Janet Benshoof, Global Justice Center President, writes an article for the Democratic Voices of Burma explaining in depth Thomas Quintana's difficult position as UN Special Rapporteur on the Human Rights Situation in Myanmar.
Click here to read the full article.
July 1, 2012 marked the International Criminal Court’s 10th anniversary. The ICC was established by the Rome Statute which came into effect in 2002, creating the first permanent international court in history. Ten years later, critics and supporters alike are assessing the progress of the Court in achieving its goals of bringing to justice those responsible for the most atrocious human rights violations.
Over the past ten years, the ICC can claim a number of impressive achievements—many of which are especially remarkable for an institution lacking any law-enforcement apparatus of its own and which operates solely on the basis of cooperation with participating states. Currently, the ICC is working in seven situation countries and monitoring developments in seven others. In March this year, the ICC delivered its first judgment in a case concerning the use of child soldiers in the Democratic Republic of the Congo. Six cases are in the trial stage and nine others in pre-trial phase. These proceedings indicate a growing acceptance by governments and state actors that impunity for war crimes will no longer be tolerated by the international community.
In addition to its international legal role, the Court is also raising global awareness of human rights violations and the importance of providing an avenue of justice for victims. The ICC’s proceedings have emphasized, on a global scale, that children cannot be used as soldiers during hostilities, that sexual violence as a weapon of war is an unacceptable international crime, and that those in positions of power must safeguard the fundamental human rights of people caught in conflict.
Despite these achievements and successes, the ICC still faces many hurtles. Among these is the failure of the most powerful and influential countries in the world to ratify the Rome Statute, the unwillingness of signatory states to arrest wanted criminals, and accusations that the Court serves as a political tool of the West. To date, 121 countries have ratified the treaty and another 32 have signed the Statute, indicating an interest to join in the future. However, states like Russia, China, and the United States have refused to ratify the treaty due to a fear that it will result in their own political and military personnel being charged with war crimes or crimes against humanity. Many also view ratification of the treaty as an interference with their state sovereignty and an overreach of the international community into domestic affairs and legal proceedings.
The Court still faces many challenges to its authority and legitimacy within the global community. There are myriad complicated legal issues surrounding the prosecution of war criminals whose offenses have spread across borders and affected groups of people under the jurisdiction of multiple legal systems. However, the increased awareness that the Court has brought to the complicated legal issues involved in prosecuting war crimes has revealed the desperate need for an international body such as the ICC in which victims are given a means of achieving justice against perpetrators of war crimes and the valuable role that the Court plays in international justice. Though many obstacles remain to achieving the goals outlined by the Rome Statute, the Court’s accomplishments during its first ten years indicate a strong push in the direction of international justice and a promising future for the ICC and its influence on the international stage.
To read more about events commemorating the Court’s 10th anniversary, visit the official website.
Update: On July 10, 2012, the ICC issued its first sentence since its establishment ten years ago. To read more about the case, click here.
Post by: Adrian Lewis
Interstate armed conflicts are rare nowadays but intrastate armed conflicts have been on the rise in recent years. Intrastate conflicts often involve non-state actors and pose an important question for the international community – how can non-government parties be bound under the international humanitarian law (“IHL”).
International Humanitarian Law applies to all the signatory States of the Geneva Conventions of 1949 and their Additional Protocols of 1977 but it also binds non-state actors: private citizens, armed groups, national liberation movements, and international organizations. It has been established that since IHL provides rights and special protections to private citizens in conflict, it also confers obligations, as demonstrated by the Nuremberg trials, international tribunals, or recent ICC decision to sentence Congolese warlord Thomas Lubanga to 14 years for using child soldiers and forcing them to commit atrocities. Several instruments also create IHL obligations on part of non-government armed or rebel groups – Common Article 3 of the Geneva Conventions, the Second Additional Protocol of 1977, and Article 8 paragraph 2 of the Statue of the International Criminal Court (“ICC”), whereas the First Additional Protocol applies to national liberation movements. And while there is no specific legal provision that binds international organizations under international humanitarian law, the ICC specifically stated that “an international organization is a subject of international law and, as such, is bound by all the obligations deriving from the general rules of international law.”
