Publications

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. 

Abortion Restrictions violate the right to health of women of color and perpetuate racial discrimination

For the last four years, the Trump administration has waged a war on sexual and reproductive health and rights around the world. Some of the tools in its arsenal are US foreign assistance restrictions on family planning and abortion. To be sure, many of these restrictions pre-date Trump, but this administration had a laser focus on weaponizing them to undermine and attack the fundamental human rights of women. The change in US leadership with the Biden administration offers a chance for renewed attention and pressure on the need to repeal these odious restrictions, some of which are better known and understood than others. Much has been said on the Global Gag Rule and to a lesser extent the Helms Amendment (“Helms”). However, little has been written or is understood about the Siljander Amendment (“Siljander”), which prohibits lobbying for or against abortion with US foreign assistance funds. Even so, the Siljander Amendment has appeared in recent news: In August 2020, 60 US Senators and Representatives signed a letter to John Barsa, Acting Administrator of the US Agency for International Development (“USAID”) urging enforcement of Siljander by reducing “US contributions to UN Secretary-General and to UN organizations that lobby for abortion…in amounts proportional to their abortion-related lobbying,” also referring to “a fictitious international right to abortion.” This flawed assessment comes, unsurprisingly, on the heels of the US government cutting assistance to the Organization of American States (“OAS”) in 2019 based on erroneous claims that its agencies engaged in lobbying for abortion in violation of the Siljander Amendment. In light of these concerning developments, and with the new Biden administration taking office, this factsheet is intended to provide background information regarding the Siljander Amendment, how it has been applied – namely, to censor constitutional and legal reform and fundamental human rights – and why it should ultimately be repealed, along with all other US abortion restrictions on foreign assistance. Download Fact Sheet

For an in-depth analysis of the new Title X regulations (Final Rule, Domestic Gag Rule, or Domestic Gag), the impact on clinics’ participation in Title X and patients’ access to healthcare, domestic litigation challenging the restrictions, and how the Domestic Gag Rule violates the United States’ international human rights legal obligations, see the Global Justice Center and Leitner Center’s full report. The Domestic Gag Rule is part of a broader pattern aimed at restricting access and denying women their ability to exercise their fundamental human rights For the last four years the Trump administration has engaged in a systematic effort to undermine reproductive choice and bodily autonomy. Internationally, the Trump administration has attempted to undermine international law and institutions that protect sexual and reproductive health and rights (SRHR) and has cut funding for organizations that promote reproductive rights and services. President Trump reinstated and expanded the Global Gag Rule, limiting funding for foreign non-governmental organizations that provide abortion services as a method of family planning and restricting a wide variety of speech about abortion services, research, and advocacy, with well-documented detrimental impacts on sexual and reproductive health, HIV and AIDS services, and maternal mortality. Download Fact Sheet

The introduction of the Prevention of Violence against Women Law (PoVAW) in Myanmar is an important opportunity for Myanmar to at long last ensure a comprehensive framework for addressing sexual and gender- based violence, bring its domestic laws in line with international obligations, and ensure adequate redress for violence to all women. This requires, however, that Myanmar passes and implements the law in accordance with the highest standards possible; some standards are not discretionary but rather firm commitments Myanmar is required to uphold, including under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Geneva Conventions, and customary international law. Myanmar’s obligation to protect all women from violence is governed by the legal principle of “due diligence,” meaning that the Myanmar government is responsible for taking measures to prevent, investigate, prosecute, punish, and provide reparations for all acts of gender-based violence committed by both private and public officials. The Myanmar government has long shown a lack of commitment to breaking the cycle of impunity for widespread sexual and gender-based violence, a problem that is exacerbated by broader structural barriers with respect to Myanmar’s military justice system, and a lack of robust domestic options for accountability. Recently, Myanmar has rejected any responsibility for sexual and gender-based violence in its Independent Commission of Enquiry (ICOE) report, engagement with the case filed by The Gambia at the International Court of Justice (ICJ), nor CEDAW review. The introduction of this law also comes at a critical time of renewed conversations regarding justice and accountability, with specific respect to the crimes committed against the Rohingya, via processes at the ICJ, the International Criminal Court (ICC), and domestic courts in third party states under the theory of universal jurisdiction. It is imperative that any efforts to draft and pass a new law take meaningful steps towards addressing sexual and gender-based violence. Myanmar has also received consistent recommendations from the CEDAW Committee, United Nations (UN) Secretary-General, and Special Rapporteur on the situation of human rights in Myanmar to ensure the new law complies with international standards; however, this version of the law patently does not meet those standards. Download Fact Sheet

On January 20, 2020, Myanmar’s Independent Commission of Enquiry (“ICOE”) submitted its final report to Myanmar’s government. The report, which was initially due on July 30, 2019, was instead submitted three days before the International Court of Justice handed down its unanimous decision on provisional measures in The Gambia v. Myanmar. With the mandate to “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA,” Myanmar has relied on the work of the ICOE since its creation to object to international efforts, including those of the UN Security Council, to ensure accountability for the crimes against the Rohingya.

