Publications

I. Introduction Over the years, parties to armed conflicts have systematically used sexual and reproductive violence against civilians to demoralize, terrorize, destroy, and even alter the ethnic compositions of entire communities. A large proportion of the victims of this violence, sometimes over 80%, are children. Stark examples include Rwanda, where nearly 250,000-500,000 women were raped in one hundred days as a part of the genocide in 1994, and an estimated 20,000 “enfants mauvais souvenirs” (children of bad memories) were born from these rapes. In Bosnia, women were held in rape camps, repeatedly raped until they became pregnant, and intentionally confined until it was too late for them to obtain an abortion. Boko Haram raped hundreds of women and girls and held them in sexual slavery. During one rescue of victims kidnapped by Boko Haram, at least 214 women and girls were found to be pregnant. More recently, the UN confirmed that Russian forces have committed numerous acts of rape and other sexual violence, with victims ranging from age four to eighty-years-old, which the UN said in some cases amounted to torture and war crimes. The UN has also documented armed gangs in Haiti using sexual violence to punish individuals associated with rival gangs, and to “assert power and control over people”. While most victims have been women and girls, men and boys have also been abused and subjected to violence. LGBTQ+ individuals have also suffered grave sexual violence in Haiti, with LBTQ+ women recounting incidents of “corrective rape” to “cure” them of “homosexuality.” Sexual violence in conflict settings can amount to torture and other cruel, inhuman and degrading treatment (CIDT) in violation of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL). While all people in conflict settings have a right to protection from sexual violence and to reparations for such grave harm, all too often the compounded or independent reproductive harms individuals suffer go unrecognized and unremedied. For example, reproductive violence such as forced pregnancy, forced abortion, forced contraception and forced sterilization occurs regularly in conflict. Additionally, other reproductive rights violations such as lack of access to abortion, particularly when pregnancies are the result of rape, and to contraception and/or sexual and reproductive health (SRH) information and services to enable individuals to prevent unwanted pregnancies occur frequently in crisis contexts. Maternal mortality and morbidity rates are also disproportionately high in conflict settings due to inadequate living conditions and lack of access to prenatal and maternal health care.

The undersigned organizations and individuals — with representation from multiple geographic regions — express our support for a global convention on crimes against humanity, and urge states to utilize the 2024 April Resumed Session of the UN’s Sixth Committee to express strong support for a procedure to be adopted at the 79th Session of the UN General Assembly to move the Draft Articles on Prevention and Punishment of Crimes against Humanity forward to negotiations for a treaty. Throughout history, millions of people have been subjected to murder, extermination, enslavement, deportation, persecution, and other atrocities that have shocked the conscience of humanity. Crimes against humanity continue unabated across the globe and the Draft Articles provide a timely and urgent opportunity for states to help end impunity. Although crimes against humanity are among the most serious crimes in international law, there has yet to be a treaty regulating their prevention and punishment. A treaty on crimes against humanity would close a crucial gap in the current international framework on mass atrocities as well as clarifying states’ duties to prevent such crimes and means to cooperate with each other. A crimes against humanity treaty can also rightfully contribute to global affirmation of the gravity of these crimes. In 2013, the UN’s International Law Commission approved crimes against humanity to be included in its programme of work. The Commission, in 2019, recommended the elaboration of a convention by the UN General Assembly or by an international conference.  In 2022, the UN’s Sixth Committee adopted resolution 77/249 to take forward steps for a treaty on crimes against humanity, including two interactive sessions in 2023 and 2024 on the Draft Articles, and a plan to take a decision on the ILC’s recommendation that a treaty go forward in the 79th session of the General Assembly. We believe the International Law Commission’s Draft Articles represent a strong starting point to open negotiations on a treaty. There is broad agreement that the Draft Articles contain a number of positive elements, and differences in perspectives on the existing Draft Articles should not be used to perpetuate inaction. Accordingly, we urge states to follow the Commission’s recommendation that a treaty on crimes against humanity should be negotiated, either by the General Assembly itself or in a Diplomatic Conference convened for that purpose. Our organizations also urge states at the April resumed session to identify important areas for further strengthening the Draft Articles. A variety of civil society groups have developed proposals toward this end. These include strengthening the proposed treaty by a variety of means. We urge states at the April resumed session also to express overall support for an approach to the development of a crimes against humanity treaty that is gender-competent, survivor-centric, and deploys an intersectional lens. This includes ensuring the inclusion of a non-discrimination provision to apply and interpret the treaty’s provisions consistent with international human rights law. We believe it is equally essential that the treaty-making process itself is inclusive. States should facilitate meaningful, inclusive, and safe public and civil society participation from across the region, in all stages of the treaty-development process, including by people of all gender identities, as well as victims, survivors, and affected communities, and ensure that their voices are adequately represented in the final provisions of the treaty. A full list of signatories can be found here.

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.

