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The following responds specifically to question 1 regarding discrimination on the basis of gender and sexuality through laws, policies, directives, and requirements that target the rights of women and people with diverse gender identities, including members of Myanmar’s LGBTQ community. Gender-discriminatory laws and policies, and impunity for sexual and gender-based crimes, have long been the norm in Myanmar. Since independence in 1948, successive military regimes have perpetuated systemic discrimination based on gender, sexual orientation, and gender identity. The 2021 military coup greatly exacerbated gender-based discrimination and violence against women and people with diverse gender identities, and put an immediate end to any attempts to reform or eliminate these structural barriers to equality. The 2008 Constitution At the heart of Myanmar’s discriminatory laws and policies is the military-drafted 2008 Constitution. The same document that laid the groundwork for the February 2021 coup through its broad emergency powers provision has also enabled a culture of complete impunity for military-perpetrated crimes, including sexual and gender-based violence. Though the Committee Representing Pyidaungsu Hluttaw (CRPH) voted shortly after the coup to abolish the 2008 Constitution, it remains the law of the land in the parts of the country under junta control, and the junta regularly cites the Constitution’s authority. Even before the coup, the military faced no civilian oversight or accountability. The Constitution grants the military “the right to independently administer and adjudicate all affairs of the armed forces,” leaving it to hold itself accountable. This has created a culture of complete impunity for serious human rights violations, with a very small number of exceptions aimed at appeasing the international community. Furthermore, the Constitution grants amnesty for any crimes committed by the military under current or previous administrations, stating that no “proceeding” can be initiated against a member of the military “in respect of any act done in the execution of their respective duties.” The Constitution also exempts the Commander-in-Chief from all legal constraints, stating that his decision in the adjudication of military justice “is final and conclusive.” This provision has allowed the Commander-in-Chief, Min Aung Hlaing, to issue pardons to members of the military without oversight.

Background On October 27, 2022, the Global Centre for the Responsibility to Protect and the Global Justice Center convened a private roundtable discussion with international and Myanmar civil society representatives. Participants sought to strategize a new, multidimensional response to the crisis in Myanmar to inform advocacy and legal strategies. While the conversation touched upon a range of issues, discussion focused on the topics of: (1) elections; (2) creating an inclusive Myanmar; (3) justice and accountability; and (4) sanctions and arms. This discussion also incorporated aspects of an AJC-sponsored regional meeting on October 3 that explored similar issues. The following is a reflection of key themes, points, and recommendations from the roundtable, which took place under Chatham House rule.  Elections Participants discussed the military junta’s pursuit of elections, which are scheduled to be held in the summer of 2023 in accordance with the 2008 Constitution. With the election date fast approaching, civil society will need to act quickly to counter the junta. A key discussion concerned the necessary messaging from civil society to explain to the international community the risks associated with legitimizing any elections run by the military. Undoubtedly, any elections held by the junta in the present circumstances will be neither free nor fair, and participants reflected that the military is using elections as an “off-ramp” to gain international legitimacy after its less-than-successful coup. Holding sham elections to legitimize its power and priorities is not a new strategy for the junta, as seen in previous instances including the 2008 constitutional referendum in the wake of Cyclone Nargis, as well as the 2010 general election. Notably, the junta does not have effective control over the entire territory of Myanmar, with the People’s Defense Forces (PDF) and ethnic armed organizations (EAOs) controlling about half the country, especially in rural areas, inhibiting the junta’s ability to hold elections in many parts of the country. One area of difficulty for some actors in the international community is the fact that as the National Unity Government (NUG) and National Unity Consultative Council (NUCC) continue their work to solidify their footing, for some states, they do not present a clear alternative to the junta; as such, the elections, even if flawed, are seen as progress in a seemingly intractable situation. Overall, participants agreed that junta-run elections are not a solution to the current crisis; in fact, they will likely lead to increased tension and violence, and an increased risk of atrocity crimes in the country. 