In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that attention is paid to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes. The Global Justice Center’s full submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions. Download Fact Sheet Iraq’s Legal System Fails to Protect Women and Girls Against Discrimination A fundamental principle of international human rights law is the protection against discrimination. The Universal Declaration on Human Rights and the Charter of the United Nations – as well as CEDAW, CAT, and the ICCPR – have all codified the principles of non-discrimination and equality. Under these principles, states are required to ensure that women, on the basis of equality of men and women, fully enjoy the benefits of the rule of law. Iraq’s definition of rape, forced marriage, and torture are a few examples of how the country’s criminal laws collectively fail to fully define, deter, prevent, punish, or redress sexual and gender-based violence crimes. Clearly defining these crimes in line with international standards is an important step in implementing the Iraqi Government’s obligations to eliminate discrimination against women. The broad and systematic nature of Daesh’s violence elevated their crimes beyond the traditional domestic framework and into international concern. Daesh committed all of the core international atrocity crimes of genocide, crimes against humanity, and war crimes; yet none of these have been formally outlawed by Iraq. Failing to investigate and prosecute international atrocity crimes as distinct crimes with specific gendered harms misses an opportunity to build a complete historical record, honor the experiences of victims, and ensure full accountability for Daesh’s criminality. Iraq’s criminal laws as rendered fail to provide protections for women and girls in violation of the requirement to ensure women are accorded equality with men before the law. As mentioned, specific examples where legal reform is needed include amending provisions regarding rape, forced marriage, and torture, as well as domesticating the international crimes of genocide, crimes against humanity, and war crimes in line with international standards. Survivors of Sexual and Gender-Based Violence are Entitled to Reparations Not only are women and girls entitled to non-discriminatory application of the rights contained within these human rights treaties, but so too are they entitled to non-discriminatory reparations in the event that those rights are infringed. If Iraq’s criminal laws are left unchanged, Daesh’s victims will be unable to achieve meaningful justice or seek proper redress for the unique harms they faced on the basis of their gender and sex. Under international law, survivors of sexual and gender-based violence are entitled to reparations including guarantees of non-repetition. One measure of guaranteeing non-repetition is “[r]eviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.” As the CEDAW Committee has recommended, State parties should “mandate institutional reforms, repeal discriminatory legislation and enact legislation providing for adequate sanctions in accordance with international human rights standards.” Such legal reform is required to ensure “women and girls are able to move forward and reconstruct their lives without facing discrimination.” Complete gender justice will take a fully transformative agenda with actors at the local, regional, and international level finally recognizing, redressing, and remedying the gender-based discrimination that underlies the treatment of women and girls. Such effort includes reforming Iraq’s criminal laws to bring them in line with international standards, in order to safeguard better protections for victims from violence and ensure access to justice. Questions for the Iraqi Government Domestic Crimes: What measures has the Government taken to amend its laws to ensure women are protected against discrimination, both under the law and in practice? What steps has the Government taken to adopt a definition of torture in line with CAT? What plans does the Government have to remove its reservations to CEDAW, specifically to Article 2(f) and (g) and Article 16, and to fully implement CEDAW? International Crimes: What steps has the Government taken to adopt domestic legislation criminalizing genocide, crimes against humanity, and war crimes in line with its legal obligations? Download Fact Sheet (with citations)