Overview: States should adopt a survivor-centric approach to the Draft Crimes Against Humanity Convention States must take a survivor-centric approach throughout when considering the Draft Articles on the Prevention and Punishment of Crimes Against Humanity (the “Draft Crimes Against Humanity Convention”). This is an essential approach in relation to all victims and survivors of crimes against humanity, particularly those who may face ongoing marginalization or risks, such as survivors of sexual violence and other gendered harms. A survivor-centric approach recognizes that victims and survivors of crimes against humanity will have suffered immense harm and trauma. It aims to put the rights and agency of each victim and survivor at the forefront of all actions and ensures that they are treated with dignity and respect and supported to make informed decisions with regards to accessing protection, support, justice, and remedy based on their own needs and priorities. Such an approach also requires states to keep at the forefront of their minds how the text of the treaty will actually affect victims and survivors, including consideration of how victims and survivors will be able to meaningfully and effectively access their rights through the treaty’s provisions and the institutions implementing them. It emphasizes that seeking justice is a right, not just a privilege, for victims and survivors. A survivor-centric approach thus requires states to ensure that victims’ and survivors’ rights are robustly protected and set out throughout the Draft Crimes Against Humanity Convention. International criminal law and international human rights law provide that victims and survivors have rights to: (i) effective protection; (ii) effective support; (iii) notice of their rights; (iv) timely notice of developments during proceedings, including those related to justice and remedy; (v) participate in criminal and other relevant legal proceedings; (vi) have legal representation during criminal and other relevant legal proceedings; (vii) obtain full and effective reparation; and (viii) have reparation awards enforced. Such an approach also requires that states ensure that all provisions related to protection, assistance, remedy, and reparations for victims and survivors respect and strengthen their autonomy and are provided irrespective of survivors’ ability or willingness to cooperate in legal proceedings against the alleged perpetrator. In line with the human rights law principle that requires all people to be involved in decision-making that affects them, a survivor-centric approach also requires states to meaningfully engage victims and survivors in treaty development, adoption, implementation and monitoring processes, participating in decisions that impact them, and ensuring that victims’ and survivors’ voices are adequately represented in the final provisions of the treaty. States must understand victims and survivors’ priorities at each stage of the process. For example, in other forums, victims and survivors have identified justice and accountability as a key priority, including by strengthening the ability of international and domestic justice systems to deliver justice for gender-based crimes. As victims and survivors are not a homogeneous group, when taking a survivor-centric approach, states must give particular consideration to ensuring the substantive equality of victims and survivors who are subjected to marginalization and discrimination, including intersectional discrimination. This brief first sets out the importance and potential avenues of state action to ensure robust, meaningful, and effective participation of victims and survivors in discussions and decision-making in relation to the Draft Crimes Against Humanity Convention (Section I). It then highlights specific ways in which the provisions of the Draft Crimes Against Humanity Convention should be strengthened to reflect international human rights law and standards in line with a survivor-centric approach, namely by: adopting a broad and unambiguous definition of ‘victim’ in the treaty that ensures all individuals harmed by crimes against humanity are included (Section II); and expanding the treaty’s reparations provisions (in present Draft Article 12(3)) to ensure all relevant victims and survivors have access to prompt, full, and effective reparations (Section III). It concludes with a non-exhaustive list of additional examples for consideration that states should include in discussions on the recognition and rights of victims and survivors (Section IV).

Dear Excellencies, We, the undersigned individuals and organizations, are writing regarding the Draft Articles on Prevention and Punishment of Crimes Against Humanity, currently under your consideration. We applaud the Sixth Committee’s leadership on and engagement with the draft articles. April’s resumed session discussion was an indisputable advance. Progress is being made to form the basis for actual negotiations of a new crimes against humanity convention that would have significant potential to advance protection for civilian populations at risk as well as justice for gender-based crimes. The current draft draws its definitional language from the Rome Statute of the International Criminal Court. The statute was an important step forward in the codification of atrocity crimes, including its explicit recognition of a range of sexual and gender-based crimes beyond rape. However, in the 25 years since the Rome Statute’s adoption, there has been significant progress in our understanding of sexual and gender-based crimes and notions of gender, and a new international treaty on crimes against humanity must reflect that progress. Indeed, the ILC itself noted that its objective in drafting the articles was not “codification of existing law,” but rather, to draft “provisions that would be both effective and likely acceptable to States, based on provisions often used in widely adhered-to treaties addressing crimes, as a basis for a possible future convention.” In that vein, we support the ILC’s decision to exclude the Rome Statute’s definition of ‘gender’ from the draft articles in recognition of “developments in international human rights law and international criminal law” that reflect “the current understanding as to the meaning of the term ‘gender.’”