ဂမ်ဘီယာမှ မြန်မာပြည်ကို အပြည်ပြည်ဆိုင်ရာတရားရုံးတွင် စွပ်စွဲထားသော အမှုနှင့်ပတ်သတ်သည့် နောက်ဆုံး အခြေအနေများ အမေးအဖြေများ ဖေဖော်ဝါရီ ၁၄၊ ၂၀၂၂ မြန်မာနိုင်ငံ၊ ရခိုင်ပြည်နယ်မြောက်ပိုင်းရှိ ရိုဟင်ဂျာတိုင်းရင်းသားများအပေါ် စစ်တပ်၏ရက်စက်ကြမ်းကြုတ်မှုများမှာ ဂျန်နိုဆိုက်ရာဇဝတ်မှု ကာကွယ်တားဆီးရေးနှင့် အပြစ်ပေးရေးကွန်ဗန်းရှင်းကို ချိုးဖောက်သည်ဟု ဂမ်ဘီယာနိုင်ငံမှ မြန်မာနိုင်ငံကို စွပ်စွဲထားသည့်အမှုကို ဖေဖော်ဝါရီလ ၂၁ ရက်မှ ၂၈ ရက်အတွင်း နယ်သာလန်နိုင်ငံ၊ သဟိတ်မြို့ ရှိ အပြည်ပြည်ဆိုင်ရာတရားရုံး (ICJ) တွင် လူသိရှင်ကြား ကြားနာမည်ဖြစ်သည်။ ထိုကြားနာမှုနှင့်ပတ်သတ်သော အဓိကအချက်အလက်များကို အောက်ပါအမေးအဖြေများတွင် ဖော်ပြထားသည်။. Download the Full Q&A

Dear Members of Congress, We, the undersigned 242 Burmese diaspora, local CSOs inside Burma, community-based organizations, and civil society organizations both here in the U.S. and around the world welcome the introduction of the Burma Unified through Rigorous Military Accountability Act of 2021, or, the BURMA Act, and call on all members of the U.S. Senate and House of Representatives to co-sponsor this crucial legislation and support its expeditious passage into law. As the situation in Burma worsens daily, U.S. action is vital to the millions of lives currently suffering at the hands of the Burmese military. The BURMA Act will provide much needed U.S. support for the realization of all Burmese peoples’ aspirations for an inclusive, rights respecting democracy. Since the February 1st coup, the people of Burma have seen increased human rights violations and militarization, and the situation is growing more dire by the day. While the number of people killed by the junta is significantly higher, there are over 1,100 confirmed deaths since February, including at least 75 children. More than 8,700 people have been arrested, of which an estimated 7,104 are still detained. 220,000 have been newly displaced, with 3 million in need of humanitarian assistance, according to the UN. The World Bank predicts an 18% drop in GDP for Burma this year, which, combined with slower growth in 2020 because of the COVID-19 pandemic, will leave Burma’s economy 30% smaller than originally expected. The World Food Program estimates that food insecurity will have more than doubled since the coup by October 2021 to more than 6.2 million people. Despite the Burmese military junta campaign of oppression to terrorize and demoralize the people, they have not won. In each of Burma’s states, ethnic minorities are witnessing the worst of the Burmese military’s violence and crimes against humanity. While it is clear that Burma’s ethnic minorities are disproportionately impacted by violence from the Burmese military, the country’s majority Burman group are also affected, representing the extent to which the junta’s attacks are indiscriminate and truly affect all in Burma. Read the Full Letter

The Asia Justice Coalition – a network of organizations that have come together to focus on international justice and accountability in Asia – expresses its grave concern at the plight of Rohingya refugees stranded at sea.

By: Maryna Tkachenko April 17, 2019 marked the 44th anniversary since the Communist Party of Kampuchea (the Khmer Rouge) took over Cambodia. While in power, the party sought to create a Cambodian “master race,” resulting in years of repression, forced labor, torture, and massacres. While the recent trials at the Extraordinary Chambers in the Courts of Cambodia (ECCC) convicted two Khmer Rouge leaders of genocide, the issue of sexual and gender-based violence perpetrated by the regime was not at the center of discussions. After decades of silence, survivors of sexual violence are speaking out about their experiences. Working toward justice, accountability, and peace building becomes a challenge when survivors are at risk of being blamed and discriminated against. Hence, in an effort to eradicate the stigma and facilitate transitional justice processes, women in Cambodia are demonstrating the ways in which Cambodian society is impacted years after the Khmer Rouge regime ended. The Khmer Rouge used the rhetoric of “liberating women” to disguise their abuse and exploitation. Although the Democratic Kampuchea professed to treat both genders equally—relying on a system of social ranks to classify its citizens—it resorted to forced marriage. The regime wanted to have an unquestionable control over every aspect of people’s lives, increase the population, and ensure a continuation of the next generation of Khmer Rouge cadres. Under a threat of execution, women were coerced into getting married and engaging in sexual intercourse. When they refused, their husbands or the Khmer Rouge officers raped them as a form of punishment. Highlighting long-term effects of sexual violence, recent research by the Cambodian Women’s Crisis Center—which interviewed both male and females victims—concluded that forced marriage during the Khmer Rouge regime has led to poverty that continues today. Driven by its desire to create a perfect Khmer society, the regime organized marriage ceremonies in a systematic manner throughout the region. According to the  Women and Transitional Justice in Cambodia project, a majority of the victims were female. The project’s final report notes that 96.6% of survey respondents experienced forced marriage; in cases of direct refusal, the respondents experienced verbal threats, imprisonment, sexual abuse, and forced labor. Furthermore, 80.1% of those who got married were raped after the ceremony. In addition to the lack of extensive research on the reality of sexual violence during the Khmer Rouge regime, survivors’ psychosocial needs are rarely addressed. Since women’s purity is valuable in Cambodian society, those who choose to testify face marginalization in present-day Cambodia. There is a well-known Cambodian proverb “men are gold while women are white linen.” In other words, it’s easier to clean gold than wash stains off white cloth; unlike men, women have a harder time reintegrating into the society after experiencing sexual violence. It implies that survivors of sexual abuse are sexually tainted and impure, which points to the need of combating inherent gender inequality and shifting societal norms around sexual violence. Addressing long-lasting consequences and pre-existing gender paradigms is imperative in successful peace building and preventing future crimes. Calling for an acknowledgment of the gender-based crimes perpetrated by the Khmer Rouge, an anonymous survivor says: “I buried my Khmer Rouge experiences for so long and I didn’t want to talk about them. But today, I hear and see them again. I feel angry, but I know that it is good to release these feelings. This can help the young generation accept the truth that this dark regime truly happened in Cambodia.” Women’s social empowerment is indispensable not only in challenging pernicious patriarchal norms but also in giving women equal opportunities to participate in the processes of holistic transitional justice. Almost five decades after the fall of the Khmer Rouge, the fight to address a culture of impunity and silence has not ended. We cannot deny Cambodian women a voice. Moreover, we cannot deny post-conflict generations their right to know the true extent of the regime’s crimes. PHOTO: DUDVA / CC-BY-SA-3.0  

