Friday, November 27, 2015

Why the ICC is not doing anything about the Rohingya


‘WHY is the ICC not doing anything about the Rohingya?!’

This is a question I’ve seen a lot from different Burma activists in the past few years.

And when the International Human Rights Clinic at Yale Law School recently released a report concluding that genocide might be happening in Burma against the Rohingya my twitter feed blew up again with many indignantly calling on the International Criminal Court to start an investigation.

Because I am a firm believer in international criminal justice and an avid supporter of the ICC (despite its flaws) I want to explain why a possible investigation into the situation is not actually up to the ICC, and why an ICC investigation might not necessarily be the most appropriate way to protect the Rohingya.

Don’t get me wrong, I do believe there should be an ICC investigation and I agree that genocide might be ongoing (or at the very least crimes against humanity). However, it is important for people to understand who to address their criticism to and what an ICC investigation actually means in terms of protection.

The Rohingya, an ethnic Muslim minority, are one of the most persecuted minorities in the world. It is estimated that roughly about 1-2 million Rohingya live in Burma, while about 250,000 live as, mostly unregistered, refugees in Bangladesh. The Rohingya are not recognized as citizens in Burma by the 1982 Citizenship Law, and despite the fact that the Rohingya have been living in Burma for centuries the government and most people consider them illegal immigrants from Bangladesh. The Rohingya have long suffered discrimination by the government; they are unable to move, marry, or find jobs without obtaining government permits or paying bribes, and are systematically subjected to arbitrary arrests, forced labor, violence, forced displacement and eviction, among other human rights violations.

In July 2012 violence broke out between Buddhists and Rohingya in Burma’s Rakhine (Arakan) State. The violence quickly turned deadly and swept over the entire State, with attacks on the Rohingya by Rakhine Buddhists and some counter-attacks by the Rohingya on the Buddhists, with the Burmese government seemingly both unwilling and unable to do anything to stop it. This has led to many Rohingya now being forced to live in squalid conditions in camps, for ‘their own protection’, where they lack both adequate food and basic healthcare. (For more on this, see my earlier post ‘Burma’s Rohingya Policy – a Slow Burning Genocide’)

The current situation would seem like the perfect opportunity for the ICC to launch an investigation into possible crimes committed in Burma. However, while the persecution of the Rohingya and the recent violence would probably constitute at least crimes against humanity, and therefore technically fall under the jurisdiction of the ICC, it doesn’t mean that the Court has jurisdiction over this specific situation.

According to Article 15 of the Rome Statute, the ICC Prosecutor has proprio motu powers, meaning he or she may initiate an investigation on his or her own initiative.

However, ICC Prosecutor Fatou Bensouda can only use her proprio motu powers if the state where the crimes have happened is a party to the Rome Statute. A quick look at the ICC’s website (or even Wikipedia for that matter) confirms that Burma is not a state party to the ICC. This also means that another state party can’t refer the situation, as would otherwise be possible through Article 14 of the Rome Statute. Therefore, the ICC as an institution can’t be blamed for not investigating the situation in Burma – it simply does not have jurisdiction.

The only way for the ICC to have jurisdiction over a situation like the one in Burma would be through a referral by the UN Security Council acting under Chapter VII of the UN Charter (meaning the situation must be a threat to international peace and security), as allowed by Article 13 of the Rome Statute. It is therefore important to realize that any criticism at the lack of an investigation in Burma by the ICC should be directed, at least for the moment, at the UNSC – not at the ICC itself.

There are also reasons why an ICC investigation might not necessarily provide the urgent protection the Rohingya so desperately need.

First of all, it is important to understand that the ICC is about personal accountability for crimes, not protection against human rights violations. As a criminal court it provides post-facto justice and there is little to suggest that a UNSC referral would act as a catalyst for sudden government interest in the protection of the Rohingya. As such, a referral may in the end provide victims with some measure of justice, but it will not offer immediate protection. If the goal is accountability for past crimes, the ICC might be the right way to go, but if it is about ending the violence and the persecution against the Rohingya, it is probably not the most efficient way.

Second, clearly for the Rohingya time is of the essence. However, lobbying members of the UNSC would take considerable time. And considering the situation in Syria, which occupied most of the UNSC’s time at the moment, and the international community’s lack of action or even criticism regarding the situation for the Rohingya, such a referral is highly unlikely.

