INTRODUCTION 

The Global Justice Center (GJC) hereby respectfully submits its recommendations to assist this Honorable Court in the interests of justice. GJC has not received any financial or economic support from any parties to the proceedings and will gain no patrimonial benefits no matter the outcome of the proceedings. 

OBJECTIVE 

Sexual violence “has been particularly egregious” in Myanmar and warrants this Honorable Court’s attention. The purpose of this submission is twofold to: present this Court with the international and regionally recognized principles and practices in relation to interviewing and engaging with victims and witnesses of sexual violence and; to set out international and regional standards applicable to assessing evidence of sexual violence.

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The following responds specifically to the topic: How the UK Government’s approach to atrocity prevention interacts with other government policies and areas of work, such as the FCDO’s approach to conflict prevention, the Women, Peace and Security agenda and the Preventing Sexual Violence in Conflict Initiative

Gender inequality is itself a root cause of mass violence and also increases its harm on disadvantaged groups, including women and gender minorities. As such, prevention that incorporates a gender lens has routinely been found to be more effective at adequately responding to situations of mass  atrocities and creating lasting peace. Prevention models must actively dismantle structural inequality through equitable representation in their programming, targeted efforts to prevent and suppress sexual and gender-based violence (“SGBV”), and include gender sensitivity in all stages of their responses. Despite the clear connection between successful atrocity prevention and gender integration, there are significant gaps in how States conceptualize and implement atrocity prevention. The failure to reckon with gendered experiences in prevention is evidenced by limited inclusion of gender indicia, or inclusion of overly simplified gender-related indicia, in early warning systems and risk assessments.

This submission outlines the need for UK leadership on gendering atrocity prevention and core principles to guide that leadership. First, it provides an overview of how gender informs the commission, planning, and harm of mass atrocity crimes, thus necessitating a gendered response. Second, it demonstrates how the inadequate accountability mechanisms, particularly gender gaps, feed the shortcomings of prevention frameworks. Third, the submission maps key international legal standards which must guide the UK’s prevention efforts and identify concrete measures for the integration of gender in atrocity prevention. Fourth, it assesses the opportunities and challenges in the UK’s current policies on atrocity prevention and their implementation. Finally, it provides recommendations on how the UK can improve its policies and practice with regard to atrocity prevention.

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Introduction

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Introduction

In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime.

Expertise

Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world.

First proposed argument: Irrelevance of national law

Art. 7(2)(f) of the Rome Statute states: ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws.

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Furthermore, where only economically developed or highly developed countries are considered, an even more robust consensus emerges. Of the 36 highly developed countries, 34 offer abortion on broadly available grounds. A significant number of nations offer abortions free of charge to low-income pregnant individuals.

International law coheres with these trends in comparative law. Contrary to amicus briefs submitted supporting Petitioners, international human rights law recognizes the well-known risks created by restrictive abortion legislation and requires states to ensure abortion access.

Access to safe and lawful abortion services is firmly rooted in the rights to life; to non-discrimination; to be free from torture, cruel, and degrading treatment; and to privacy. These rights are recognized in international human rights treaties ratified by the United States, such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture. The United States cannot, given its international obligations, enact legislation that transgresses these commitments. Banning abortion clearly does so.

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Dear Members of the US State Department Commission on Unalienable Rights,

This past May, the Global Justice Center sent a submission regarding our concerns with respect to the Commission, its work, and the potential harm that a final report produced by the Commission may have on the international human rights framework, specifically as it pertains to the right to abortion. 

Now, we write to you again as part of the two week public comment period following the release of the Commission’s draft report on July 16, 2020. First, we wish to call attention to the fact this is an inadequate length of time for meaningful engagement, both by the public and by the Commission, before finalization of the report. There is little reason to believe that this report is even viewed as a draft version, since the Commission has already completed all of its meetings and there is no mention of “draft” in the text of the draft report itself. Having reviewed the July 16 “Report of the Commission on Unalienable Rights” (“report”) and listened to Secretary Pompeo’s speech at its unveiling, as well as the following Commission meeting, we write again to express our concerns with the report and any final product that emerges from this Commission. More specifically, we are alarmed by the Commission’s flawed representation of the international human rights framework, its legal requirements, and its framing of abortion.

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Dear Members of the US State Department Commission on Unalienable Rights,

As a human rights non-governmental organization, we write to express our deep concern with the Commission, its work to date, and the potential harm that a final report produced by the Commission, in line with its mandate and the views expressed by several of its members, may have on the international human rights framework.

In particular, based on comments made by members of the Commission during public hearings, we are concerned that the Commission’s final report will aim to reinterpret the agreed-upon international human rights framework in a manner that regresses on clearly recognized and protected rights, including through the establishment of interpretations that are at odds with those from human rights bodies, experts, and courts, and may seek to establish a false and preferential hierarchy of rights. Any hierarchy that privileges some human rights - such as the freedom of religion - to the exclusion of others - such as sexual and reproductive rights, is fundamentally contrary to the framework of modern human rights, including as set out in the Universal Declaration of Human Rights (“UDHR”). Finally, we have strong concerns with regards to the Commission’s approach to sexual and reproductive rights, which is the particular focus of this submission.

With this letter we wish to reiterate that the international human rights law framework already adequately defines human rights; in particular, within that framework access to safe abortion has become firmly entrenched as a protected right.

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Dear Secretary Azar and Administrator Verma:

The Global Justice Center (“GJC”) submits this comment in response to the Department of Health and Human Services’ (“HHS”) Proposed Rule entitled Patient Protection and Affordable Care Act, Notice of Benefit and Payment Parameters for 2020 (the “Proposed Rule”).  For purposes of this submission, commentary is limited to the portion of the Proposed Rule that would amend the Patient Protection and Affordable Care Act (“PPACA”) so that private insurance providers that provide abortion services would be required to offer a version of the plan which does not cover abortion services.

GJC is an international human rights organization based in New York dedicated to achieving gender equality through the rule of law. For the past decade, GJC has been at the forefront of efforts to ensure that the law protects and promotes access to comprehensive sexual and reproductive health rights for women and girls around the world. As experts in women’s rights and human rights, we write to express our vehement opposition to the Proposed Rule.

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GJC writes a letter to Kristalina Georgieva, European Commissioner for International Cooperation, Humanitarian Aid and Crisis Response, to urge the European Commission to change its humanitarian aid policy in order to uphold the rights of women and girls raped and impregnated in armed conflict under the Geneva Conventions. 

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Global Justice Center writes Letter to Secretary Hillary Clinton on the US Security Council Presidency and Next Steps on Myanmar/Burma

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Letter to ASEAN Heads of State: ASEAN States, under the customary Laws of States Responsability are Prohibited from Recognizing, Myanmar/Burma as an ASEAN Member Because the Myanmar/Burma Constitution and Elections Violate the Most Fundamental Rules of International Law

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Letter to Bernard Kouchner. Re: Response to the Ministry’s Press Release on Burma, February 2010. France

Letter to Bernard Kouchner. Re: Response to the Ministry’s Press Release on Burma, February 2010. Appendix

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