Overview It is imperative that the 2019 Draft articles on Prevention and Punishment of Crimes Against Humanity (the “Draft Crimes Against Humanity Convention”) protect the value of “reproductive autonomy,” meaning the right of every individual to exercise agency over their fertility; their choice about whether, and in what circumstances, to reproduce. Rights related to reproductive autonomy are protected in international and regional human rights instruments. In addition, the International Criminal Court (ICC) Trial and Appeals Chambers have affirmed that reproductive autonomy is the distinct value protected by the crime against humanity of forced pregnancy, demonstrating that this value is already embedded in international criminal law. However, forced pregnancy is only one of many violations of reproductive autonomy that impinge upon a person’s physical integrity and offend their human dignity. To be relevant to the lived experience of people whose reproductive autonomy is imperiled, particularly women and girls, the Draft Crimes Against Humanity Convention should protect against such violations by: Amending draft Article 2(1)(g) to refer to: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual or reproductive violence’’ (proposed additional text bolded); Removing the redundant and potentially confusing reference to national laws from the existing definition of forced pregnancy in draft Article 2(2)(f); and Using gender-inclusive language (“woman, girl, or other person” instead of “woman”) in the definition of forced pregnancy in draft Article 2(2)(f). For each proposed revision, this brief first summarizes the issue at a high level, provides detail on the reasoning and related jurisprudence in the following section, and is followed by the proposed recommendation.

Recommendation: To add forced marriage as a standalone violation to the list of prohibited acts in Article 2(1) of the draft Crimes Against Humanity Convention. If deemed necessary, to add a definition – “compelling a person to enter into a conjugal union with another person by the use of physical or psychological force, or threat of force, or by taking advantage of a coercive environment” – to Article 2(2). Addition of Forced Marriage to Article 2(1) Under the crimes against humanity category of ‘other inhumane acts’, acts of forced marriage have been successfully prosecuted at the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC). In those cases, forced marriage was classified under the category of ‘other inhumane acts’ because it was not explicitly listed in the statutes of any of those tribunals. The drafting of the Crimes Against Humanity Convention represents an ideal opportunity to rectify this oversight and explicitly recognize forced marriage as a standalone prohibited act. In 2009, in Prosecutor v. Sesay et al., the SCSL Trial Chamber convicted the defendants of forced marriage, and this finding was upheld by the Appeals Chamber. This represented the first conviction for forced marriage as an ‘other inhumane act’ crime against humanity under international criminal law. In 2018, the ECCC Trial Chamber convicted defendants for forced marriage as the crime against humanity of ‘other inhumane acts’ and the crime against humanity of rape within the forced marriage context. This was confirmed by the ECCC Supreme Court Chamber in 2022. In 2021, in Prosecutor v. Ongwen, the Trial Chamber rendered the ICC’s first conviction for forced marriage, and this was confirmed on appeal in 2022. Over the last 14 years, international courts have consistently concluded that forced marriage constitutes the crime against humanity of ‘other inhumane acts’. These judgments covered forced marriage committed during a time span of more than four decades and in three different contexts. In each case prosecuted, defendants have questioned the validity of recognizing forced marriage because it is not an explicitly listed prohibited act under the crimes against humanity provision of the courts’ respective statutes. Inclusion of forced marriage in the list of prohibited acts would: (1) more directly reflect the gravity and widespread nature of forced marriage in armed conflict and atrocity situations; (2) recognize the strength of the case law described above; and (3) avoid continuous re-litigation on the nature of forced marriage and its status in international criminal law. We do not recommend adding forced marriage to the list of sexual and reproductive acts in Article 2(1)(g) as it is not only a sexual or reproductive violation, and does not require such a violation, as explained below.

Introduction On April 11, 2023, the Permanent Mission of the Republic of Sierra Leone to the United Nations submitted in writing its proposal to include the slave trade as an enumerated provision in the Draft articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”). In its current composition, the Draft Articles enumerate the prohibitions of enslavement and sexual slavery. The Draft Articles, however, omit the enumeration of the slave trade even though under international law the slave trade is a jus cogens or peremptory norm with erga omnes obligations. The status of the slave trade stands uncontested as a treaty-based and customary-based international crime, a crime against humanity, and a nonderogable human rights violation.The slave trade protects against serious conduct that requires redress in all circumstances, including during a widespread or systematic attack against a civilian population. This brief supports Sierra Leone’s proposal and advances the reasons for the Draft Articles to incorporate a provision for the slave trade as a crime against humanity.

Excellencies and Country Representatives: The undersigned respectfully bring your attention to a glaring and consequential gap in the current Draft Articles on Prevention and Punishment of Crimes against Humanity: the omission of the crime against humanity of gender apartheid. By replicating the definition of “apartheid” as codified in the 1998 Rome Statute of the International Criminal Court, the draft treaty is needlessly constrained to a 25-year-old articulation of race-based apartheid. It fails to account for gender-based apartheid, which has long been recognized by the international community, including United Nations Secretary-General António Guterres. The past decades have witnessed significant progress in recognizing gendered crimes, and codifying gender apartheid should be part of that continued progress. The failure to codify gender apartheid perpetuates an accountability vacuum that leaves many victims and survivors without remedy or reparation. The crime of gender apartheid is unique in animus and intent. It is distinct from other international crimes, including gender persecution, due to its dystopian ambition to maintain an institutionalized regime of systematic oppression and domination, where the under-class is subjugated for the dominant group’s benefit and survival, dehumanized, and cut off from the resources and access needed to overcome their choreographed oppression. The Taliban’s ever deepening and institutionalized oppression of Afghan women and girls is a case in point. The codification of gender apartheid will assist victims and survivors holding perpetrators to account for the totality of crimes committed against them.