In a statement attempting to justify their actions, the Bar Association of Kathua, the district where Asifa was abducted in January, said they wanted a federal investigation because the state government had failed to “understand the sentiments of the people.”
The police eventually managed to file charges after calling for backup.
It is extraordinary that there can be differences over “sentiment” around the gang-rape and killing of a child. But the lawyers, along with a group called the Hindu Ekta Manch, which is affiliated with India’s ruling Hindu nationalist Bharatiya Janata Party (BJP), has – instead of condemning the heinous crime – been protesting the arrest of alleged Hindu assailants, including four policemen and a retired government official.
The Indian government has in recent years adopted significant legal reforms for sexual violence cases. But major gaps remain in implementation. Human Rights Watch has found that local authorities often try and protect powerful perpetrators, pressing victims to withdraw complaints. Even so, it is shocking that the lawyers in Kathua so blatantly tried to obstruct justice in this case.
The BJP and its supporters have often spoken out strongly against sexual violence, even criticizing human rights groups who oppose the death penalty for convicted rapists. After the fatal gang rape of Jyoti Singh Pandey in 2012, where one perpetrator was a juvenile, the government ignored child rights activists and amended the law to prosecute as adults anyone over age 16 accused of heinous crimes like rape and murder.
Yet too many BJP supporters seem willing to abandon their tough stand on sexual violence on the basis of religious prejudice. The police allege Asifa’s rape and murder was part of an effort to drive the Muslim community away from the area. Yet, for the local lawyers and other BJP supporters, the Hindu suspects and the Muslim victim were grounds for blocking prosecution of the case.
The BJP has often been accused of failing to protect religious minorities against attacks by its vigilante supporters. BJP leaders can start to put to rest those claims by publicly condemning any attempts to block justice for Asifa and encourage the Jammu and Kashmir government to enact and implement the Protection of Children Against Sexual Offences Act.
The United Nations secretary-general for the first time has included Myanmar’s military, or Tatmadaw, in his annual list of parties that have committed sexual violence in armed conflict. Presented today to the UN Security Council, the report details conflict-related sexual violence carried out in 2017 by national armed forces and non-state armed groups in 19 countries, spotlighting its use as a weapon of war and persecution.
The report finds that the Myanmar armed forces’ “widespread threat and use of sexual violence was integral to their strategy, humiliating, terrorizing and collectively punishing the Rohingya community.” Rohingya women and girls – “seen as custodians and propagators of ethnic identity” – were targeted for both their ethnicity and their gender. Human Rights Watch similarly found that the military engaged in widespread sexual violence against women among the crimes against humanity committed during “clearance operations” starting in October 2016 and August 2017. Security forces used rape to humiliate and brutalize, not only driving victims from their homes but also instilling a deep fear of ever returning.
The Rohingya women and girls who fled to neighboring Bangladesh – 60 percent of more than 680,000 Rohingya refugees since August – face severe challenges, including inadequate access to sexual and reproductive health care, long-term psychological trauma, and the risk of trafficking and sexual exploitation.
Myanmar’s military has long been implicated in the country’s ongoing ethnic armed conflicts, and the secretary-general’s report notes that security force abuses against women and girls have also taken place in recent fighting in Kachin and Shan States.
The military denies such abuses and has taken no apparent action to end them. A Rakhine State minister responded to reports last year saying: “Look at those women who are making these claims – would anyone want to rape them?”
Pramila Patten, the UN special representative on sexual violence in conflict, met Myanmar’s de facto leader Aung San Suu Kyi and military officials in December to secure commitments to address conflict-related sexual violence. But the government has repeatedly refused to engage.
The Security Council also heard today from Razia Sultana, a Rohingya lawyer and advocate who appealed to the council to refer the full range of atrocities in Myanmar to the International Criminal Court. It’s now up to the council to take action on the military’s egregious crimes and heed her call.
Burmese security forces have committed widespread rape against women and girls as part of a campaign of ethnic cleansing against Rohingya Muslims in Burma’s Rakhine State.
(New York) –Yemeni government officials have tortured, raped, and executed migrants and asylum seekers from the Horn of Africa in a detention center in the southern port city of Aden, Human Rights Watch said today. The authorities have denied asylum seekers an opportunity to seek refugee protection and deported migrants en masse to dangerous conditions at sea.
