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Human Rights Now Human Rights Now 7F Creative One Akihabara Bldg. 5-3-4 Ueno Taito-ku,Tokyo, JAPAN 110-0005 http://hrn.or.jp/eng/ Phone: +81-3-3835-2110 Fax: +81-3-3834-1025 Email [email protected] October 27, 2016 Myanmar’s Human Rights and Humanitarian Violations in Kachin State and its Duty to Investigate, Prosecute, and Provide Victims with Remedies 1. Conflict and Human Rights Violations in Kachin State Kachin state, Myanmar (Burma), is currently involved in a civil war between the Myanmar military (Tatmadaw) and Kachin Indendence Army (KIA), in which serious human rights violations are occurring, predominantly by the Tatmadaw against civilians of Kachin and north Shan states. The Kachin conflict originally began in 1962, but a ceasefire held from 1994 until it was broken in 2011.1 Since then, the Tatmadaw has conducted major military operations in Kachin state, and sometimes northern Shan state, which continues to the present. Since the second Kachin conflict began, thousands have been killed, over 100,000 civilians have been displaced, and there have been widespread and illegal use of systematic rape, extrajudicial killings, torture, forced labor, land takings, landmines, child soldiers, and other human rights violations as described below. While violations have been alleged from both the KIA and Tatmadaw forces,2 Tatmadaw alleged violations are significantly more serious and widespread. From August 31 to September 3, Myanmar held a major peace conference with many ethnic armies. 3 However KIA representatives did not sign any peace agreement, explaining that more discussion is needed before they will sign a deal.4 While the conferences are planned to continue every six 1 The Irrawaddy, “A Chronology of the Kachin Conflict”, 20 Nov. 2014, http://www.irrawaddy.com/multimedia- burma/chronology-kachin-conflict.html. 2 The most major reported IHRL and IHL issues with the KIA are the recruitment of child soldiers, https://childrenandarmedconflict.un.org/countries-caac/myanmar/, also practiced by the Tatmadaw and prohibited by Art 1 of the CRC Op Prot on the Involvement of Children in Armed Conflict, and use of landmines which indiscriminately harm civilians, restricted by the customary IHL rule that “particular care must be taken to minimize [landmines’] indiscriminate effects”, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule81. (Cf. a Tatmadaw representative’s admission in September 2016 of continuing landmine production and use. http://burmamineban.demilitarization.net/?p=706) There were no reports of use of torture by the KIA. 3 AFP, “Myanmar peace summit ends with long road ahead”, 3 Sept 2016, http://www.channelnewsasia.com/news/asiapacific/myanmar-peace-summit-ends-with-long-road- ahead/3097582.html. 4 Id. 1 months until agreement is reached, the Kachin conflict is continuing and can be expected to continue for some time.5 2. Human Rights and Humanitarian Violations in Kachin State This section describes violations by the Myanmar military against Kachin civilians in the conflict under international human rights law (IHRL)6 and international humanitarian law (IHL)7 followed by Myanmar’s duties under both IHL and IHRL to investigate violations, prosecute alleged violators, and to provide effective remedies to victims. A. Rape and Sexual Violence The Women’s League of Burma has documented more than 100 rapes of women and girls largely in Kachin state in 2014, where rape is used as a weapon by the Tatmadaw.8 Some women are also coerced into “sexual slavery” by the Tatmadaw to be kept with a unit for soldiers’ use.9 UN Secretary General Ban Ki-moon, in the March 2015 report “Conflict-Related Sexual Violence” to the UN Security Council, called on the government of Myanmar to “fully investigate and respond 5 Fighting is still being reported as of 10 Oct. 2016. http://karennews.org/2016/10/burma-army-uses-jets-against- kachin-and-wounded-kia-soldiers-claim-government-forces-using-chemicals-in-attacks.html/ 6 Myanmar is a member of the following IHRL conventions (http://tbinternet.ohchr.org/_layouts/ TreatyBodyExternal/Treaty.aspx?CountryID=119&Lang=EN), Convention on the Rights of the Child Optional Protocol on Child Soldiers (CRC Op. Prot. 2, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx), and subject to customary duties articulated by the Universal Declaration of Human Rights (UDHR, http://www.un.org/en/universal-declaration-human-rights/) and principles articulated by expert bodies such as the Office of the High Commission of Human Rights (OHCHR). 