BURMA: License to rape: How Burma's military employs systematic sexualized violence

Last week, a young woman from the Karen ethnic minority in Burma reported being “beaten, drugged, and sexually assaulted by two men wearing army fatigues.” In November 2011, reports emerged that four women were being kept as sex slaves by the Burmese military near the Kachin-China border; forced to cook and clean during the day and gang-raped at night by the soldiers in the Light Infantry Battalion 321. These reports, unfortunately, are not rare.

Such incidents are a part of a pattern of consistent and systematic sexualized violence perpetrated by the Burmese military, particularly against women in Burma's ethnic groups. In a seminal 2002 report, the Shan Human Rights Foundation and the Shan Women's Action Network found that there appears to be “a concerted strategy by the Burmese army troops to rape Shan women as a part of their anti-insurgency activities. The incidents detailed were committed by soldiers from 52 different battalions. Eighty-three percent of the rapes were committed by officers, usually in front of their own troops… .Out of the total 173 documented incidents, in only one case was a perpetrator punished by his commanding officer.”

Rape, has been, and is being used in Burma as a strategic weapon of war.

A woman from the Karen ethnic minority, which has been targeted with rape by the Burmese military as part of its "anti-insurgency activities."

Incidents of sexualized violence have been documented over the years, going at least as far back as 1993, by various human rights groups, including the Women's League of Burma, Women's League of Chinland, Karen Women's Organization, as well as the United Nations. Concerns about sexualized violence in Burma, in particular by the military, have been raised by the UN secretary-general. Special rapporteurs have expressed alarm about human rights violations such as torture and other cruel, inhuman, or degrading treatment or punishment, and violence against women.

However, despite meticulous documentation of cases of rape by Burmese human rights organizations, including in some instances the identities and battalion numbers of some of the rapists, this history of sexualized violence in Burma has been met with total impunity for the perpetrators of these crimes. A 2003 report from Refugees International stated that “widespread rape is committed with impunity, both by the officer and lower ranking soldiers. Officers committed the majority of the rapes documented here in which the rape of the perpetrator was known. The culture of impunity contributes to the military atmosphere in which rape is possible.”

This pervasive impunity has also often been noted by the UN. In 2006, the special rapporteur on the situation of human rights in Myanmar found that “another noteworthy illustration of the consistent and continuing pattern of impunity is the high number of allegations of sexual violence against women and girls committed by members of the military…the Special Rapporteur is not aware of any initiatives by the Government of Myanmar to look into these serious human rights abuses with a view to identifying the perpetrators and bring them to justice.” The 2009 report of the UN secretary-general to the Security Council on Resolution 1820 similarly expressed concern about the high levels of sexualized violence against ethnic minorities including the Rohingya, Shan, Mon, Karen, Palaung, and Chin groups and the impunity accorded to the perpetrators.

Not much has changed in the ensuing years—and, in fact, now impunity for rape by the military is a constitutional guarantee. The 2008 Burmese Constitution places the military outside the purview of the civilian courts and includes an amnesty provision which precludes the prosecution of military perpetrators of crimes, including sexualized violence; raising global concern, including from the special rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana.

Such an amnesty is contrary to international law and the UN explicitly “does not recognize any amnesty for genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.” Moreover, there is a growing body of treaty law expressly requiring criminal prosecutions of certain crimes, which cannot be susceptible to amnesties. Rather, states must 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 1949 (which includes sexualized violence), and the Convention on the Prevention and Punishment of the Crime of Genocide.

Today, sexualized violence perpetrated by the military persists, and continues unpunished in Burma. Despite lip service about reform from the current government, the issue of impunity for these crimes cannot be adequately addressed domestically in Burma due to the constitutional guarantee of impunity.

Recognizing this barrier to combatting impunity domestically, if the new Burmese government is sincerely committed to transitioning to democracy, as they say they are, they should ratify the Rome Statute of the International Criminal Court and grant the court retroactive jurisdiction over crimes in Burma going back to July 1, 2002, the date of the entry into force of the statute. Furthermore, the international community must continue to insist on demonstrated action toward justice and accountability from the Burmese government as a condition of re-engagement. Absent such steps, the international community should act to ensure accountability—including through a referral to the International Criminal Court.

It's time for the Burmese military's license to rape without consequences to be revoked.