Denying the Irrefutable: Women, Justice and the PoVAW Law
“Civil society has consistently called for addressing the egregious structural gaps in the domestic justice and legal system, without any progress. A law on violence against women [PoVAW Law] that took over seven years to draft, which failed to consult meaningfully with women, particularly from conflict affected communities, and fails to meet Myanmar’s international obligations.”
After years of stagnation, the Myanmar government has put the proposed Protection and Prevention of Violence Against Women Law (PoVAW), originally developed in 2013, back on the government’s legislative agenda and into Parliament for debate. However, the current draft version of the PoVAW fundamentally lacks compliance with international legal norms, including the Convention on the Elimination of Discrimination Against Women and UN Security Council Resolution 1325 on Women, Peace and Security and fails to address impunity for military actors who perpetrate sexual and gender-based violence during conflict.
While the PoVAW Law is being proposed, the Myanmar military continues operations in ethnic areas of Myanmar, where ongoing campaigns of sexual violence against ethnic women and girls are waged with impunity. In a recent case on 30 June, 2020, a woman in Rakhine State filed a rape complaint against three Myanmar military soldiers at Sittwe Township Police Station, accusing the soldiers of repeatedly raping her at gunpoint during a sweep of U Gar village in search of Arakan Army troops. Police have accepted the complaint but the Myanmar military has responded by saying they have conducted their own investigation of the situation and determined the accusations were fabricated with the intent of tarnishing the reputation of the Myanmar military. This case, like the many cases which have preceded it, is emblematic of the Myanmar military’s long history of using rape as a weapon of war and fits their pattern of using sexual and gender-based violence to target ethnic women and girls in their campaigns against other ethnic communities including Karen, Kachin, Shan, Rohingya, and Ta’ang.
These cases have long been denied by the Myanmar military in spite of being documented by local ethnic women’s organizations, international organizations and the UN. The Kachin Women’s Association Thailand (KWAT) jointly with Asia Justice and Rights (AJAR) recently released a report focusing on research gathered on human rights violations committed by the Myanmar military between 2011-2019 in Kachin and northern Shan States, and provide case studies on those seeking justice for these violations. A common denominator among the cases where the military violations remain unresolved, is the undue influence of the military actors in investigations. The joint report shows the military using their influence to shield perpetrators from prosecution by civilian courts or thwarting police investigations through witness intimidation or by other means including violence to silence voices. Crucially, the 2008 Constitution gives the military independent authority to administer their own affairs, including a self-administered military judiciary, thereby vetoing any oversight by the civilian justice system. Prosecutions from military courts are very rare and often have inadequate sentences in relation to the gravity of the offences committed. KWAT and AJAR’s findings include an emphasis on capacity building and increased funding for local civil society groups and community-based organizations to assist victims in accessing justice, psychosocial support, medical care and information about the legal process. As part of this, they have called upon the international community to stop supporting the Myanmar military and NLD-led government, until the NLD-government undertakes political reforms to ensure accountability and the rule of law through full civilian control of the military through constitutional change and a genuine peace progress.
A further obstacle for those seeking justice is the Myanmar government’s unwillingness to call out perpetrators and outright denials of credible evidence of crimes of sexual and gender-based violence, which are most prominently displayed in the Myanmar government’s flawed Independent Commission of Enquiry report into the Myanmar military’s “Clearance Operations” in Rakhine State against the Rohingya. The report unequivocally dismissed instances of rape and sexual violence despite the UN Independent International Fact-Finding Mission on Myanmar, the former Special Rapporteur on the situation of human rights in Myanmar and local and international organizations having collectively brought to light the widespread, persistent and deliberate nature of sexual violence as a tool of warfare by the Myanmar military against ethnic communities and highlighting the failure of domestic mechanisms and remedies to punish perpetrators.
While less frequent and not used as a systematic weapon of warfare, isolated instances have occurred where Ethnic Armed Organizations perpetrate sexual and gender-based violence. Recently, a case surfaced of a young girl from northern Shan State who accused a Restoration Council of Shan State/ Shan State Army (RCSS-SSA) military officer of sexually exploiting and assaulting her. After speaking out about the incident, her and her family have subsequently received threats of reprisal, which shows a lack of protection for victims and witnesses of sexual abuse. Admittedly, fear of repercussions, stigma and shame after sexual violence is a common obstacle in the pursuit of justice for survivors and their families.