The Draft Convention on Crimes against Humanity offers an opportunity to improve accountability for grave violations of international law; however in its current form, it continues to limit justice for sexual and gender-based violence. The International Law Commission (“ILC”) undertook the task of compiling a Draft Convention on Crimes against Humanity in 2014. In the ILC’s first draft, it replicated the definition of crimes against humanity verbatim from the Rome Statute of the International Criminal Court (“Rome Statute”)[1] for the sake of expediency, sparking unprecedented engagement from gender groups and experts to reform the provisions. As a result, during the final cycle of the ILC drafting process, 20 of the 33 states that submitted comments and a cohort of 23 UN experts called for the removal of an outdated definition of gender that failed to recognize a basis for persecution and limited justice and accountability for such crimes. Removing the gender definition was a crucial step towards recognizing that it is not enough to merely replicate existing language without reckoning with legal developments and the gendered dimensions of mass atrocity crimes. However, the call did not go far enough to address the draft treaty’s inadequacies on sexual and gender-based violence, including restrictive definitions of torture, enslavement, and other sexual and gender-based acts “of comparable gravity” that constitute crimes against humanity. This factsheet will focus on one such crime under the treaty—forced pregnancy. Download Fact Sheet Lack of a Legal Basis for Differentiation Forced pregnancy is the only prohibited act under the draft treaty that makes an exception for conflicting national legislation. The draft treaty’s criminalization of forced pregnancy, taken directly from the Rome Statute, states: “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.” This deference is in “stark contrast” to the criminalization of other mass atrocity crimes, where reliance on domestic law is a last resort. The inclusion of the qualification in the Rome Statute was solely the result of political compromise and has no functional or legal basis. Conservative states, led by the Holy See, feared that including forced pregnancy as a crime under the Rome Statute would impact laws and policies denying abortion access. This compromise gives undue authority to ideological and patriarchal concerns about control over women’s bodies rather than addressing the grave violation that it seeks to remedy. The exception also creates a legal inconsistency by simultaneously criminalizing forced pregnancy while creating a caveat for states to ban its equitable remedies, namely abortion access. Legal Developments on Forced Pregnancy and Abortion Services Contrary to the ILC’s assertion that the Rome Statute represents the consensus on crimes against humanity, modern formulations have evolved since its adoption. Several states and international judicial bodies have enacted legislation criminalizing forced pregnancy without reproducing the caveat for national laws. In the decades since the passage of the Rome Statute, abortion access has been deemed a fundamental right and many treaty bodies, UN experts, and courts have called for the decriminalization of abortion as a matter of state obligation. They have found that state restrictions on access to abortion, particularly in cases of rape, incest, and life and health endangerment, constitute violations of the rights to be free from torture, to health, to life, and to non-discrimination. The draft treaty must not codify language that is at odds with human rights standards. Concrete Actions to Promote Gender Justice The last stage of the drafting process of the Draft Convention on Crimes against Humanity demonstrated that gender considerations are essential to bring the treaty in line with modern conceptions of international law. However, using the removal of the definition of gender as a model, more must be done to ensure that gender is mainstreamed throughout the Draft Convention. To ensure that forced pregnancy is properly criminalized as a crime against humanity, states should: Conduct a gender audit of the Draft Convention on Crimes against Humanity to ensure that gender is effectively mainstreamed and that the articles reflect the progressive legal developments on gender since the adoption of the Rome Statute Only recommend the adoption of the Draft Convention with “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy” removed from the definition of forced pregnancy contained in Article 2(2)(f) Enact or amend domestic legislation on crimes against humanity to criminalize forced pregnancy unconditionally Continue to stand up forcefully for abortion care as an equitable remedy to which survivors of forced pregnancy are entitled as a matter of right Download Fact Sheet (with citations)

