International Humanitarian Law And Access to Abortions: Compilation of Citations

Sexual violence in today’s armed conflicts is systematically used against civilians to demoralize, destroy, terrorize, and even change the ethnic compositions of entire communities. For instance, the ongoing Syrian civil war has seen an estimated 50,000 rapes. Women there describe being drugged, blindfolded, and raped in groups. In Iraq, ISIS has systematically abducted girls and women, held them in captivity, and repeatedly subjected them sexual violence including rape and sexual slavery. In Darfur, Sudan, where sexual violence has been used as a tactic of war for over 12 years, a 2015 attack in Tabit included the mass rape of over 200 women and girls in the span of three days. Finally, in Nigeria, Boko Haram openly targets young girls for kidnappings, forced marriage, rape, sexual slavery and other forms of gender-based violence.

Today, thousands of girls and women raped and impregnated in armed conflict are routinely denied abortions with devastating consequences. A girl or woman who is a victim of war rape and is denied an abortion when she wants one often has three options: (1) undergoing an unsafe abortion; (2) carrying to term an unwanted pregnancy; or (3) committing suicide. The denial of abortion services to these victims is both illegal and inhumane. 

In the context of armed conflict, the rights of war victims are protected under international humanitarian law. Specifically, victims of war rape are part of a special class of people called “wounded and sick in armed conflict.” This status means they are entitled to comprehensive and non-discriminatory medical care provided solely on the basis of their condition. Failing to provide – or denying – a medical service needed only by one gender (i.e. abortion) violates these absolute rights.

Abortion as protected medical care under international humanitarian law has increasingly been recognized by states, international policy makers, and legal experts on international humanitarian law. This document complies language and citations of laws, policies, authoritative declarations of public officials, and legal treatises, that affirm abortion as protected medical care for girls and women raped in war under IHL.

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When Terrorists Perpetrate Genocide: Legal Obligations to Respond to Daesh’s Genocide

Daesh is perpetrating genocide of the Yazidi, Christian, and other minorities as acknowledged by US Secretary of State John Kerry, the EU Parliament, Iraq, and others. The 1948 Genocide Convention was passed to protect distinct values central to humanity: the right of protected groups to their continued existence and the right of all people to live in a world enriched by diversity and marked by tolerance. Genocide is defined as acts to destroy national, ethnic, racial or religious groups, as distinct entities.  The joint attacks against Daesh in August 2014 to “avert potential genocide” of the Yazidi saved lives but did not stop Daesh from continuing to perpetrate genocide.

The international legal framework designed to keep the world free from genocide is distinct from that of other international laws and protects distinct values. Strategies to counter terrorism including, to prosecute and deny “safe havens” for terrorists, without more, do not fulfill the nonderogable obligations of states and international entities to stop genocide.

The Genocide Convention’s effectiveness in deterring genocide depends on states fulfilling their obligationsto take “all possible measures” individually and collectively to prevent, suppress, and punish genocide. The failure of states and international organizations to address Daesh genocide crimes undermines the legitimacy of the Genocide Convention and the effectiveness of counter terrorism efforts.

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Amicus Curiae Brief for Appellant - The Republic of Marshall Islands vs. The United States of America in the Ninth Circuit Court of Appeals

This brief of amicus curiaethe Global Justice Center (GJC) is submitted pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 29-2 with the consent of all parties to the case. GJC is a non-governmental organization dedicated to promoting the enforcement of international law in a progressive, non-discriminatory manner. Thus, GJC has a direct and vital interest in the issues before this Court, which will impact the ability of future litigants to vindicate their rights under international treaties. No part of this brief was authored by a party or party’s counsel, nor did any party, party’s counsel, or other person outside of GJC contribute money intended to fund the preparation of this brief. 

The District Court dismissed Plaintiff’s case below both because it found that Plaintiff lacked standing to bring its claims, and because it found the issues in this case to be non-justiciable political questions. Order Granting Mot. to Dismiss at 5-7. This amicusbrief will address the latter of these issues, arguing that the District Court erred in applying the political question doctrine to Plaintiff’s claims. 

In Baker v. Carr, the Supreme Court outlined six factors any of which may justify abstention from a case as a political question. 369 U.S. 186, 217 (1962). The District Court found two of these factors to be implicated by the case at bar: textual commitment to one of the political branches, and a lack of judicially discoverable and manageable standards. Order Granting Mot. to Dismiss at 5-7. This brief will argue that the meaning of Article VI of the Nuclear Non-Proliferation Treaty (NPT), and the question of whether or not the United States (U.S.) is in compliance with it are not political questions, and in particular, that the District Court was wrong to hold that no judicially manageable standards are available to guide its analysis of these questions. This brief will identify a rich array of judicial and non-judicial sources that could inform the court’s development of new standards. This brief will also contest the outdated and overbroad statement of Executive authority over foreign affairs that led the District Court to find that resolution of this issue was textually committed to the Executive. 