Former detainees told Human Rights Watch that guards beat them with steel bars and sticks, whipped them, kicked and punched them, threatened to kill or deport them, sexually assaulted them, and fatally shot at least two men. Male guards forced women to take off their abayas (full-length robes) and headscarves. They took migrants’ money, personal belongings, and documents provided by the United Nations refugee agency.
“Guards at the migrant detention center in Aden have brutally beaten men, raped women and boys, and sent hundreds out to sea in overloaded boats,” said Bill Frelick, refugee rights director at Human Rights Watch. “The crisis in Yemen provides zero justification for this cruelty and brutality, and the Yemeni government should put a stop to it and hold those responsible to account.”
Human Rights Watch interviewed eight migrants, including seven ethnic Oromo from Ethiopia who had recently been held at the center, as well as Yemeni government officials and members of migrant communities.
The migrant detention center, in Aden’s Buraika neighborhood, is a converted marine science research center. Since early 2017, it has held several hundred Ethiopian, Somali, and Eritrean migrants, asylum seekers, and refugees, though as of April 2018, only about 90, primarily Eritrean, migrants remained.
Past videos and photos of the detention facility show hundreds of men and boys in a crowded concrete hangar, with women and girls sitting on a stone floor. Former detainees reported that the facility was overcrowded, with dire sanitation conditions and little access to medical care. The provision of food was inconsistent, and guards would occasionally withhold food.
Former detainees said guards sexually assaulted women, girls, and boys regularly. Boys would be taken at night: “Every night, they would take one, to rape them,” a former detainee said. “Not all of them. The small ones. The little ones. I know seven boys who were sexually assaulted… You could hear what was happening.” Several former detainees said the boys would come back unable to sit, sometimes crying, and occasionally telling the others what had happened. An Ethiopian woman who had been held at the facility said she still suffered pain after a guard beat her severely for refusing to have sex with him. She said women and girls were regularly raped and saw guards rape two of her friends.
Yemeni officials have not given asylum seekers an opportunity to seek protection or otherwise challenge their deportation, former detainees said. The former head of the center told VICE News Tonight on HBO that he used smugglers to return migrants to Djibouti, claiming he deported between 500 to 700 migrants a month this way: “And all the trips that we did are by the ministry’s instructions. No, [the interior minister] doesn’t ask us to contact the smuggler, but we return them in the same way they came in… They smuggled them in, they should smuggle them out.”
An Ethiopian man told Human Rights Watch the guards would take 10 people outside and have them write their names and why they left their country. He said, “If any one of them say ‘persecution,’ they tell them, ‘Be quiet, you are lying’ and then register them as migrants looking for job opportunities.” After this questioning, the man saw guards take about 150 people away from the center, including eight children he knew had been raped. The guards said they were taking them across the Red Sea to Djibouti.
The Yemeni authorities have prevented international humanitarian organizations that have visited the center from examining migrants with serious injuries, former detainees said. Guards remained near visiting aid workers, making it impossible for detainees to safely report on conditions.
Yemen’s Interior Ministry, in response to the Human Rights Watch preliminary findings, wrote in a April 2 letter that they had removed the center’s commander and begun procedures to transfer the migrants to another location, and promised to investigate complaints or evidence of abuse. Two detainees said that after the commander’s removal, some of the worst abuses had stopped.
The authorities have continued to send large groups of migrants out to sea without allowing them to seek protection or otherwise challenge their deportation, Human Rights Watch said.
In early April, the center’s new authorities put the remaining Ethiopians – about 200 people – on trucks and transported them to Bab al-Mandab, on the coast about 150 kilometers from Aden, two witnesses said. Guards sent one boat of about 100 Ethiopians out to sea. The engine of a second boat was not working, so the guards forced the remaining Ethiopians into a large, guarded yard near the shore. After a day in the yard without food, some detainees managed to escape.
The Houthi armed group, which controls the capital, Sanaa, and much of northern Yemen, has also arbitrarily detained migrants in poor conditions and failed to provide access to asylum and protection procedures in a facility near the western port of Hodeida, a former detainee and migrant community activists told Human Rights Watch. The former detainee said the conditions in Hodeida were “inhumane,” including overcrowding, lack of access to medical care, and physical abuse: “Some of the guards were very cruel and merciless. They used to beat us indiscriminately.”
Human Rights Watch examined photos showing men with sores and festering wounds. In early 2018, at least one group of migrants – 87 people, including 7 children – held in the Hodeida facility were released on condition they travel to Aden, the former detainee said. Yemeni soldiers stopped the group along the way and took them to the Buraika detention facility.