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

Since August 2016, the Burmese military (Tatmadaw), Border Guard, and police forces have conducted a systematic campaign of brutal violence against Rohingya Muslims in Burma’s northern Rakhine State. These attacks come in the midst of a decades-long campaign of persecution of the Rohingya through discriminatory measures to police and control the group, including denying citizenship rights, restricting movement and access to healthcare, and limiting marriage and the number of children in families. While all members of the Rohingya population were targeted for violence, gender was integral to how the atrocities were perpetrated. This brief seeks to bring to light the international crimes—crimes against humanity and genocide—committed against Rohingya women and girls since 2016 by Burmese Security Forces and highlight the role gender played in the design and commission of these atrocities. The military has long used rape as a weapon of war and oppression in its conflicts with ethnic groups, and in the recent attacks, Rohingya women and girls were targeted for particularly brutal manners of killing, rape and sexual violence, and torture. Rape and sexual violence were widespread, pervasive, and often conducted in public. The acts resulted in serious bodily and mental harm to women, including in some circumstances, death. Many women reported being gang raped, some by as many as eight perpetrators. The rapes were accompanied by other acts of violence, humiliation, and cruelty. Women were beaten, punched, kicked, and subjected to invasive body searches. Their bodies were mutilated, their breasts and nipples cut off and vaginas slashed. Women and girls were not spared by age or condition—with girls as young as five and pregnant women among the victims. Gendered crimes and consequences were not limited to sexual violence and rape. Rohingya women and girls were often murdered by being burned alive or butchered by knives used for slaughtering animals—methods of killing that mirror the destruction of objects and property, demonstrating the Security Forces’ misogyny and deeply gendered conceptions of power. When these acts are compared against the elements of international crimes, they reveal a series of criminal conduct informed and defined by the gender of the victim. These include, as analyzed in this brief, the crimes against humanity of murder, persecution, forcible transfer or deportation, rape and other sexual violence of comparable gravity, and torture, as well as the genocidal crimes of killing, causing serious bodily or mental harm, inflicting conditions of life calculated to bring about physical destruction and imposing measures intended to prevent births within the group. The international community has, at long-last, begun to recognize the imperative to ensure justice and accountability for the crimes committed by Burmese Security Forces and the impossibility for justice in Burma’s domestic system. As the international community begins to develop mechanisms for justice and accountability—whether through international investigations and evidence collection, at the International Criminal Court, or in third-party states—it is essential that a strong gender perspective and analysis is incorporated at all levels of these processes, from investigation to prosecution to redress and reparations. Download the Full Report

This submission to the Independent International Fact-Finding Mission on Myanmar (“FFMM”) details the structural barriers that impede accountability for perpetrators and preclude justice for victims of human rights abuses in Myanmar. 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 Myanmar. Obstacles outlined in this submission 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 these structural impediments 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 Myanmar. Moreover, a situation of national unrest gives the military great powers under the Constitution capable of emboldening and further empowering the military. Download PDF