Also, even if a referral is made, the ICC’s own process, investigation to prosecution and judgment, will take years. Given these considerations, it may be better to put lobbying efforts towards convincing the international community to put pressure on the Burmese government, than to go through the drawn-out process of a UNSC referral to the ICC.

I am convinced of the importance of the ICC and a supporter of its work. As a Burma activist I would also welcome a UNSC referral of the situation in Burma, as justice and accountability seem impossible to come by at the national level. I am also deeply convinced that something has to be done, and soon, to solve the Rohingya issue in Burma.

However, I would ask my fellow activists for the Rohingya cause to think about what it is they are trying to achieve with an ICC referral. If their goal is protect the Rohingya and to improve the situation on the ground, it may be better to lobby foreign governments to exert real pressure on their Burmese counterparts to actually take steps to find a solution to the issue. This will of course also take a lot of time and effort, but might not only be faster than the ICC road, but might provide some actual protection.


The ICC is certainly not a cure-all to the violence and persecution faced by the Rohingya in Burma, and should not be expected to alone serve as a solution.

Saturday, November 14, 2015

Quick Reflections on Paris, Beirut, and ISIS

This post is written by Tara Van Ho, who couldn't post it due to internet issues 

I’ve been off the page for a variety of reasons, starting with being knocked off my feet from food poisoning. But, I want to address the terrorist attacks last night in Paris.

I’m not going to recap what we know – the BBC, CNN, and others are better placed for that. But, last night as friends checked in one after the other on Facebook, I couldn’t help but reflect on how differently the situation played out from that which followed the bombings in Beirut this week.

In case you missed the Beirut story – as several of my friends did – on Thursday, IS claimed at least 43 lives in Lebanon’s capital. More than 200 others were injured.

One of the attacks involved a suicide bomber at the gates of a school.

At a mosque, Adel Termos threw himself on a suicide bomber in an attempt to stop the attack.

IS wants these attacks to be a sign of its strength. They are not. If you are blowing yourself up to kill children, concert-goers, people heading to prayer, or others who cannot defend themselves against you, you are a coward and no amount of shouting allegiance to anyone – or to God – changes that.

You are simply a fucking coward.

Unfortunately, those cowards have been able to inflict a lot of carnage, and too frequently that damage occurs in places the Western media isn’t covering. And that is a serious problem.

The problem is not the western-centric nature of the news. I understand why an attack in Paris gets significant coverage.  There are iconic symbols there, and it’s quite a distance from the conflict in Syria. It’s easy to believe the bombings are “more shocking” than what happened in Beirut. 

At least, if you’re not Lebanese or living in Lebanon or with friends in Beirut.

Keep in mind that the last terrorist attack in Paris was more recent than the last terrorist attack in Beirut.

Following Beirut, none of my friends in Lebanon were able to ‘check in’ on Facebook.  There was approximately 1 story per news organization.  And several of my friends didn’t know Lebanon had even happened until after the devastation in Paris.

This is a problem because the failure of Western media to cover attacks like those in Beirut at the same level, with the same focus and concern for the disruption of people’s normal lives, is that it feeds the damning narrative that these attacks stem from Islam or multiculturalism. If the only attacks the media focuses on involve brown-skinned attackers and white victims, it creates a fear of those who look different and reinforces a belief, that all Muslims (or other brown-skinned people) are silent, at fault, or complicit in these attacks, when really most are victims.

But, if we covered attacks like Beirut with the same level of concern as we see Paris being covered now, we would have a clearer picture that the situation is not about Islam or Middle Easterners. It is not Muslim versus European. Rather, it is a matter of the world vs. ISIS.

Since the year 2000, including the 8 identified last night, 41 Muslims have been implicated in terrorist attacks in the EU.  That includes individual stabbings and shootings.  It also includes those identified as providing assistance to the attackers. 

41.  Out of more than 19 million Muslims in the EU.

Google tells me that means less than 0.000002% of the Muslim population in Europe have been implicated in terrorist attacks.

And I realize there are some who have been involved but haven’t been identified.  Consequently, the number doesn’t include those responsible for the Madrid attacks.  But even if you have 5 unidentified people for every 1 we know, you’re looking at less than 250 people since 2000. And that’s still only 0.000013% of the Muslims in Europe.

This is so miniscule because the problem isn’t Islam. And it’s not multiculturalism.

The problem is a limited number of small-minded men who want to feel big about themselves.

If we let their hatred lead us, we will be following a dark and dangerous path, one not worthy of our collective humanity.