“Both the Yemeni authorities and the Houthis need to work with the United Nations refugee agency to establish a process that would allow African migrants to seek asylum or otherwise get needed protection,” Frelick said. “The horrific mistreatment of these vulnerable people only brings Yemeni leaders, whether from the government or the Houthis, into global disrepute.”
Migrants and Asylum Seekers in Yemen
Yemen has traditionally been a destination, source, and transit country for migrants. Of the estimated 10 million migrant workers in Saudi Arabia, up to 500,000 are Ethiopian nationals, many of whom travel irregularly to Saudi Arabia via Yemen. While many migrate for economic reasons, a significant number have fled because of serious human rights violations by their government.
Yemen is in the midst of an armed conflict, involving the Yemeni government and the Saudi-led coalition against the Houthis, and has what the UN calls the world’s worst and largest humanitarian crisis. But that did not stop more than 50,000 migrants from Somalia and Ethiopia, including more than 30,000 children, from going to Yemen between January and August 2017, according to the International Organization for Migration (IOM). By February 2018, Yemen was hosting about 281,000 refugees, including many Somalis, who are recognized as refugees on a prima facie basis, and asylum seekers. The numbers are most likely much higher, given the problems migrants have registering with humanitarian agencies.
Since 2015, the Yemeni government and the Houthis have detained migrants in poor conditions, refused access to protection and asylum procedures, deported migrants en masse in dangerous conditions, and exposed them to abuse. In November 2017, Saudi Arabia opened a major campaign to deport undocumented workers and by April 1 had apprehended over 885,000 people violating labor or residency laws, including 12,477 whom Saudi border guards caught trying to cross the border from Yemen. About 38 percent were identified as Ethiopian. Saudi Arabia has not established an asylum system for migrants to prevent their forced return to places where their lives or freedom would be threatened.
Tens of thousands of Ethiopians have fled Ethiopia since late 2015 following security forces’ brutal crackdown against protesters, particularly in the Oromia region, which resulted in over 1,000 deaths and tens of thousands of arrests. Further government-initiated clashes between ethnic communities in eastern Ethiopia since 2016 left over 1 million people displaced and hundreds more dead. Many people from eastern Ethiopia move to Yemen fleeing both abuses in Ethiopia and the long arm of Ethiopian security in neighboring countries. Thousands of Eritreans leave their country every month fleeing indefinite military conscription. In Somalia, conflict-related abuses, massive internal displacement from conflict and drought, insecurity in government-controlled areas, and targeted violence against civilians by the Islamist armed group Al-Shabab have caused many people to flee.
Role of Yemen and the United Arab Emirates
The migrant detention center in Aden’s Buraika district is officially under Yemeni government control. It is housed in a building owned by the Yemeni Ministry of Fisheries that was converted into a detention facility for migrants in early 2017. Yemeni soldiers have apprehended, detained, and helped to coordinate transporting migrants to the center.
Col. Khalid al-Alwani, the former police chief of Buraika district, served as director of the Department of Refugees Affairs and Migration and commander of the center under the Interior Ministry. Former detainees alleged that he had overseen abuse, including the beating and rape of detainees and threats to aid workers. Al-Alwani denied any wrongdoing when interviewed by Human Rights Watch.
The Interior Ministry said in its March 31 letter to Human Rights Watch that it had suspended al-Alwani in mid-March and that he had “overstepped his jurisdiction.” The ministry stated it would support investigations, legal action, and suspension of any of its employees at checkpoints or at the center involved in abuse, but said it had “received no complaints.” It said it did not have the means to provide support to the center but acknowledged it had coordinated with the Defense Ministry to provide food for the center.
The Interior Ministry said that Yemeni forces arrested and transported migrants to the center but conceded it did not control the elite units known as the Security Belt, which were “rounding up and transport[ing]… migrants and displaced people to the detention center.” These units are supported and take orders from the United Arab Emirates (UAE). A UN panel of experts determined that Security Belt and other elite forces were UAE proxy forces. The UAE plays a leading role in directing coalition operations in Aden and along Yemen’s southern and western coasts. In Aden, UAE-supported forces have a particularly strong hold in certain neighborhoods, including Buraika. The UAE government did not reply to a Human Rights Watch letter raising questions about the UAE’s role regarding the center.
