing an active role, is of utmost importance, especially now that both the US and UN’s Commission of Inquiry on Syria have come to the consensus that ISIS is perpetuating genocide. Countries must engage with these challenges proactively and address them head on in order to make substantial progress towards prosecution.

Clickhere to read the full interview with Akila Radhakrishnan and Grant Shubin, lawyers at Global Justice Center, about the US’ declaration of ISIS’ genocide.

John Kerry Says It's Genocide

FOR IMMEDIATE RELEASE - March 17, 2016

[WASHINGTON, DC]– This morning, US Secretary of State John Kerry announced that Daesh is committing genocide against ethnic minorities, including Yazidis, Christians, and Shia Muslims. This is the first genocide the US has recognized since Darfur in 2004.

Myanmar and the Road to Lasting Peace Round Table Discussion

On February 11th, 2016, the Global Justice Center hosted a round table on Myanmar and the Road to Lasting Peace, featuring two Human Rights defenders from Myanmar, Naw Zipporah Sein and Ying Lao, and Policy Advisor at US Campaign for Burma, Myra Dahgaypaw. At the round table, moderated by the Global Justice Center’s Senior Burma Researcher Phyu Phyu Sann, participants discussed the impact and shortcomings of last year’s cease-fire and election, as well as their hopes for continued international participation in the peace process.

In November 2015, Aung San Suu Kyi’s National League for Democracy (NLD) won an enormous victory in Myanmar’s national election, ending almost half a century of military control of the government. Despite this promising democratic election, Myanmar’s military continues to play an outsized role in governance as the country’s constitution guarantees the military at least 25% of the seats in parliament and the constitution cannot be amended without army approval. The month before the election, the military government and eight of the armed ethnic groups signed a cease-fire after almost two years of negotiations. Although the international community has heralded the cease-fire as a victory for peace in Myanmar, the round table participants noted that fighting continues in many areas of the country, especially in the Shan state and other regions with large ethnic minority populations.  One participant testified that fighting actually increased in many of these areas after the cease-fire was signed, even on the day of the national election. She urged that the international community work to include all ethnic groups in cease-fire agreements. The current cease-fire was signed by only eight ethnic armed organizations—seven other groups refused to sign, and another six were prevented from signing by the government.

In the 2015 election, Myanmar’s ethnic groups voted overwhelmingly for Suu Kyi’s NLD party, but a round table participant remarked that they are still waiting to see whether or not the new government has the power to effect change while the military retains so much political and economic power. The NLD government continues to face entrenched challenges, but the people of Myanmar made it clear in the election that they want to see change.  Round table participants stressed that armed conflict and human rights abuses are continuing to take place in their country, and they urged the international community to continue to press for a lasting and fair peace in Myanmar that includes all ethnic groups.

Global Justice Center Urges International Criminal Court to Investigate ISIS’s Genocide against Yazidi Women and Girls

FOR IMMEDIATE RELEASE  - December 22, 2015

[NEW YORK, NY] – ISIS systematically perpetrates crimes against religious and ethnic minorities in Iraq and Syria, including the Yazidi people. Yazidi men and elderly women are killed, boys are recruited and converted and young women and girls are repeatedly raped, bought and sold as sex slaves, forcibly converted, married, and impregnated. As many as 3,000 girls and women remain in captivity.