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

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

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

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I. Introduction

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

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

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

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

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

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

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

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

Speakers:
Honourable Marilou McPhedran, Independent Senator, Parliament of Canada
Her Excellency Jacqueline O’Neill, Ambassador for Women, Peace, and Security, Canada
Honourable Bob Rae, Special Envoy on Humanitarian and Refugee Issues, appointed by the Prime Minister of Canada
Prof. Payam Akhavan, Member of the Permanent Court of Arbitration, The Hague; Faculty of Law, McGill University; Counsel for The Gambia at the ICJ in the case of The Gambia v. Myanmar
Prof. Yanghee Lee, UN Special Rapporteur on the situation of human rights in Myanmar (May 2014 to 30 April 2020)
Prof. Susan Breau, Dean, Faculty of Law, University of Victoria, Canada
Prof. Christine Chinkin, Emerita Professor of International Law, London School of Economics, UK
Prof. Victor V. Ramraj, Faculty of Law and Director, Centre for Asia Pacific Initiatives, University of Victoria, Canada
Prof. John Packer, Associate Professor of Law, Director of the Human Rights Research and Education Centre (HRREC) & Neuberger-Jesin Professor of International Conflict Resolution, University of Ottawa, Canada
Ms. Razia Sultana, Chairperson, Rohingya Women’s Welfare Society, Cox’s Bazar, Bangladesh
Ms. Wai Wai Nu, Rohingya/Burmese founder, Women’s Peace Network, Yangon, Myanmar
Ms. Akila Radhakrishnan, President, Global Justice Center, New York, USA
Ms. Mavic Cabrera Balleza, Founder and Chief Executive Officer, Global Network of Women Peacebuilders, New York, USA