While al-Alwani told Human Rights Watch the UAE did not play a role in the center’s operations, multiple sources and local media reported that al-Alwani coordinated with UAE-backed Yemeni forces to arrest and transport migrants to the center and was receiving some support from the coalition. He publicly asserted that Yemeni security forces were coordinating with the coalition to deal with the migrants in a “legal and humane manner” while they were detained before deportation. At least five people, including those who know al-Alwani personally or have interacted with him in a professional capacity, said he received support from the Saudi-led coalition. They cited examples in which al-Alwani or his associates asked others to seek permission from the UAE-backed Security Belt or the coalition to provide access to the center. At least once, al-Alwani refused entry to a Yemeni government official, telling the official he only recognized the coalition’s authority, a witness said.
The Interior Ministry letter said that, due to the war, state institutions did not have the capacity to adequately respond to migrants. It said that the government had formed a ministerial committee to oversee closure of the Buraika detention center and transfer migrants to a new facility in Ras al-Ara in Lahj governate. Ras al-Ara is infamous for its strong network of smugglers, increasing the risk to migrants.
Forced Returns, Smugglers, and Death at Sea
An Ethiopian man released from the center in 2018 said there were “two ways” to leave the Buraika detention center: by paying smugglers or by being “deported into the sea.”
In March 2017, Colonel al-Alwani told the media that security forces had detained more than 200 Ethiopian and Eritrean nationals in Aden and Lahj, who were then brought to the center and deported, presumably to their home countries. Human Rights Watch has previously documented the arbitrary detention and torture of Ethiopians and Eritreans who have been forcibly returned.
Two Ethiopians recently held at the center said that the guards allowed smugglers to enter and solicit money from detainees in exchange for promises to take them to Saudi Arabia. They witnessed Yemeni men in civilian clothes and guards asking people for their relatives’ phone numbers. They would then call the family members and tell them they could have their relatives released and sent to Saudi Arabia for a fee. More than 100 people whose relatives agreed to send money were eventually released, a third man said, with promises they would be taken to Saudi Arabia. He said an interpreter worked with the guards to take names, details, and negotiate payment between the migrants and the smugglers.
The Yemeni government bears responsibility for the deaths of deported detainees at sea. In a January 26 statement, IOM and the United Nations High Commissioner for Refugees (UNHCR) reported that 51 Somalis and 101 Ethiopians left Aden on January 23 on a boat operated by “unscrupulous smugglers who were attempting to take refugees and migrants to Djibouti, while also trying to extort more money from these refugees and migrants.”
Three people detained in the Buraika center at the time told Human Rights Watch the boat left from the center under al-Alwani’s supervision. Hours after leaving the center, the smugglers tried to force the Somali passengers onto a second boat, which capsized. The smugglers took the surviving Somalis and Ethiopians back to Yemen, but “left the others in the sea,” a survivor told a former detainee when he came back to the center. At least 30 people died. Two former detainees said that after the incident, a Somali official came to the center and yelled at al-Alwani for deporting people who perished at sea – soon afterward, the Somalis held at the center were moved elsewhere.
Accounts of Abuse
Pseudonyms been used to protect sources’ security.
“Ahmed”
Ahmed, 16, from Oromia, Ethiopia, said he went to Yemen in early 2018, walking for three days before reaching Aden. He registered with UNHCR as an asylum seeker. After about a week, a soldier in a local market apprehended him and took him to a nearby checkpoint, where he was held with 10 other Ethiopians, including women and other children. The soldiers took them to the Buraika detention center.
Guards searched them, taking their personal items, including their money. They also took Ahmed’s UNHCR document. Late at night, someone gave Ahmed some food; he hadn’t been given food or water since the soldier had found him that morning.
The guards regularly hit the prisoners, Ahmed said. One day he did not hear guards ordering the prisoners in the yard back inside. A guard began yelling, hitting him on his shoulder with a stick. “Beating was normal,” he said. “They beat anyone.”
About 10 days after he arrived, the guards told the men that one Ethiopian man had escaped. They took a large group of men and boys to the main yard and ordered them to strip naked, whipping seven and saying the men would not be given food or water until after sunset. The guards ordered the women to look at the naked men and boys and beat those who did not. Ahmed heard a gunshot. He saw the guards take an Ethiopian man’s limp body into a truck. Later, other detainees told him the man had been killed. “We don’t know how long we stayed,” he said. “When you are standing there, heat and hunger don’t matter. What matters is the gun. We are waiting for the gun.”