Martin Luther King, Jr., said two things that stick with me in times like this: “Hate cannot drive out hate. Only love can do that.”  And “The moral arc of the universe is long but it bends towards justice.” 

I believe that arc bends only because of the people standing on it, pushing it towards something better.

Be one of those people.  Stand on the moral arc.  Fight IS and its idolatry of self (because that’s really what it worships). Don’t fight those who are already victims, like the millions of Muslim refugees who are dying – quite literally – to get away from the Islamic State.
                                                                                                                                                                                                 


Wednesday, October 21, 2015

Gender Stereotypes and Ignored Dimensions of Sexual Violence in Conflict

Several parts of this post come from two previous posts published on the University of Essex Human Rights Centre Blog, entitled ‘What about the Men? – The Silence on Male Victims of Sexual Violence in Conflict’ and ‘Women – the Ignored Perpetrators of Sexual Violence in Conflict ‘.

Sexual violence in conflict has received a lot of attention in the last couple of years. I would say this is mostly thanks to the cases prosecuted at the International Criminal Tribunal for the former Yugoslavia (the ICTY has a very interesting documentary on the subject of its prosecution of sexual violence crimes).

Even at a national level, as has been the case in Kosovo (where I currently live and work), wartime rape is a hot topic.

In June this year, an art installation at the sports stadium in Pristina, Kosovo, made headlines around the world. The installation, entitled ‘Thinking of You’, featured 10,000 women’s dresses, paid tribute to the many female victims of sexual violence during the war in Kosovo in 1998-1999.

In 2014, female politicians and women’s groups in Kosovo petitioned the UN to investigate wartime sexual violence. It is estimated that about 20,000 women were raped or sexually assaulted during the conflict, however there is no reliable statistics on this and some say this number is unrealistic if one compares the war in Kosovo (e.g. the length of the war, its intensity, and the total number of victims) to that of Bosnia.

In 2014, the Kosovo parliament also amended its ‘Law on the Status and the Rights of the Martyrs, Invalids, Veterans, Members of Kosova Liberation Army, Civilian Victims of War and their Families’, to include sexual violence victims. This means that victims of sexual violence victims can have access to reparations. The amended law states that a victim of sexual violence is a ‘person who survived sexual abuse and rape’ during the war. Clearly this is a gender-neutral definition of a victim.

However, the discussion here in Kosovo about sexual violence war victims is only centered around female victims and the groups involved in pushing for these victims’ rights are women’s groups such as UN Women and the Kosova Women’s Network. The 2014 petition in Kosovo only asked that the UN investigate sexual violence against women (and also focused only on ethnically Serb perpetrators), and the ‘Thinking of You’ installation clearly had only female victims in mind (being a display of dresses and all).

The same is true at the international level. In June 2014, the UK Foreign and Commonwealth Office hosted a Global Summit to End Sexual Violence in Conflict, co-chaired by Foreign Secretary William Hague and UN Special Envoy Angelia Jolie. The event brought together Government representatives from over 120 countries, over 1,000 experts, faith leaders, youth organizations and representatives of civil society and international organizations. However, the Summit focused almost exclusively on female victims (Angelina Jolie did mention men as potential victims of sexual violence in conflict in a speech, but the overall tone of the Summit was that this was a conference to end conflict-related sexual violence against women).

Let me be clear: I am not saying that we should not discuss female victims of sexual violence during war. Of course we should! Women are still the majority of victims of sexual violence crimes during conflict.

However, when victims’ advocates and the international community only mention men in passing when talking about sexual violence in conflict, it marginalizes and already marginalized group of victims.

The idea, both internationally and at a national level, thus still seems to be that men are perpetrators of sexual violence and women victims. I would therefore like to speak in this post about two things that challenge that perception – namely male victims of sexual violence in conflict and also female perpetrators.

Male Victims of Sexual Violence in Conflict

Despite the lack of attention from the international community, victims’ organizations and advocates, men and boys have long been targeted for sexual violence in particular and gender-specific ways that deserve the attention of the human rights community.

The issue of sexual violence against men in conflict is severely and chronically under-reported. One explanation is that male victims are often unwilling to come forward, due to shame, guilt and fear. If you thought it was difficult for women in patriarchal societies to speak up about what they have been through, imagine what it is like for men in these societies, where by national law men might not even be able to be raped. In countries where homosexuality is criminalized, survivors are often faced with an assumption that they have engaged in consensual homosexual activity, and can themselves face criminal charges.