It is important to remember though that IHL does not apply to any instances of violence but only those non-international armed conflicts that satisfy organization requirements and reach certain level of intensity, and possibly duration. Mere riots, isolated acts of violence, protests, and single acts of terrorism do not constitute an armed conflict under international humanitarian law. Despite difficulties in proper identification of armed conflicts under IHL, currently there is no single legal body that provides armed conflict designation; rather the UN Security Council and the General Assembly call for application of IHL in certain conflict situations, implying existence of an armed conflict under IHL. Perhaps, the international community could benefit from a clearer statutory definition of an armed conflict or expanding IHL applicability to any instances of violence motivated by a specific goal.
On July 10, just 10 days after its 10th anniversary, the ICC delivered its first sentence. The ICC sentenced Thomas Lubanga, a Congolese militia leader, to 14 years in prison for the recruitment and use of child soldiers as a part of his rebel army, the Union of Congolese Patriots, from 2002-2003. Throughout that time, Lubanga and his army abducted, trained and used children to terrorize and kill villagers in the Ituri region of the DRC. While the justices clearly agreed that Lubanga deserved to be sentenced, one of the three judges, Elizabeth Odio Benito of Costa Rica, wrote a dissenting opinion saying that the sentence had been too lenient. Judge Benito suggested that the sentence should have been longer so as to properly reflect the extent of damage done to the child soldiers and their families.
One example of the type of damage that Judge Benito may have been referring to is sexual violence. Among the crimes included in Lubanga’s trial, sexual violence was noticeably missing from the list. This was seemingly a product of the prosecutor’s shortcomings. Presiding judge Adrian Fulford criticized the prosecution saying that “Not only did the former prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis.” The ICC’s rules of procedure allow for additional crimes to be introduced and considered during the sentencing stage. However, despite this capability, the judges determined that there was insufficient evidence presented to link sexual violence to the proven child soldier recruitment, and sexual violence therefore played no part in Lubanga’s sentence.
This glaring oversight, regardless of whether it be largely at the hands of the prosecution or the judges, is yet another example of the failure to recognize the plight of the female child soldier. Female child soldiers are subjected to the same horrific conditions and treatment as all other child soldiers but suffer even further through sexual violence and diminished ability to escape. Grace Akallo, a former child soldier in the Lord’s Resistance Army in Uganda described how she and other girls as young as 7 were given as wives, where they would then be regularly subjected to sexual abuse. They were sent to fight at the front lines while pregnant, with children on their backs, and some were even left with no choice other than to give birth on the front lines. There is undoubtedly a shared stigma among all child soldiers, but the female experience is significantly different from that of the male and failure to take additional measures to recognize this distinction is a failure to protect women’s rights.
Brigid Inder, executive director of the Women’s Initiative for Gender Justice pointed out the contradictory nature of the scenario because “the Rome Statute contains the most advanced articulation in international criminal law of acts of sexual violence committed, particularly in armed conflict situations, and yet the first case for the ICC didn’t include any charges for gender-based crimes.” Judge Sang-Hyun Song, President of the ICC said that “the ICC promotes a model of gender-sensitive justice… the needs of women and children receive special attention in the ICC,” and that “international justice promises to serve as a warning to those who intend to exploit and abuse the most vulnerable members of our society that they will be tried, prosecuted and punished.” While these remarks are hopeful and comforting, the recent performance by the prosecution and the sentence that followed demonstrated a weak showing that would hardly serve as an effective warning to other exploiters of vulnerable groups. Lubanga’s sentence and the absence of sexual violence from the charges against him highlight the unfortunate ease with which women’s rights can be overlooked and this is unacceptable. A lesson must be learned from the failure to distinguish and defend the specific rights of the female child soldier. It is critical that in future ICC trials and sentencing, all parties involved take it upon themselves to ensure that women’s rights in any and all circumstances are protected and promoted, as a necessary prerequisite pursuant to the “gender-sensitive justice” that Judge Sang-Hyung Song spoke of.