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Executive Summary: The International Legal Framework of Peace Negotiations: Requirements and Recommendations for Enforcing Women’s Rights

Peace negotiations regularly exclude women participants and neglect to sufficiently address issues pertaining to women and girls. These omissions violate international law, including the Security Council Resolutions on women, peace, and security, which require that peace negotiations involve equal participation by women and ensure women’s rights. Getting women to the table is a critical first step, but it can only be the starting point to meaningful women’s participation in peace negotiations. Women must not only be present but also be equipped with knowledge of the international legal framework that governs how peace negotiations ensure the rights of women and girls. Their fellow negotiators must likewise be made aware of this body of binding international law, so that they are more likely to cooperate to advance, rather than obstruct, equal rights for women and girls. The Global Justice Center has developed a compilation of relevant provisions from international legal instruments that govern which rights must be ensured in the course of peace negotiations. While the compilation is not an exhaustive list of all relevant provisions, it provides a representative sample of important gender equality requirements. Following is a table identifying these provisions.

While some of these instruments are legally binding, either on all parties due to their incorporation into customary international law or on certain parties that have agreed to be bound, others are persuasive in that they represent the growing consensus of States.

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Security Council Resolutions on Women, Peace and Security in Practice: The Failed Case of Burma

In 2000, the United Nations (UN) Security Council passed a historic resolution as its clarion call for ending sexual violence in conflict. This Resolution, SCR 1325, as well as the succeeding Resolutions, that together form the Women, Peace and Security (WPS) Resolutions recognized the gender-specific impact of conflict and historic gender discrimination in criminal accountability for sexual violence in conflict, and underscored the need for women to participate in post conflict reconstruction. The Global Summit to End Sexual Violence (the Summit) has been convened to create a “sense of irreversible movement to end the use of rape and sexual violence in conflict” and, therefore, is a time to assess how the WPS Resolutions have translated into protections for women during conflict.

Using the current conflict situation in Burma as a test of the WPS Resolutions demonstrates how ineffective they have been in providing protection and remedy for women on the ground during conflict. Despite the mandates of the WPS Resolutions, credible evidence continues to indicate that the military uses sexual violence against ethnic women in Burma as a means to assert its authority and to destroy ethnic communities. The military continues to operate with Constitutionally-sanctioned impunity for its actions. Moreover, current peace negotiations, intended to end decades of ethnic conflict, have almost completely failed to include women, especially ethnic women.

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The United Kingdom’s Duty under International Humanitarian Law to Ensure Non-Discriminatory Medical Care to Women and Girls Raped in Armed Conflict, including Access to Safe Abortion Services

Excerpts of UK, EU and International Laws, Policies & Practices Relevant to this Duty

Updated as of October 8, 2013

The duty of the United Kingdom ("UK") to respect international law, and in particular international humanitarian law, is firmly rooted in its body of domestic law which implements the Geneva Conventions and its Additional Protocols, and is further supplemented by the laws, regulations, and guidelines of the European Union.
For women raped in armed conflict, abortion is a legal right under international humanitarian law ("IHL"). Girls and women raped in armed conflict are "protected persons" under the Geneva Conventions and are entitled, as the ―wounded and sick, to "receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition." This care must also be non-discriminatory. To deny a medical service to pregnant women (abortion), while offering everything needed for victims who are male or who aren't pregnant, is a violation of this requirement of non-discrimination. Therefore, IHL imposes an absolute and affirmative duty to provide the option of abortion to rape victims in humanitarian aid settings; failing to do so violates the Geneva Conventions, its Additional Protocols, and customary international law.

These protections are further supported by international human rights law. The Committee against Torture and the Human Rights Committee have both declared the denial of abortion to be torture or cruel, inhuman, and degrading treatment in certain situations. Furthermore, under these treaties, which apply concurrently with humanitarian law during armed conflict, State Parties are required to provide the highest standard of rehabilitative care for torture victims, which includes the provision of complete medical services for injuries resulting from torture. In the case of impregnated female rape victims, such care must include the option of abortion.

This compendium contains excerpts from British legislation, policy, and practice which underscore the UK's commitments to ensure that its humanitarian aid to girls and women raped in armed conflict affords them their full and inalienable rights to medical care under IHL. This requires: (1) access to a complete range of health and life-saving treatments including abortion, and (2) compliance with the tenet of non-discriminatory humanitarian aid for girls and women raped in armed conflict.

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Compendium: The Obligation of the United Kingdom to Protect the Inalienable Rights of Girls and Women Raped in Armed Conflict to Non-Discriminatory Medical Care Including Access to Abortion: Excerpts of Relevant UK Laws, Policies, & Practices

The duty of the United Kingdom (UK) to respect international law, and in particular international humanitarian law, is firmly rooted in its body of domestic law which implements the Geneva Conventions and its Additional Protocols, and is further supplemented by the laws, regulations, and guidelines of the European Union.

