Domestic Criminal Laws that Conflict with International Law Burma's Abortion and Rape Laws: a Case Study November 2012 Introduction International law provides a model to improve often outdated domestic laws. Burma is party to many treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Genocide Convention and the Geneva Conventions. International law requires states to comply with their treaty obligations in “good faith” regardless of whether domestic laws conflict with the treaty. These obligations often include requirements that states modify their domestic laws to ensure compliance with international human rights and humanitarian standards and obligations. For example, the Genocide and Geneva Conventions, ratified by Burma, both require as a part of their fundamental mandates that states pass domestic laws to comply with their treaty obligations. Burma currently has no domestic laws implementing any of its human rights treaty obligations, with the possible exception of its laws against human trafficking. This document examines Burma’s domestic criminal laws addressing abortion and rape and compares them with the international law standards binding on Burma. These case studies are examples of how international law can be used to reform of Burma’s domestic law to comport with international human rights and humanitarian standards. The Crime of Rape: Burma’s Domestic Law Compared with International Law Burma’s current rape law was codified in its 1860 penal code.1 It violates international standards and laws in several ways: (1) it is not gender-neutral; (2) it denies women equality under law; and (3) fails to ensure rape victims full rights to accountability and reparations. The inadequacy of Burma’s rape law leaves a considerable number of rape victims without legal recourse and reparations. Burma’s Domestic Rape Law Violates International Standards Table 1. Burma’s domestic rape law versus the Rome Statute of the International Criminal Court definition of rape Burma Penal Code Rome Statute – Elements of Crimes A man is said to commit “rape” who, except in the case 1. The perpetrator invaded the body hereinafter excepted, has sexual intercourse with a of a person by conduct resulting in woman under circumstances falling under any of the penetration, however slight, of five following descriptions :-- any part of the body of the victim or of the perpetrator with a sexual First.—Against her will. organ, or of the anal or genital opening of the victim with any Second.—Without her consent. object or any other part of the body. Thirdly.—With her consent, when her consent has been 2. The invasion was committed by obtained by putting her in fear of death or of hurt. force, or by threat of force or Fourthly.—With her consent, when the man knows that coercion, such as that caused by fear he is not her husband, and that her consent is given of violence, duress, detention, because she believes that he is another man to whom she psychological oppression or abuse of is or believes herself to be lawfully married. power, against such person or another person, or by taking Fifthly.—Penetration is sufficient enough to advantage of a coercive constitute the sexual intercourse necessary to the environment, or the invasion was offence or rape. committed against a person incapable of giving genuine consent. Explanation.—Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape. First, under Burma’s penal code, the crime of rape can only be committed by a man against a woman. In contrast, the explanation accompanying the Rome Statute of the International Criminal Court (“International Criminal Court Statute”),2 which provides a comprehensive definition of rape3: it is “gender-neutral” and utilizes the gender-neutral term “perpetrator,”4 instead of “a man.” Therefore, under international law, rape can be committed by a man against a woman, by a woman against a man, or a woman against a woman (command responsibility in a war context, for example). Second, under Burma’s penal code, the crime of rape is limited to sexual intercourse between a man and a woman, with penetration “being sufficient to constitute the sexual intercourse.” Because no definition of “sexual intercourse” is given, the traditional definition of sexual intercourse - penetration by the penis of the vagina - applies.5 In contrast, under the definition in the International Criminal Court Statute, rape includes a broad range of sexual acts. This includes, for example, penetration of any part of the body, such as the ears, mouth or anus by a sexual organ, such as a penis or penetration by a foreign object, such as a knife or stick, in the anal or vaginal opening. By utilizing a “Rape is used in my country as a broad range of acts that can be prosecuted under the rape weapon against those who only want to statute, the definition under international law offers the live in peace, who only want to assert potential to fully address the crime, including rape with body their basic human rights, especially in parts other than a penis or foreign objects. the areas of the ethnic nationalities. Third, under Burma’s penal code, the female victim is Rape is rife. It is used as a weapon by forced to prove that she did not consent to the rape. While the armed forces to intimidate the such laws are common, they are contrary to international ethnic nationalities and to divide our standards. Under international standards, the element of country.” “consent” is flexible and takes into account “contexts of - Daw Aung San Suu Kyi, May 2011 power and culture that affect a woman’s ability to express or otherwise assert her will, as well as the inherent inequality in male-female dynamics that can render the issue of consent almost meaningless.”6 For example, during armed conflict or other coercive situations, a woman is presumed not to have consented. The International Criminal Court Statute definition (1) eliminates the requirement of consent, and (2) provides explicitly for coercive environments.7 (For a discussion of the impact of the consent requirement when prosecuting rape as an international crime, see section infra “Burma’s Domestic Definition of Rape as Applied to Armed Conflict.”) Fourth, Burma’s penal code explicitly exempts marital rape from the definition of the crime of rape. The failure to criminalize marital rape is contrary to Burma’s obligations under international law, including under the Convention on the Elimination of Discrimination against Women (CEDAW). In fact, the CEDAW Committee, which monitors compliance with the treaty, has specifically recommended that Burma take steps to “ensure that marital rape constitutes a criminal offense.”8 Burma’s failure to make marital rape a crime violates Burma’s binding obligations under the Convention. Burma’s Domestic Definition of Rape as Applied to Armed Conflict Since the early 1990s, UN bodies and numerous human rights groups have documented systematic sexualized violence perpetrated by the Burmese military, particularly against women in Burma’s ethnic groups. While the discussion above addressed rape in a domestic context, it is also important to consider the impact of Burma’s domestic rape law with respect to conflict-related rape. Rape in conflict violates international humanitarian law; it can be a war crime, a crime against humanity and/or an act of torture. Accordingly, under international humanitarian law, states have absolute duties to prosecute, extradite, or surrender for the purpose of prosecution, those individuals present in their territory who are accused of violations constituting “grave breaches” of the four Geneva Conventions of 1949, which includes rape. States must also prosecute, extradite or surrender those accused of violating the Convention on the Prevention and Punishment of the Crime of Genocide, under which rape can be a constitutive act of genocide. Furthermore, Security Council Resolutions 1325, 1820, and 1960 enhance the duty of all UN member states to ensure accountability for conflict-related sexual violence, including rape.9 Information, including As an integral part of the obligation to prosecute under international that noted by the United law, states must enact legislation that allows for the effective prosecution Nations, points to of these crimes.10 In this context, both the Burma penal code provision widespread perpetration of on rape and the provision of the Myanmar Defense Service Act that rape by Government armed relates to rape are relevant. The Defense Service Act provides, in forces (Tatmadaw Kyi) in pertinent part, “[a]ny person subject to this law who commits an offence militarized ethnic border . of rape in relation to [any person not subject to military law] shall areas. not be deemed to be guilty of an offence against this act and shall not be - Report of the UN Secretary tried by a court-martial unless he commits any of the said offences . General on conflict related while in active service.”11 sexual violence, Jan. 2012 While this law creates a mode of liability for perpetrators of rape in conflict by armed forces in Burma, it is also severely limited. Because the Defense Service Act does not include a definition of rape, the definition in the domestic penal code controls. The inadequacy of the domestic penal code definition of rape is exacerbated in the context of armed conflict. In particular, while the non-consent provision is problematic under domestic law (see discussion supra), it poses special problems within the context of the prosecution of rape as a war crime, crime against humanity, or constitutive act of genocide. First, within the context of conflict, nearly all acts of rape will have been “committed under (threat of force), coercion or coercive circumstances, and the issue of consent becomes redundant.”12 Second, consent is not an element of any other international crimes “inflicting bodily or mental harm .