The nights were horrible, Ahmed said, as the guards would yell at the men and boys to go to sleep: “They would scare people with their guns... Some of my friends, who were kids, they [the guards] took them. And then when they came back they could not sit.” Some of the children told Ahmed the guards had raped them. He knew 10 children taken at night, including some held at the checkpoint with him the first day. Most were younger than he was.
One night, Ahmed saw a guard enter the ward and order a child who was asleep next to Ahmed to go with him. Ahmed heard the child screaming. He and his friend, terrified the guard would come back for them, decided to flee. They ran toward a part of the detention center they were prohibited from entering, managing to jump over a broken part of the wall. Ahmed heard shots. His friend fell: “I was just running, running, running. Then I slept. Somewhere. Then I walked…”
Another man, detained at the same time, confirmed that Ahmed had been held at the facility. Ahmed told Human Rights Watch, “When I see any military uniform, I get terrified.”
“Mohammed”
Mohammed, 29, an ethnic Oromo from Harar, Ethiopia, had taught secondary school math. He took a boat with about 170 other men and women across the Red Sea. After about 30 hours with the passengers crammed together “like stairs on top of one another,” the smugglers began shouting and hitting them with sticks, ordering them to jump into the sea. Mohammed did not feel he had a choice. He and the others swam to shore and immediately lay down on the beach, exhausted. They began walking in the morning, breaking into groups. They left one sick woman behind. “At that moment, it is very difficult to try to carry anyone or to stop for who is sick,” Mohammed said.
At a nearby checkpoint, a group of about 20 soldiers stopped Mohammed and about 50 other men and women; when some began to run the soldiers fired in the air. The soldiers gave them food and then forced them – including by hitting them – into three trucks made for transporting livestock and took them to the Buraika detention center. Over the next two months, Mohammed said, all 170 people with whom he had traveled to Yemen ended up there.
The guards beat him, repeatedly using a wooden stick to hit his foot, breaking it. He showed the disfigured foot to Human Rights Watch researchers. The guards shot two detainees while he was there, he said. When the detainees asked what happened to these men, the guards said they were sent for medical treatment, but he believed they died. Another time, the guards beat a group of men with metal rods, and the men’s wounds bled for more than two days. The guards would beat or whip those who resisted in front of the others. He said that IOM visited the center while he was there, but the guards refused to let them see the people they had mistreated, and the detainees weren’t able to tell them what was happening because the guards were always nearby and anyone who tried to tell visitors what was happening “would get beaten.”
The guards raped some of the young Ethiopian boys who were detained with him, he said. When other men refused food in protest, guards beat them. “The big men, they didn’t use them, but the boys, they used them, and the women,” he said. “They would change who every night…They sexually abused anyone without a beard, men and women, and anyone who resisted, they beat.” The guards would come at night, screaming at the detainees to go to sleep, and sometimes shooting in the air. When the boys came back, they would not be able to sit or walk well. The guards raped one Ethiopian boy about 10 years old. “Every time after that at night…. he would hold my hand.” Mohammed said the boy was terrified. “One of those times, the guards beat him with a metal stick.”
“Abubakr”
Abubakr, about 30, an Oromo from Harar, Ethiopia, arrived in Yemen in 2011. He said that in 2017, his younger brother was arrested at a checkpoint on the way to Aden, and then taken to the Buraika detention center.
Abubakr went with a Yemeni official to try and negotiate this brother’s release. He felt safe because he had a UNHCR refugee card, he said. When he arrived at the center, an official yelled at the man who had accompanied him, accusing them of trying to destroy his way of living. Abubakr said the official slapped him on the face, pain that Abubakr still feels, and took his UNHCR ID card and a large sum of money he had with him. Abubakr was detained there for a month.
Abubakr said that every night the guards would order the men and boys asleep, come into the hangar, stomp on some children’s feet, and order them to go with them. He said the boys would sometimes return crying, saying the guards had raped them. The guards also beat the prisoners, including with steel bars. After being beaten severely, one of his brother’s friends was sent away. Abubakr did not know what happened to him.
After a month in the center, the official told Abubakr he was releasing him, but that if he returned to ask about his brother he would be detained again. He made Abubakr sign a document that had the official Yemeni government seal, which he described to Human Rights Watch and identified.
“Fatima” “I would die if I stayed in the prison, I would die. I am still afraid,” said Fatima, 25, an Oromo woman from Harar, Ethiopia.
