Early this month the International Tribunal on Crimes Against Women of Burma convened in New York City. At the Tribunal the testimonies of twelve women outlined atrocities committed by Burmese officials against women during the longest ongoing conflict in the world. Representatives of the witnesses recounted brutal gang rapes, torture and murder committed by Burmese soldiers for the purpose of suppressing pro-democracy and self-determination movements among Burma’s many dissident minority ethnicities. The Tribunal was sponsored by the Nobel Women’s Initiative. It was presided over by a panel of judges comprised of many of the most distinguished human rights and international law scholars currently in practice. The judges included Nobel Peace Prize Laureates Shirin Ebadi and Jody Williams, and former CEDAW co-chair and international crimes against women scholar Dr. Heisoo Shin, and human rights professor Vitit Muntarbhorn. We are privileged to have a copy of the portion of their judgment against the Burmese military junta concerning war crimes and crimes against humanity one week before the full judgment is released to the public. We extend our gratitude to the Nobel Women’s Initiative for providing this to the Foreign Policy Association:
“WAR CRIMES: The testifiers we have heard today describe their harrowing experiences in being forced to do work for the military, in being raped by military personnel both during forced labor and in other circumstances, in having their homes and villages pillaged and destroyed by the military, and in being forced to flee. These are war crimes because they are attacks directed at civilians in the context of and associated with armed conflict under customary international law as reflected in the 1949 Geneva Conventions and the Rome Statute which created the International Criminal Court.
Here the armed conflict is non-international in character. Ethnic groups within Burma have been fighting for the right to self government since the British took control of Burma and India. Under the current regime, these groups have been further stripped of their autonomy and continue to fight.
On the basis of the testimonies today and other documentation, we find that in areas where these hostilities are taking place, the following war crimes have been committed or tolerated by officials of the military regime: rape, sexual violence, sexualized torture and other forms of torture, violence to life and person, outrages on personal dignity, intentional attacks against the civilian populations, pillage and destruction or seizure of their property, and displacement of the civilian populations for reasons related to conflict. War crimes give rise to individual criminal responsibility.
CRIMES AGAINST HUMANITY: Crimes against humanity refers to specific crimes committed as part of a widespread or systematic attack against a civilian population. We find that the ongoing, systematic attacks by the Burmese military regime against the peoples of Burma constitute crimes against humanity. The attacks are widespread and have been carried out across the country affecting untold numbers of women – and their families and communities. The fact that similar crimes have been committed against Burmese women in different parts of the country is evidence that the regime has a policy to actively commit and/or passively permit these attacks.
The brutal crimes inflicted on women as part of these attacks include: rape and sexual violence; torture, including rape and sexual violence; enslavement including forced labor; sexual slavery including trafficking; imprisonment and other severe deprivation of physical liberty; persecution directed against individuals based on their political, national, ethnic, cultural, religious and gender identities; forcible transfer of populations; and other inhumane acts.
The testimonies here and the reports available to us provide ample evidence that women as political activists, Burmese women and women of ethnic minorities, some of whose representatives have testified here today, have all been targets of crimes against humanity. Crimes against humanity give rise to individual criminal responsibility.
Despite Burma’s failure to ratify the Rome Statute of the International Criminal Court, we find that its definition of crimes against humanity is applicable to the crimes against women in Burma because it also represents basic customary international law applicable to all. As such, it provides the basis for individual States to exercise universal jurisdiction conferred by international law – that is to prosecute the perpetrators in their national courts.
Further, the UN Security Council, the only international body that can take binding action with regard to the regime, has the power to respond to the Burmese regime’s threat to peace and security by referring the situation in Burma to the International Criminal Court, enabling that Court to investigate and prosecute officials of the Burmese regime. Our recommendations reemphasize the importance of Security Council involvement and call upon the Council to take all appropriate measures, including those necessary to accomplish this referral with all due speed, to bring an end to the ongoing and terrible threat this regime poses to women, as well as to the human rights, peace and security of all.”
What is not clear is the basis the Tribunal uses to claim war crimes and crimes against humanity are customary international law. Certainly international conventions to which Burma is signatory can uncontroversially be claimed as customary law such as the Geneva Conventions of 1949 and the CEDAW. But violation of these conventions does not merit referral to the I.C.C. as the Tribunal has recommended. The Rome Statute, establishing the I.C.C. and defining war crimes and crimes against humanity is still less than a decade old and not yet ratified by major powers such as the U.S. The case that it is current customary international law may be viable but would be daunting to make. By proposing that Rome Statute offenses are customary international law however it lends credibility to that notion. In addition to giving voice to the oppressed women of Burma the Tribunal was able to lay a brick in the foundation of what hopefully in the future will be the recognition of the Rome Statute, and referral of its violators to the I.C.C., as customary international law.
In related news, McSweeney’s Voice of Witness is working on the Burma oral history project to help share more of these womens’ stories. They need your help. Funds will go directly to interviewers and translators in Burma and in border regions, some of whom are themselves struggling to survive. You can donate at the Voice of Witness website.