Amidst new and renewed attacks on sexual and reproductive health and rights, it is more important than ever for humanitarian aid policies to explicitly include abortion services. Lack of Services is Life-Threatening Women’s bodies have become part of the modern battlefield. This is true both in the literal battlefield, where conflict-related sexual violence is as prevalent as ever,[1] as well as in the political battlefield, where reproductive freedom is increasingly under siege. Today, women and girls facing pregnancies from war rape rarely receive abortion services.[2] The gap in services is the result of draconian funding restrictions, lack of clear donor guidance, and misunderstandings about the protections afforded under international law.[3] When safe abortion services are unavailable, war rape survivors face life-threatening pregnancies which can lead to serious physical injury, risk of suicide, and the incapability of many young persons’ bodies to safely carry a baby to term.[4] International Law Protects Abortion Services As a legal matter, armed conflict is a specific type of humanitarian setting, governed by a specific area of law—international humanitarian law (IHL). IHL ensures victims of armed conflict receive the medical care they need by protecting them with rights. In cases of pregnancy, these rights require the option of abortion services.[5] As a matter of practice, many humanitarian donors and actors use a “needs-based” model—administering medical care to meet patients’ needs without regard to the legal framework. In light of reinvigorated global assaults on reproductive health, it is essential that needs-based approaches are bolstered by the strong rights-based protections embedded in IHL. Humanitarian actors, advocates and donors must ensure that their work and policies are grounded in victims’ rights so that victims’ needs are comprehensively met. IHL Rights Protecting Pregnant Persons in Armed Conflict Right to all necessary medical care based solely on patient’s condition and without adverse distinction based on sex As “wounded and sick” in armed conflict, pregnant women and girls must be provided “the medical care and attention required by their condition.”[6] In all cases, medical treatment should be as favorable to women as that granted to men.[7] The right does not mean that medical treatment for each sex must be identical. Instead, medical outcomes for the sexes must be the same and can be achieved through differential treatment.[8] IHL does not spell out the types of treatments that should be given, but only requires that they be those based on the condition of the patient.[9] In the case of pregnant persons in armed conflict, necessary medical care includes the provision of abortion services. For example, whereas the condition of a man raped by a stick requires surgery, the condition of a woman impregnated by a penis requires the option of abortion. Right to be free from torture and other cruel, inhuman and degrading treatment IHL prohibits “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.”[10] “Torture” is defined as “severe physical or mental pain or suffering” on the basis of “discrimination of any kind.”[11] The definition of torture is intentionally ambiguous so as to allow for the inclusion of new acts, treatments and interpretations.[12] The denial of abortion services has been explicitly determined to cause serious mental and physical suffering constituting torture and other cruel, inhuman and degrading treatment in certain contexts.[13] Concrete Actions to Save Lives While the protection of abortion services under IHL has been increasingly recognized—including by the European Union, the UN Secretary-General, the UN Security Council, and the Inter-Agency Field Manual on Reproductive Health in Humanitarian Settings[14]—services are not comprehensively provided. To ensure war rape survivors receive the medical care they need, national governments and international organizations should: Adopt a policy recognizing that persons impregnated by rape in armed conflict have absolute rights to non-discriminatory and comprehensive medical care under IHL, including the option of safe abortion services. Sample Policy: “International humanitarian law governs situations of armed conflict and requires offering safe abortion services to guarantee the right to non-discriminatory medical care—failing to offer such services amounts to torture and inhuman treatment.” Implement this policy that guarantee the right to abortion access in armed conflict by: communicating the policy to all humanitarian aid partners; clearly informing partners of their obligations under IHL; and incorporating the policy into contracts, memoranda of understanding, and other agreements with humanitarian partners. Ensure humanitarian funds are segregated from those with restrictions on abortion care, including US humanitarian funds. Continue to stand up forcefully for abortion care in armed conflict as a matter of right in international and regional fora. Download Fact Sheet [1] See UN Secretary-General, Report of the Secretary-General on Sexual Violence in Conflict, U.N. Doc S/2019/280 (29 Mar. 2019). [2] See e.g. G. Burkhardt et al., Sexual violence-related pregnancies in eastern DRC: a qualitative analysis of access to pregnancy termination services, 20(10) Conflict & Health (2016). [3] See Burkhardt, supra note 2. [4] Dr. H. Liebling et al., Women and Girls Bearing Children through Rape in Goma, Eastern Congo: Stigma, Health and Justice Responses (2012); see Harv. School of Pub. Health & Physicians for Human Rights, The Use of Rape as a Weapon of War in the Conflict in Darfur, Sudan (2004), at 20. [5] Akila Radhakrishnan et al., Commentary, Protecting Safe Abortion in Humanitarian Settings: Overcoming Legal and Policy Barriers, Reproductive Health Matters, Nov. 2017. [6] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. [7] Geneva Convention III, art. 14; ICRC, Customary International Law Database, r. 110. [8] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. [9] Common Article 3 to the Geneva Conventions; Additional Protocol I to the Geneva Conventions, art. 10; Additional Protocol II to the Geneva Conventions, art. 7. See also Letter from Louise Doswald-Beck, Professor of International Law, to US President Obama, 10 Apr. 2013, https://bit.ly/2FkGUQK. [10] Common Article 3 to the Geneva Conventions. [11] Elements of Crimes for the ICC, Definition of torture as a war crime (ICC Statute, art. 8(2)(a)(ii) and (c)(i)). [12] Int’l Committee of the Red Cross, 1958 Commentaries to Geneva Convention IV, art. 3, at 38. [13] See Report of the Sp. Rapp. on torture, ¶ 46, U.N. Doc. A/HRC/22/53 (1 Feb. 2013); see also CAT Concluding Observations: Peru, ¶ 23; Committee against Torture, Concluding Observations: Chile, ¶ 7(m), U.N. Doc. CAT/C/CR/32/5 (14 June 2004); Human Rights Committee, General Comment No. 28, ¶ 11, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000). [14] UK DfID, Safe & Unsafe Abortion, (2014), p. 9; United Nations Security Council, U.N. Doc. S/PV.7160 (25 Apr. 2014), at 15 (statement by France’s Mr. Araud); UNSC, U.N. Doc. S/PV.6984 (24 June 2013), at 48 (statement by Neth.); EU Commission, Letter from F. Mogherini and C. Stylianides in response to request of 39 MEPs for Commission to evaluate policy on abortions for victims of war rape, 11 Sept. 2015; R. Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace – A Global Study of the Implementation of UNSCR 1325, (2015), p.77; Inter-Agency Working Group on Reproductive Health in Crises, Minimum Initial Service Package 60, 161 (2011); Sphere Association, The Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Responses 327, 331-332 (4th ed. 2018).