7 Myanmar is a member of the Geneva Conventions (https://www.icrc.org/eng/assets/files/publications/icrc-002- 0173.pdf) and subject to customary IHL, articulated by the International Commission of the Red Cross’s (ICRC) Database of Customary IHL (Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/Home), which among other things extends Geneva Convention duties to non-international conflicts like the Kachin internal conflict. Thus, the Myanmar military is subject to the customary IHL versions of the Geneva Convention duties listed in this report for its conduct in the Kachin internal conflict. 8 Katya Cengel, “Rape is a Weapon in Burma’s Kachin State, but the Women of Kachin are Fighting Back”, Time, 11 Feb 2014, http://time.com/6429/burma-rape-in-kachin/.David Brunnstrom, “Myanmar still using rape as a weapon of war: women’s group”, Reuters, 14 Jan 2014, http://www.reuters.com/article/us-myanmar-military-rape- idUSBREA0D1I020140114. 9 Kachin Women’s Association Thailand, “The Burmese Army Must Immediately Release Four Women Held as Sex Slaves Near Kachin-China Border,” 4 Nov 2011, http://www.kachinwomen.com/advocacy/press-release/37- press-release/88-urgent-appeal-from-kwat.html. 2 to current and historical human rights violations and abuses, including crimes of sexual violence.”10 However, no effective action has been taken. Rape and sexual violence is an IHL war crime via Geneva Convention Common Article 3(a), (c), and a crime against humanity to the extent it systematically targets Kachin women.11 For IHRL, rape and sexual violence are violations of UDHR Article 5 right to freedom from inhuman or degrading treatment. Under CEDAW, Myanmar also has a duty to implement measures to end the practice of rape and sexual violence against women.12 B. Extrajudicial Killings Extrajudicial killings of civilians by Myanmar soldiers, who have not been prosecuted, has been a common occurrence in the Kachin conflict, including the killing of a first-year computer university student Gum Seng Aung, shot by soldiers in Myitkyina, Kachin State in June of 2016;13 the gangrape and murder case of two Kachin volunteer teachers in Kaung Khra, Shan State in 2014;14 and the shooting death of 14-year-old student Ja Seng Ing by a group of soldiers in Hpakant, Kachin State, as well as the prosecution of her father for complaining about the incident to Myanmar’s human rights commission. 15 The military provides unconvincing explanations to excuse such killings and almost never punishes soldiers for the killings, which prevents justice and fails to deter further killings as soldiers act with impunity.16 Extrajudicial killings of civilians are a clear war crime under IHL under Geneva Convention Common Article 3(a) and (d),17 and in IHRL under UDHR Article 3 right to life. 10 UNSC, “Conflict-related sexual violence”, S/2015/203, 23 Mar. 2015, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3- CF6E4FF96FF9%7D/s_2015_203.pdf. 11 Geneva Conventions, Common Art. 3, https://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf. ICRC, CIHL Database, “Rule 93. Rape and Other forms of Sexual Violence”, https://ihl- databases.icrc.org/customary-ihl/eng/print/v1_rul_rule93. Rape and Sexual violence as a crime against humanity are discussed in the ICRC Casebook chapters on Crimes and Sexual Violence: https://casebook.icrc.org/casebook/doc/book-chapter/criminal-repression-book-chapter.htm#i_d, https://casebook.icrc.org/casebook/doc/case-study/women-and-sexual-violence.htm. 12 CEDAW, supra n. 6, Article 2, 3. Violence, including sexual violence, is discrimination under CEDAW via CEDAW General Recommendation 19, http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm. 13 Wa Lone, “Student killed by soldier in Kachin State”, Myanmar Times, 22 June 2016, http://www.mmtimes.com/index.php/national-news/20973-student-killed-by-soldier-in-kachin-state.html. 14 Nyein Nyein, Lawi Weng, “2 Kachin Teachers Found Dead in Shan State”, The Irrawaddy, 20 Jan 2015, http://www.irrawaddy.com/burma/2-kachin-teachers-found-dead-shan-state.html. 15 Todd Pitman, Esther Htusan, “No justice for Myanmar father accusing army of killing child”, AP, 2 Nov 2015, http://www.salon.com/2015/11/03/no_justice_for_myanmar_father_accusing_army_of_killing_child/. 16 Only one case can be found of the Tatmadaw ever admitting and prosecuting soldiers for murder for reasons of political calculation, the exception that proves the rule of impunity. Wa Lone, “In rare move, Myanmar military admits soldiers killed five villagers”, Reuters, 20 Jul 2016, http://www.reuters.com/article/us-myanmar-military- massacre-idUSKCN10016W. 17 Geneva Convention, Common Art 3. ICRC, CIHL Database, “Rule 89. Violence to Life”,
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