Under the leadership of newly appointed president Joyce Banda, Malawi has refused to host the upcoming African Union summit due to its unwillingness to condone the ongoing impunity of Sudanese leader Omar al-Bashir, who is wanted by the International Criminal Court on charges of genocide, war crimes, and human rights atrocities committed in Darfur under his command. Although an ICC arrest warrant has been out for Bashir since 2010, he has repeatedly attended meetings and summits in a number of African countries over the past two years, including in Kenya, Ethiopia, Eritrea, Djibouti and Chad. Even the former Malawian president Bingu wa Mutharika welcomed Bashir at a regional economic summit last year. As the ICC has no law enforcement mechanism of its own, it relies on the local officials of member nations to apprehend individuals accused of crimes by the Court.
Bashir is wanted by the ICC for multiple international legal offenses as a result of his major role as Sudanese President in the atrocities in Darfur, which began in 2003 and resulted in the deaths of an estimated 300,000 people and the displacement of almost 4 million. In 2009, a warrant was issued for his arrest on five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape) and two counts of war crimes (intentionally directing attacks against a civilian population or against individual civilians not taking part in hostilities and pillaging). While the Court stopped short of issuing a warrant on charges of genocide, upon further investigation of the evidence, such a warrant was issued just a year later in July 2010. The effect of charging Bashir with the crime of genocide was to oblige all states party to the UN Genocide Convention (all UN member states) to arrest the accused upon entry into the country or stand in violation of the Convention by condoning impunity for genocide, a significant violation of the convention which could plausibly (and should) result in serious political, diplomatic, or economic consequences.
The July AU summit was set to be held in Lilongwe next month, but will now be moved to the Ethiopian capital of Addis Ababa. The decision came after President Joyce Banda threatened to arrest Omar al-Bashir upon his entry into Malawi, in accordance with the ICC warrant currently issued for his arrest. She has also declared her intention not to attend the meeting and to send Malawi’s vice president as the country’s representative at the summit. Banda has avoided questions as to whether her absence at the meeting is in protest of Bashir’s attendance, and she has repeatedly stated that her first concern is maintaining the health of the Malawian economy and ensuring continued revenue from foreign donors.
While Banda’s move is clearly a step in the right direction in terms of the ICC’s international legal effort to apprehend Bashir, the President’s actions were likely motivated more by the desire to protect Malawi’s economic interests than as an expression of righteous indignance at al-Bashir’s continued impunity in the face of international condemnation. Banda has indicated that her boycott of the summit was intended to placate western governments and organizations which contribute significant sums of foreign aid to Malawi, donations which comprise an estimated 40% of the country’s annual GDP. She has noted that a visit from Bashir would be frowned upon by international donors and said in a statement, “My main agenda is to put Malawi on an economic recovery path and that’s what I am trying to do.”
Many have argued that we should be concerned by the way aid conditionality is being used under the ruse of “Malawi’s best interest” – is that to remain under donor colonization? It’s always more powerful to know choices are made from conviction rather than under threat. It would of course be ideal if countries were motivated to comply with ICC mandates—to which they are already signatories—simply on the basis of justice and respect for the rule of law. However, in the current international political climate such idealism is unfortunately not the reality. The truth is that state actions are motivated by a multitude of economic, social, and political factors, and it’s important to take all of these into account when assessing government action.