Another factor is the reticence of civil society to recognize that male victims even exist. In fact, in 2002 it was reported that out of 4,076 NGOs that focused on conflict-related and politically-motivated sexual violence only 3% mentioned male victims. 25% of these NGOs explicitly denied that male-on-male violence was a serious problem.

The lack of attention paid to the sexual abuse of men in conflict is particularly disturbing given the extent of the problem. In recent years sexual violence against men has been documented in conflicts in Argentina, Chechnya, Chile, the Democratic Republic of Congo (DRC), El Salvador, Greece, Guatemala, Kenya, Liberia, Northern Ireland, Rwanda, Sierra Leone, Sri Lanka, Uganda, the former Yugoslavia, and many other countries.

For example, 21% of Sri Lankan Tamil males said they had experienced sexual abuse while in detention, and a study of 6,000 concentration camp detainees in Sarajevo found that 80% of the males had been raped. A 2010 study in the DRC reported 23.6% of men having been subject to sexual violence, with 64.5% of the sexual violence being conflict-related.

Many activists like to point out that women are subjected to sexual violence in ways specific to their gender, and just because they are women. However, it is important to note that men are also targeted in particular and gender-specific ways, just like women, and that sexual abuse of men during armed conflict frequently touches upon issues of shame and degradation.

Male rape does not only include anal rape by a perpetrator or by a foreign object. Victims may, for example, be forced to perform fellatio on their perpetrator or on another victim. In the case of Prosecutor v. Ranko Češić the defendant admitted forcing at gunpoint two detained Muslim brothers to perform fellatio on each other, in the presence of other people. Male victims may also be forced to rape fellow victims.

Another type of sexual violence suffered by men is that of enforced sterilization, which largely comprises castration and other forms of sexual mutilation. The UN Commission of Experts observed that in the former Yugoslavia [c]astrations are performed through crude means such as, forcing one internee to bite off another's testicles, and tying one end of a wire to the testicles and the other end to a motorcycle, then using the motorcycle to yank off the testicles”. (For a gruesome example of this type of sexual violence in the war in Bosnia, read the judgment in Prosecutor v. Tadić,  (IT-94-1) at para. 206).

Other forms of sexual violence of particular prevalence are genital violence that does not amount to enforced sterilization, such as being hit in the testicles, forced nudity, and enforced masturbation. Sexual abuse of prisoners often begins with forced nudity, accompanied by verbal threats, which adds to the humiliation. In Kosovo, the most common way of sexually humiliating men was to force them to strip naked in public. Forced nudity was also reported in relation to the treatment of prisoners in Abu Ghraib, where male prisoners were also forced to masturbate while being photographed and videotaped.


Despite the grave and widespread nature of sexual violence against men and boys, there is still a lot of reluctance to acknowledge the extent of the problem and to properly address the issue. As I mentioned above, many women’s organizations and NGOs are reluctant to bring up male victims, perhaps out of fear that it will take some of the attention away from female victims, who had to fight so long for recognition.

Furthermore, the international instruments that contain the most comprehensive and meaningful definitions of sexual violence prima facie exclude men, reflecting and embedding the assumption that sexual violence is a phenomenon relevant only to women and girls. ‘Gender-based violence’ is too often associated exclusively with violence against women, and when it is acknowledged that men are also victims of sexual violence it is most often only mentioned in passing.

Female Perpetrators of Sexual Violence

While I have long known about the issue of male victims I discovered the topic of female perpetrators rather recently, while doing research for a presentation on sexual violence in conflict. And I have to admit that, even though I consider myself very open-minded about the issue of sexual violence, I found the idea of women committing sexual violence crimes in a conflict context extremely shocking and disturbing. 

If the issue of male victims of sexual violence in conflict is often sidelined, the issue of female perpetrators is almost completely ignored altogether, both in international discourse about sexual violence in conflict and in academic research.

Nevertheless data shows that women do acts as perpetrators of sexual violence in conflict.

In a study from 2010, 41% of female victims of sexual violence in the DRC, and 10% of male victims, reported they were victimized by female perpetrators. Furthermore, women have reportedly committed acts of sexual violence in conflicts around the world, such as Liberia, Haiti, Sierra Leone, Northern Ireland and Sri Lanka.