For women raped in armed conflict, abortion is a legal right under international humanitarian law (IHL). Girls and women raped in armed conflict are “protected persons” under the Geneva Conventions and are entitled, as the “wounded and sick,” to “receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.” This care must also be non-discriminatory. To deny a medical service to pregnant women (abortion), while offering everything needed for victims who are male or who aren’t pregnant, is a violation of this requirement of non-discrimination. Therefore, IHL imposes an absolute and affirmative duty to provide the option of abortion to rape victims in humanitarian aid settings; failing to do so violates the Geneva Conventions, its Additional Protocols, and customary international law.

These protections are further supported by international human rights law. The Committee against Torture and the Human Rights Committee have both declared the denial of abortion to be torture or cruel, inhuman, and degrading treatment in certain situations. Furthermore, under these treaties, which apply concurrently with humanitarian law during armed conflict, State Parties are required to provide the highest standard of rehabilitative care for torture victims, which includes the provision of complete medical services for injuries resulting from torture. In the case of impregnated female rape victims, such care must include the option of abortion.

This compendium contains excerpts from British legislation, policy, and practice which underscore the UK’s commitments to ensure that its humanitarian aid to girls and women raped in armed conflict affords them their full and inalienable rights to medical care under IHL. This requires: (1) access to a complete range of health and life-saving treatments including abortion, and (2) compliance with the tenet of non-discriminatory humanitarian aid for girls and women raped in armed conflict.

The UK is a global leader in providing humanitarian aid and assistance to the victims of armed conflict. The UK should continue to endeavour to comply fully and faithfully with the rights and protections these victims are accorded under IHL.

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Definition of Sovereignty

November 2012

The very definition of “sovereignty” or of a “sovereign” state like the Union of the Republic of Myanmar, assumes that the state has complete legal authority over the military and over constitution amendment processes

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Myanmar/Burma’s Binding Obligations Under International Law

November, 2012

This document outlines some of Myanmar/Burma’s (hereinafter “Burma”) obligations under international law, and demonstrates the ramifications of these obligations. Burma’s obligations under international law have greatly increased due to the advances in international law and the enforcement of states obligations over the last fifteen years.

International law mandates that states either act or refrain from acting in certain ways, and provides remedies for state breaches. The framework of Burma’s obligations arise from four interrelated bodies of international law: international human rights and other treaty law, including the United Nations (UN) Charter; customary international law, including the laws of state responsibility; international humanitarian law; and international criminal law.

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UN Security Council Resolutions on Women, Peace and Security: A Chart Detailing State Mandates to End Crimes of Sexual Violence in Armed Conflict, Ensure Accountability and Promote Gender Parity in Conflict and Post-Conflict Situations

The following chart details the legally-binding mandates of the UN Security Council Resolutions on Women, Peace and Security 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010) – emphasizing the need for greater protection of women‟s rights and the inclusion of women in global governance and peace processes. The chart delineates the duties and obligations for action by 1) the UN Secretary-General, and 2) Myanmar/Burma [hereinafter Burma], as both a UN member state and a party to armed conflict.

Despite their application to Burma, the Resolutions have not brought any real and concrete change for girls and women on the ground. The inability of UN representatives to reach conflict areas in Burma severely obstructs the reporting mechanisms of SCR 1960. Additionally, since the Constitution of Burma gives complete amnesty for any and all crimes committed by the ruling military regime, the Burmese government precludes any meaningful accountability and justice mechanism for the women victims of sexual violence and enshrines further impunity for perpetrators.

The Global Justice Center is a New York based Human Rights Organization with consultative status to the United Nations working with judges, parliamentarians and civil society leaders on the strategic and timely enforcement of international equality guarantees. The Global Justice Center has been at the forefront of human rights advocacy in Burma by working closely with groups on the ground to implement international women‟s rights through the rule of law.

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The 2008 Constitution Breaches Myanmar/Burma’s Binding Obligations under International Law Including the United Nation’s Charter

The 2008 Constitution Establishes a Civilian Government Without Full Sovereign Powers

Under the 1947 Constitution, in place when Burma applied for United Nation (UN) membership in 1948, Burma was a sovereign state. The Union of the Republic of Myanmar, as established under the 2008 Constitution (the “Constitution”), is not a sovereign state as defined by international law. A “sovereign” state must have supreme power to make laws that are applicable to all institutions and citizens of the state “without accountability” to any other body. To be considered a sovereign state, the civilian government must have “paramount control of the constitution and frame of government and its administration” as well as be the person or body of persons which has no political superior.

The Constitution is unlike any in the world in that it grants the Defense Forces complete autonomy and supremacy over the civilian government.No branch of the “sovereign” state (consisting of the legislative, executive and judicial branches) may exercise oversight over the military. The Constitution reserves 25% of Parliamentary seats for the military and Constitutional amendments require more than 75% majority for passage. This essentially reserves a veto over Constitutional amendments for the military. The civilian government under these limitations does not have full sovereign powers as defined by international law.

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