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).

We have witnessed unfathomable death and destruction in the Gaza Strip and Israel. Thousands of people have been killed, injured, displaced, and nearly two hundred remain held hostage, including children and elderly. In Gaza, the UN has said that water, food, fuel, medical supplies, and even body bags, are running out due to the siege. The UN warned that people – particularly young children – will soon start dying of severe dehydration. Neighbourhoods have been destroyed and turned into complete rubble. Palestinians in search of safety have nowhere to go. Many of those who relocated from northern Gaza to the south after the relocation order by the Israeli army were reportedly bombed as they attempted to flee or once they arrived in southern Gaza.   The events of the last week have led us to the precipice of a humanitarian catastrophe and the world can no longer wait to act. It is our collective responsibility. On Sunday, October 15th, the United Nations Humanitarian Coordinator to the Occupied Palestinian Territory appealed to all parties to the conflict, and to Member States with influence, to urgently agree to a humanitarian ceasefire. Today, we put our voices together and call on all Heads of State, the UN Security Council, and actors on the ground, to prioritize the preservation of human life above all else. During this ceasefire, we call on all parties to unconditionally: Facilitate the delivery of lifesaving assistance, including food, medical supplies, fuel, and the resumption of electricity and internet to Gaza, in addition to safe passage of humanitarian and medical staff   Free all civilian hostages, especially children and elderly Allow humanitarian convoys to reach UN facilities, schools, hospitals, and health facilities in northern Gaza and commit to protecting them along with the civilians and staff inside them at all times Rescind orders by the Government of Israel for civilians to depart northern Gaza Allow patients in critical condition to be medically evacuated for urgent care The UN Security Council, the UN Secretary General and all world leaders with influence must take immediate action to ensure a ceasefire comes into effect. It remains our only option to avert further loss of civilian life and humanitarian catastrophe. Anything less will forever be a stain on our collective conscience. Civilians are not bargaining chips. Families need a chance to bury and mourn their dead. The cycle of violence against innocent civilians needs to stop.

Dear Secretary-General, In 2022 the Blue Smoke working group was formed by UNA-UK, Plataforma CIPÓ and Strategy for Humanity to shine a light on elections and appointments to senior positions within the United Nations. Working with civil society partners we have established the attached statement of principles which we believe should guide senior appointments at the United Nations and how states engage with appointment processes. We have the pleasure of sharing this statement with you, alongside the following list of civil society organizations that have endorsed them. Collectively we urge you to put them into practice, and in doing so, put inclusivity, transparency and fairness at the heart of UN appointment processes. We also urge you to champion these principles throughout the wider UN system.

Dear Ambassadors, We write to you ahead of this year’s annual Open Debate on Women, Peace and Security (WPS) to urge you to take action to realize the foundational demand of Resolution 1325 (2000)—ensuring women’s full, equal and meaningful participation in peacemaking. For nearly 25 years, the Security Council, the UN and Member States have pledged their support for women’s full, equal, meaningful and safe participation in peace and security. Yet women’s rights today are under ceaseless attack in contexts marked by intensifying conflict, rising authoritarianism, militarization and backlash. Women’s participation in peace processes remains unacceptably low, and is decreasing even in UN-supported peace processes. Meanwhile the credibility of the UN and the Security Council to protect and uphold these rights has been fundamentally shaken by growing geopolitical divides and the Russian invasion of Ukraine. Without principled and decisive action to protect women’s rights and ensure their full, equal and meaningful participation in all aspects of peace and security, we not only risk entrenchment of patriarchal norms, but jeopardize any chance of sustainable peace. We therefore call on you to demand, and to support, the full, equal, meaningful and safe participation and leadership of the women of Afghanistan, Burundi, Cameroon, the Central African Republic, Colombia, the Democratic Republic of the Congo, Ethiopia, Haiti, Iraq, Lebanon, Libya, Mali, Myanmar, the Occupied Palestinian Territory, Somalia, South Sudan, Sudan, Syria, Ukraine, Western Sahara, Yemen and all other crises on the Security Council’s agenda, in accordance with the standards set by the WPS agenda, in ending conflict and building peace in their countries.

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.