Yemeni soldiers arrested Fatima and her husband with a few dozen other Ethiopian men and women. When they arrived in Buraika, Fatima was separated from her husband. She saw the guards beating the men, ordering them to strip and checking their pockets. The male guards made the women take off their abayas and headscarves and checked their bodies and hair. They took them to a room with about 100 other women.
The guards would beat them regularly, she said, when the women would wail or yell. They could see the guards mistreating the men through holes in the wall of their enclosed space. The guards did not provide much food, a small plate of rice for 12 women, and the supply was not consistent.
Every night, the guards would take one or two women with them, she said. Most women were eventually forced to go with the guards. If a woman refused to sleep with the guards, they would retaliate by withholding food for two days, she said. She knew five girls – a 12-year-old, two 15-year-olds, and two 17-year-olds – who were held in the facility with her and who had been raped.
She said that two weeks after she was detained, one of the guards forced her to go with him. He took her into a nearby room, where she saw two other guards raping two of her female friends. The guard told her to take off her clothes. She refused, telling him she had a husband. The guard said she could choose: sleep with him or hang herself. There was a rope in the room. She began praying. The guard beat her, hitting her with his hands and with a large stick on her back.
Fatima became very sick, in severe pain and often crying and moaning. After the beating, she said the guards mostly left her alone, eventually releasing her when her health further deteriorated.
One of the two women Fatima saw being raped remains in the detention facility. The other was released after the guards “used her seriously and she became weak.” The guards promised to send this woman to Saudi Arabia, and Fatima heard they put her on a smuggler’s boat, but she did not know where the woman ended up.
“Omar”
Omar, 30, from Bale, Oromia region, Ethiopia, traveled to Yemen from Somalia in late 2017. He said that he and about a dozen others, including four women, arrived off the coast of Shabwa, an area largely controlled by the UAE-backed Shabwani Elite Forces. Soldiers at a checkpoint stopped them and gave them food. More Ethiopians arrived, until the group had about 30 people.
The soldiers made a phone call. A few hours later, men in civilian clothes came in a truck used for transporting livestock. They had an Oromo language interpreter with them. Omar heard the men and soldiers negotiating and believed the men were paying the soldiers for the migrants. The process appeared organized: He heard them asking the soldiers to sign a paper, so the men had a record they had paid.
The soldiers forced the group onto the truck, where they remained cramped for hours. Checkpoints along the road stopped the truck a few times, and Omar and others who spoke Arabic would yell that they were being smuggled, but each time the soldiers at the checkpoint let them pass. Omar said he saw the men showing the soldiers a piece of paper, which he thought was a permission form.
That night, the truck arrived at the Buraika detention center. The guards forced the men to strip, searching them and taking all of their belongings. They told everyone to turn over their money – if they found someone had hidden money, they would punish him. They took Omar’s money and phone.
The guards beat Omar and the two others who had been yelling along the way with a steel bar until they had fallen to the ground, bleeding, or fainted. Omar had a scar on his right eyebrow.
The third night he was detained, after hearing rumors the guards were raping some of the boys, Omar decided to stay awake. He positioned himself near a part of the wall that had a hole in it and peered out. He saw one of the guards raping one of the children. He said, “They do this every night, but I saw it two times, because if anyone tries to see them, they shoot them, and if anyone refuses, the next morning they take them out, and the one who refused, they beat him.”
One day a man suffering from diarrhea needed to use a toilet but there was none nearby. After he tried to explain this to the guard, who didn’t understand, he walked a bit away to defecate. The guard shot him. Omar said guards also shot another man during his detention.
Omar said he fled Ethiopia because he participated in the Oromo protests and feared government abuse. He intended to apply for asylum but was detained before he was able to. He still wants to apply for asylum, but said he was afraid to go to the UNHCR office, because was worried he would be apprehended en route. “The problems are still going on,” Omar said. “Many people in the [detention center] deserve asylum but have no way to ask for asylum.”
Recommendations
The Yemeni government should:
Transfer migrant detainees to centers that meet international standards.
Work with donor governments and international agencies to bring migrant detention centers in line with international standards under the UN Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”). These set out limits on the number of people per room; appropriate sleeping arrangements and bedding; adequate facilities for personal hygiene; adequate clothing and food; and access to medical services, among other things. No male staff member should enter the part of the prison set aside for women unless accompanied by a female staff member, and women prisoners should be attended and supervised only by female staff members.