In addition, while it is legitimate to point out the flaws in the conditionality of foreign aid, it is also important to consider the alternative. Should governments and institutions contribute significant sums of aid money to countries whose governments openly flout the international legal mandates with which they have officially agreed to comply? Should there be no circumstances under which foreign aid contributions are denied to a government that openly supports the impunity of accused war criminals and perpetrators of genocide such as Omar al-Bashir? In response to allegations of “donor colonization,” international legal experts have responded by contending that continuing and reverberating voices and pressure from the CICC, various NGOs, activists, and political leaders are essential pieces of the puzzle to ensure compliance with the ICC. In other words, these institutions and actors have a unique power to influence government to take the right steps towards compliance with the ICC.
The international community has a legal obligation to ensure that human rights violations and crimes against humanity are not condoned by any state. In order to achieve this end, governments often resort to economic sanctions and the (sometimes limited) political tools at their disposal. While criticism of the use and distribution of foreign aid is a vital aspect of non-governmental oversight, it is important to consider each situation from multiple perspectives. Perhaps President Banda’s actions were motivated by economic and political interests rather than strong personal conviction, but the refusal to welcome Bashir into the country was an obligation Malawi had already assumed as a member of the UN and an official supporter of the ICC. In addition, the resulting discussion over international legal compliance and respect for international norms is a valuable opportunity to highlight the continued impunity of accused war criminals such as Omar al-Bashir and the legal obligation of the international community of states not to tolerate or condone the failure of governments to comply with international law.
The conversation about the importance of providing abortion services to victims of rape in armed conflicts would be incomplete without looking at the impact on children born to rape victims. The international community has already recognized forced pregnancy as a crime under the Rome Statute of the International Criminal Court (ICC) but it has a limited application since it requires all three elements of the crime to be satisfied. Article 7, paragraph 2 (f) requires–(1) unlawful confinement of a woman (2) forcibly made pregnant (3) with the intent of carrying out other grave violations of the international law. It is unclear what exactly falls under other grave violations of international law and means that women who were forcibly made pregnant but escaped or forcibly made pregnant without the requisite intent are not protected under the Statute.
As a result of rape or forced impregnation, these unwanted children whose mothers were forced to carry them to term due to lack of abortion services are often subject to stigma, discrimination, abandonment, abuse, neglect, and even infanticide, especially in cases of boys who are seen as potential enemy combatants. These children are commonly rejected not only by their mothers who seek to avoid shame but also by the entire community- they are seen as illegitimate, “enemy” children and may be denied citizenship rights, effectively rendering them stateless. In Rwanda, children born out of rape are often referred to as “children of hate” or “children of bad memories.”Lacking necessary support from their mothers and communities, rape children are caught up in a vicious cycle and end up getting exploited, becoming child soldiers or turning to prostitution and crime. They are more likely to suffer psychological and physical trauma as a result of unsuccessful abortion attempts by their mothers or nonexistent neonatal care, and are at a higher risk to contract HIV. They also often have attachment and trust issues even later in life and are unable to maintain familial relationships. Even children who are kept by their mothers are often raised in extreme poverty resulting from societal stigma that prevents rape victims from finding a job given lack family support or alternative childcare options.
Currently there are no specific initiatives by the international community that would protect and provide assistance to rape babies. The ICRC, WHO, and UNFPA merely issued recommendations recognizing the need to combat stigma associated with rape children. Readily available access to safe abortion services could provide an immediate solution for rape victims who are now forced to carry to term an unwanted pregnancy and later abandon or even murder their unwanted children.
In the past two weeks, Deputy Chief of Mission Kyaw Win and Soe Aung, the second and fourth-ranking Burmese diplomats at the Burmese Embassy in Washington, have defected and are seeking asylum in the United States. Both diplomats cited the unrelenting abuse of their fellow countrymen by the military junta, sham elections, and fear for the safety of themselves and their families as reasons for their defections.