Women commit and participate in the commission of sexual violence in a number of ways, including as direct perpetrators. In Sierra Leone, female combatants in the Revolutionary United Front (RUF) located potential victims, and restrained them when they were raped. Women also raped other women with various foreign objects, such as bottles or sticks.

In other instances women may commit sexual violence although as an indirect perpetrator. Rwanda’s former Minister for Family and Women Affairs, Pauline Nyiramasuhuko, is the first, and only, woman convicted by an international tribunal for rape. Up to half a million women were raped during the Rwandan genocide according to the UN, and Nyiramasuhuko ordered women and girls to be raped.

Why is there such resistance to address the issue of women as perpetrators of sexual violence in conflict? What is it about it that makes us so uncomfortable? After all, international law provides a definition of rape and sexual violence where men and women can be both victims and perpetrators. When looking into these questions, it often becomes an issue of presumptions and stereotypes around gender and the nature of 'male' and 'female' behavior. 

The argument is often made that the presence of women in combat units will lower the tendency to abuse non-combatants, particularly non-combatant women. This of course is in line with stereotypical assumptions about gender that makes men into powerful warriors and women into peaceful creatures, or into victims. It reflects the widely held belief that women are nurturing and much less violent than men, even when involved in armed groups, and often assumes female combatants to be cooks, dependents etc., but not fighters. Thus, women are considered very unlikely to commit rape and sexual violence. This perspective has been used to argue for more women in peacekeeping operations, since women would have a ‘civilizing effect’ on their male counterparts.

However, if we look at the reality of the situation these assumptions seems not only extremely archaic in their view on gender and gender roles, but also completely incorrect.

For example, in the conflict in Sierra Leone, rape was endemic with most rapes reportedly committed by the RUF (85.6%), despite the fact that the RUF consisted of 24% female fighters (compared to under 10% for other armed groups). 25% of the gang rapes were committed by mixed male/female groups and women participated in a quarter of the reported gang rapes.

There was also no evidence that either male of female perpetrators felt differently about shame regarding sexual violence crimes. The male perpetrators did not feel shame committing these crimes in front of the female fighters, and the female perpetrators felt that the shame was the victims', just like the male perpetrators did.

There is thus little to suggest that women are by nature less prone to sexual violence than men, or that their presence in armed groups would have a calming effect on the male fighters. In fact, in the conflict in Sierra Leone, women were rumoured to be particularly vicious fighters and had a reputation for encouraging excessive violence. Studies have shown the same in armed groups, such as the IRA in Northern Ireland and the LTTE in Sri Lanka.

Another argument is sometimes made that the presence of women in armed groups diminishes the ‘need’ for the rape of non-combatants. This argument is obviously based on the assumption that rape and sexual violence has to do with sexual gratification. It suggests that groups with more female fighters would be less likely to commit rape, and that perpetrators of sexual violence would be almost all male, regardless of the number of women in the group.

However, as seen above, the RUF consisted of a large number of female fighters, which did not seem to affect the prevalence of rape of female non-combatants, or the gender of the perpetrator. Furthermore, it was common for female fighters in the RUF to be raped when they first joined, and 70% of the reported cases of sexual slavery were committed by the RUF. This indicates that the presence of women does little to diminish the ‘need’ for rape of non-combatants.

This argument, which rests on the assumption about sexual gratification, is also problematic since the likelihood that every male in the armed forces would be sexually satisfied by a willing female participant is highly unlikely. Also, the idea that it's a woman's job to sexually satisfy her colleagues if she's part of the military is perpetrating rape culture. Furthermore, this argument cannot account for the form of sexual violence occurring during conflict, and the persistence of rape with foreign objects. 

Clearly gender stereotypes and preconceived notions about the true nature of men and women make us blind to reality; that women also commit sexual violence crimes.

Research has shown that women can be, and are, perpetrators of sexual violence, just as well as men. Women are subject to similar pressures from within armed groups and, facing similar circumstances, should be expected to commit similar crimes. Furthermore, women clearly commit acts sexual violence in conflict both as direct and indirect perpetrators. It is obviously wrong to take the simplistic view of men as perpetrator and women as victims of men’s violence.

Gendered assumptions about the rules of women as combatants and perpetrators of sexual violence has serious policy consequences and have resulted in these women being largely excluded from various types of post-conflict policy processes that deal with perpetrators of sexual violence.

If we are serious about addressing the issue of sexual violence in conflict we not only need to acknowledge the widespread prevalence of male victims of sexual violence, but also that of female perpetrators of these crimes.