The Global Justice Center’s recent review of the proposed PoVAW Law outlines clear flaws in its drafting, including inconsistencies with international law and provisions with the Penal Code and Criminal Code, and contains no provisions providing for the protection of women’s reproductive rights and access to healthcare through victim support mechanisms. Additionally, the drafting process of the PoVAW has not adequately provided for the equal participation of and consultation with women and women’s organizations, particularly from conflict affected ethnic communities in drafting of the law, nor does it envisage ensuring courts and police are educated on the law in a gender-sensitive manner. Echoing these concerns, Khin Ohmar, Founder and Chairperson of the Advisory Board of Progressive Voice, in her address to the UN Security Council Open Debate on Sexual Violence in Conflict on behalf of the NGO Working Group on Women, Peace and Security, stated, “Civil society has consistently called for addressing the egregious structural gaps in the domestic justice and legal system, without any progress. A law on violence against women [PoVAW Law] that took over seven years to draft, which failed to consult meaningfully with women, particularly from conflict affected ethnic communities, and fails to meet Myanmar’s international obligations.”
The current domestic legal framework and the proposed PoVAW law fails to prevent sexual and gender-based violence against women and girls in conflict, nor is there accountability to end the military’s impunity. Parliament must reverse course and consult with ethnic women’s organizations from conflict affected communities to ensure the draft law guarantees protection of women and girls from sexual and gender-based violence during conflict, in line with international standards. The Myanmar government must fulfil its international legal obligations within its domestic legal framework, reform the judiciary, and support community-based and women’s organisations to assist survivors of these crimes.
As Khin Ohmar highlighted in her final remarks of her briefing to the UN Security Council, the Myanmar military’s continued use of rape as a weapon of war against ethnic communities, even as an element of genocide, constitutes a threat to international peace and security. Unless the international community acts now, these crimes will continue and the lives of thousands of survivors of violence by Myanmar military and that of their families are potentially forever changed by long-term disabilities from conflict-related wounds. The international community must put pressure on the Myanmar government to immediately and fully cooperate with the UN and international criminal mechanisms to halt such crimes of sexual and gender-based violence in conflict and to hold the perpetrators of these crimes to account.
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[1] One year following the 1988 pro-democracy uprising, the former military junta changed the country’s name from Burma to Myanmar overnight. Progressive Voice uses the term ‘Myanmar’ in acknowledgement that most people of the country use this term. However, the deception of inclusiveness and the historical process of coercion by the former State Peace and Development Council military regime into usage of ‘Myanmar’ rather than ‘Burma’ without the consent of the people is recognized and not forgotten. Thus, under certain circumstances, ‘Burma’ is used.
Resources from the past week
Statements and Press Releases
By 31 Civil Society Organizations
RE: Call It Genocide – Act for the Rohingya
By 58 Organizations
By ALTSEAN-Burma
Amnesty International Oral Statement at the 44th Session of the UN Human Rights Council
By Amnesty International
By Athan – Freedom of Expression Activist Organization
A Chance to Fix in Time: Analysis of Freedom of Expression in Four Years
By Athan – Freedom of Expression Activist Organization
Myanmar: Continued Crackdown on Civil Society Undermines Efforts to Address COVID-19
By CIVICUS
မြန်မာတပ်မတော်က တလကျော်ကြာအတွင်း ရွာသားတွေရဲ့ နွားအကောင်ရေ(၆၀)ကျော် ပစ်သတ်ပေးခဲ့ရ
By Chin Human Rights Organization
IDPs and Local Communities Raise Concerns of Looting of Livestock by Tatmadaw in Paletwa Township
By Chin Human Rights Organization
Call Myanmar’s Crimes Genocide, Ensure Accountability
By Fortify Rights
Myanmar: Drop Criminal Complaint Against Human Rights Defender Maung Saungkha
By Fortify Rights
By Human Rights Foundation of Monland
Statement by Ms. Khin Ohmar at the UN Security Council Open Debate on Sexual Violence in Conflict
By NGO Working Group on Women, Peace and Security
By Shan Community Groups
Myanmar’s General Elections Must be Free and Fair, UN Expert Urges
By Special Rapporteur on the situation of human rights in Myanmar
Reports
ALTSEAN-BURMA’s “Other Stakeholders” Submission for Myanmar 3rd Cycle Universal Periodic Review
By ALTSEAN-Burma
By Athan – Freedom of Expression Activist Organization
By Human Rights Foundation of Monland
By Kachin Women’s Association – Thailand and Asia Justice and Rights
By Kachin Women’s Association – Thailand and Asia Justice and Rights
The COVID-19 Situation in Myanmar Prisons: Many Grave Risks and a New Opportunity?
By Tea Circle Oxford
Progressive Voice is a participatory, rights-based policy research and advocacy organization that was born out of Burma Partnership. Burma Partnership officially ended its work on October 10, 2016 transitioning to a rights-based policy research and advocacy organization called Progressive Voice. For further information, please see our press release “Burma Partnership Celebrates Continuing Regional Solidarity for Burma and Embraces the Work Ahead for Progressive Voice.”
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