This recent wave of defections of high-ranking officials is undeniable evidence of the egregious human rights abuses that the Burmese government has been committing for decades. GJC aggressively advocates for legal action to be taken against the Burmese government in the form of a referral to the International Criminal Court (ICC). Furthermore, the UN Security Council should pass a resolution deeming the Burmese constitution “null and void” under international law for it is a complete breach of international law and poses a threat to international legal accountability as a whole. For more information, see GJC’s legal brief, Burma’s Nuclear Strategy: How Burma’s Military Has successfully Hijacked Democracy and Made Control over Burma’s Nuclear Future a Constitutional Right of the Military.
Adding to the growing evidence of atrocities, this week, a Burmese refugee in Australia Htoo Htoo Han confessed that he committed war crimes while serving as an undercover military intelligence officer in Burma. “For so long I have lived like an animal. Now I want to release what I carry inside for 20 years. I want to say sorry to the mothers and fathers of the people I killed.” Han admits to carrying out 24 executions during a 1988 anti-government student uprising and being implicated in over 100 more killings. However, since Australia is a supporter of the pro-democracy movement in Burma, the decision of the Australian government to report Han’s confession may jeopardize the interest that some Australian corporations have in Burma’s resources, specifically their access to crude oil.
Hopefully, these defections and confessions will increase awareness of the human rights atrocities that are being committed in Burma. Furthermore, GJC hopes that this information instills a sense of responsibility in the UN and other members of the international community to provide support for take radical action against the overtly oppressive Burmese government and support the creation of a democracy.
The International Federation for Human Rights (FIDH) and, Global Justice Center partner, the Burma Lawyers Council (BLC) released a report entitled: “Advancing Human Rights and Ending Impunity in Burma: Which External Leverage?”. The report catalogues the presentations of leading exiled Burmese organizations, international and regional human rights NGOs, as well as renowned international legal experts from an FIDH-BLC joint seminar in May 2009.
As said by 2003 Nobel Peace Prize winner Shirin Ebadi in the introduction of the report: “We know that there can be no effective treatment by simply wiping the slate clean and starting anew…Burma cannot claim international legitimacy by merely plastering onto one of the worst dictatorial systems in the world a mask of democracy that fools no one.”
Global Justice Center President Janet Benshoof gave the keynote remarks, calling to end impunity in Burma through an International Criminal Court (ICC) referral, which would demand criminal accountability. This accountability is essential to sustainable peace and national reconciliation in Burma:
“The legal duty to ensure Senior General Than Shwe and other top criminal perpetrators are prosecuted for perpetrating crimes of concern to the global community is neither an option nor a “lever” for change. This legal duty, just like the criminal culpability of these perpetrators, exists today and forever. It can never be negated, suspended, or replaced by a statute of limitation, peace agreements, talks, sanctions, elections, negotiations or amnesties.
However, generations of men, women, and children of all ethnic and religious backgrounds have lived and died in Burma without knowing peace, without having received any forms of redress or justice and, without experiencing the most basic guarantees of human dignity embodied in the Universal Declaration of Human Rights. They are entitled to justice in their lifetime. I believe we can make this happen.”
Please access the full report here:
http://www.fidh.org/IMG/pdf/FIDH_BLC_Burma_seminar_final_internet.pdf
To read more about criminal accountability in Burma, please reference the Global Justice Center “How to Talk About Burma” tool:
http://globaljusticecenter.net/publications/Advocacytools/BurmaQ&A.pdf
The passage of United Nations Security Council Resolution 1325 (SCR 1325) in 2000 was a legal milestone for women’s equality. For the first time, the UN Security Council not only recognized the gender-specific impact of conflict and historic gender discrimination in criminal accountability, it also underscored the need for women to participate in postconflict reconstruction. Ten years later, the military junta in Burma continues to flout this legal obligation through the routine and systematic use of gender based crimes and the utter exclusion of women from peacebuilding processes. To ensure respect for the legal obligations set out in SCR 1325, the international community must address the situation on the ground for women in Burma, and women of Burma in exile.