Stop detaining children and their families for immigration violations, and work with UN and other impartial humanitarian agencies to identify children in detention and facilitate their safe release. In the interim, the authorities should ensure that detained children are kept separate from unrelated adults, and have appropriate food and medical care, and can communicate with their families.
Ensure that detention center staff act in accordance with the Standard Minimum Rules, particularly with respect to humane treatment and the use of force against detainees.
Investigate allegations of abuse, and appropriately discipline or prosecute those found responsible. Ensure redress for victims of abuse.
The Yemeni government and Houthi authorities should:
Ensure that detained migrants who may be facing deportation have the opportunity to make asylum claims or otherwise challenge their forced removal. Detaining asylum seekers should be a last resort.
Work with UNHCR and other impartial humanitarian agencies to establish a presence and procedures at known migrant landing points so that new arrivals can register and make asylum claims.
Provide UNHCR and other impartial humanitarian agencies unfettered access to all migrant detention centers and to individual migrants.
A rally held in support of the woman at the centre of the Belfast rape trial in which all four defendants including Paddy Jackson and Stuart Olding were acquitted of all charges, Belfast, March 31, 2018.
An unlikely source took a stance on respect for women: professional rugby. Two Northern Ireland players had their contracts revoked following their widely publicized rape prosecution.
These sports bodies have taken an important – and sadly uncommon– step in doling out consequences for unacceptable behaviour, even if it was spurred by financial concerns.
When Northern Ireland has a government, it should prioritize these reforms, in line with international guidance. This includes closing the courtroom to the public and minimizing how often victims must recount their experiences. It should also grant sexual assault victims the right to legal representation.
Other professional sports organizations should follow the rugby teams’ lead and not excuse sexist, degrading conduct. But without legal reform, rape victims in Northern Ireland are likely to think even harder before they dare come forward to seek justice.
(New York) – The Indian parliament should not adopt into law an ordinance which introduces capital punishment for those convicted of raping a girl under 12 years of age, Human Rights Watch said today. India should instead work towards abolishing the death penalty which is inherently cruel and irreversible, with little evidence that it serves as a deterrent.
The government passed the ordinance on April 21 following widespread protests after attempts by some leaders and supporters of the ruling Bharatiya Janata Party (BJP) to defend Hindu perpetrators of the abduction, ill-treatment, rape, and murder of an 8-year-old Muslim child in Jammu and Kashmir state. In Uttar Pradesh state, authorities not only failed to arrest a BJP legislator accused of raping a 17-year-old girl, but also allegedly beat her father to death in police custody.
“With this populist call for hangings, the government wants to cover up the fact that its supporters may have engaged in a hate crime,” said Meenakshi Ganguly, South Asia director. “If the government is serious about dealing with violence against women and children, it will have to do the hard work of reforming the criminal justice system and ensure that perpetrators are not protected from prosecution by political patronage.”
With this populist call for hangings, the government wants to cover up the fact that its supporters may have engaged in a hate crime.
Meenakshi Ganguly
South Asia Director
Two BJP ministers in Jammu and Kashmir state government joined an affiliated group called the Hindu Ekta Manch to protest the arrest of the accused in the horrific case in the state. The accused include a former government official and four police personnel. The ministers have since resigned.
Following the 2012 gang rape and death of Jyoti Singh Pandey, a medical student in Delhi, the Indian government enacted legal reforms to respond to sexual assault and rape. The Criminal Law (Amendment) Act, 2013, added new categories of offenses regarding violence against women and girls and made punishment more stringent, including death penalty for repeat offenders. Similarly, the Protection of Children against Sexual Offences Act, 2012, established guidelines for the police and courts to deal with victims sensitively and provided for the setting up of specialist child courts.
“There was hope that these measures would encourage more victims and their families to step forward, and result in more successful prosecutions,” Ganguly said.
While the number of rape cases reported in 2016 increased by 56 percent over 2012, there remains much to be done to change the way the justice system responds to victims.
In a November 2017 report, “Everyone Blames Me,” Human Rights Watch found that survivors, particularly among marginalized communities, still find it difficult to register police complaints. They often suffer humiliation at police stations and hospitals, are still subjected to degrading tests by medical professionals, and feel intimidated and scared when the case reaches the courts. They face significant barriers when trying to obtain critical support services such as health care, counseling, and legal aid.