Rampant Impunity for Gender Based Crimes
There is substantial documentation that sexual violence is used by the military junta against ethnic women in Burma as a means to consolidate military rule and destroy ethnic communities. Virtually none of the perpetrators have been brought to justice. These crimes are a threat to international peace and security.
Three concrete examples of this sexual violence include:
On July 15, 2009, Burma was reported to the Security Council by the Secretary-General as a country violating Resolution 1820, citing to the impunity afforded to the military’s systematic use of sexual violence against women. Security Council Resolutions 1325, 1820 and 1888 note that such crimes against women can constitute war crimes, a crime against humanity or a constituent act with respect to genocide. The Resolutions require that all perpetrators of these crimes be prosecuted in either domestic or international courts. SCR 1820 specifically recalls the Rome Statute to the International Criminal Court and prohibits any amnesties for these crimes.
Exclusion of Women from the Peacekeeping Process
Women’s peacebuilding organizations are based in neighboring countries, mainly Thailand, as a result of the stranglehold the military regime executes over all aspects of political, social and economic life in Burma. Under a constant threat to their safety, women’s organizations operate on very limited resources, and without the partnerships of UN bodies in the region. These women’s organizations are working tirelessly and courageously in the harshest of conditions to document the increasing human rights abuses by the military; and to educate women on their rights to political empowerment. However, despite the important perspectives these groups offer they are excluded from any international dialogue that takes place about Burma.
The International Community Must Uphold the Legal Obligations of SCR 1325
Recognizing that systematic crimes of sexual violence trigger the United Nations Security Council obligations under Resolution 1325 and 1820 to provide justice and accountability, the Global Justice Center advocates for the immediate launch of a Commission of Inquiry in Burma and a Security Council referral of the situation in Burma to the International Criminal Court (ICC).
FOR IMMEDIATE RELEASE - November 19, 2008
[NEW YORK, NY] - Certain judges in Burma, acting under the orders of Chief Justice U Aung Toe and Senior General Than Shwe, are themselves criminally liable as co-conspirators to crimes against humanity for their acts in “trying” and “convicting” 60 political activists last week. “These acts are the latest from the junta which uses the judiciary as one of its key weapons to commit grave crimes,” says Global Justice Center President Janet Benshoof. Judges including those listed below are criminally culpable and must be referred to the International Criminal Court.
FOR IMMEDIATE RELEASE - July, 2008
[NEW YORK, NY] - The Security Council should act under its Chapter 7 powers and end the impunity accorded the Burmese military junta for crimes perpetrated against the people of Burma. The junta uses torture, gang rape of ethnic women, slavery, murder, mass imprisonment, and abduction of children to fill military quotas in order to retain its power in what is a failed state. These acts go far beyond a repudiation of democracy; they are criminal violations of international humanitarian and human rights law, including violations of the Geneva Conventions. There is a growing international consensus that no safe harbor should exist for perpetrators of heinous crimes. The Project on Criminal Accountability for Heinous Crimes in Burma seeks a Security Council resolution establishing an Independent Commission of Inquiry to investigate the commission in Burma of the most serious of crimes of concern to the international community as a whole, which threaten the peace, security and well being of the world.
FOR IMMEDIATE RELEASE—June 20, 2008
[NEW YORK, NY] - The United Nation’s Security Council took a historic step with the passage of Resolution 1820 on Sexual Violence in Armed Conflict. Resolution 1820 recognizes the importance of full implementation of Resolution 1325 on women, peace and security and reaffirms the Security Council’s commitment to end sexual violence as a weapon of war and a means to terrorize populations and destroy communities. For this commitment to be meaningful, the Security Council must provide justice for victims of sexual violence in armed conflict even when it is not politically convenient.
This document contains a brief introduction to the different legal tools, international instruments and strategic contexts through which the advancement of women worldwide can be facilitated, and how the Global Justice Center is helping to achieve this goal.