Although Indian law makes it mandatory for police officials to register rape complaints, Human Rights Watch found that police sometimes press the victim’s family to “settle” or “compromise.”
In cases of children, not only has the government not established effective oversight mechanisms that could help prevent child sexual abuse, but existing measures remain poorly implemented.
For women and girls with disabilities, who face a higher risk of sexual violence, the challenges are even greater, Human Rights Watch has found.
However, instead of fixing these structural barriers, the Indian government has expanded the use of capital punishment for rape. Now the parliament should ensure that this ordinance does not become part of permanent legislation.
The government’s ordinance comes despite the fact that both a high-level government committee and India’s Law Commission came out against the death penalty. Human Rights Watch opposes the use of the death penalty in all cases.
The new ordinance also increases minimum punishment for rape of girls and women. While the Protection of Children Against Sexual Offences Act covers sexual abuse against both girls and boys, the ordinance does not cover rape of boys.
For rape of women above 16 years of age, minimum punishment is increased from 7 years to 10 years in prison;
For rape of girls between 12 to 16 years of age, minimum punishment is now 20 years which may extend to life in prison;
For gang rape of girls between 12 to 16 years of age, minimum punishment is life in prison;
For rape of girls under 12 years of age, minimum punishment is 20 years in prison which may extend to life in prison or death penalty;
For gang rape of girls under 12 years of age, minimum punishment is life in prison or death penalty.
In India, according to the 2016 government data, out of 38,947 cases of rape reported by children and women, the accused was known to the victim in 94.6 percent of the cases. In 630 cases, the accused was the victim’s father, brother, grandfather, or son; in 1,087 cases, the accused was a close family member; in 2,174 cases the accused was a relative; and in 10,520 cases, the accused was a neighbor.
Rape is already underreported in India largely because of social stigma, victim-blaming, poor response by the criminal justice system, and lack of any national victim and witness protection law making them highly vulnerable to pressure from the accused as well as the police. Children are even more vulnerable due to pressure from family and society.
With this background, an increase in punishment, including the death penalty, may, in fact, lead to a decrease in reporting of such crimes.
“The Indian government has repeatedly said that it is committed to dealing with violence against women and children. But actions speak louder than words,” Ganguly said. “The new amendments are ill-conceived and hasty. Protecting children requires a far more thoughtful approach and politicians need to summon the political will to deliver it.”
Sachan, a witness in the two rape trials of Asaram, and a third against Asaram’s son Narayan Sai went missing three months later and his fate is unknown. Earlier that year, he was stabbed outside a court in Jodhpur city.
On April 25, Asaram, a multi-millionaire who reportedly has 20 million followers, was sentenced to life in prison after being found guilty of raping a 16-year-old girl in his ashram in Jodhpur. But in the course of the trial, which began in 2013, three witnesses were killed, at least five others were attacked, one went missing, and even senior police officers leading the investigation said they were threatened. The trials of Asaram and his son in two other cases of alleged rape of two sisters are pending.
Asaram, until recently, counted among his following top political leaders of both the ruling and opposition parties, heightening challenges for victims of his alleged crimes to obtain justice.
Asaram may have exceptionally powerful connections, but as Human Rights Watch documented in the November 2017 report “Everyone Blame Me” threats, intimidation, and harassment from the accused are routine in cases of sexual violence.
Girls and women who report such crimes are even more at risk when they belong to socially or economically marginalised communities. If the perpetrators are influential, police too often pressure the complainants to “settle” or “compromise” in such cases. Such harassment and lack of protection, along with victim blaming and social stigma, means many victims fail to report rape to authorities at all.
For instance, police in UP’s Unnao instead of prosecuting a ruling BJP lawmaker accused in the alleged gang-rape of a 17-year-old girl in June 2017 arrested the victim’s father, who died in police custody in April 2018. The Allahabad High Court slammed the state police for failing to file her complaint and arresting the accused, noting that the report by a special investigation team ordered by the state government found that “medical officers and police officers — all were hands in glove with the accused to save them.”
Similarly, in Kathua in Jammu and Kashmir two police officers have been charged with trying to cover-up evidence in the kidnapping, gang-rape, and murder of an 8-year-old Muslim girl in January 2017.
In August 2017, responding to a plea from families of victims and witnesses in Asaram’s case to seek protection, the Supreme Court issued a notice to all state governments to frame a national witness protection programme.
This was not the first time the Supreme Court had observed that India needed a witness protection scheme. In 2006, the Law Commission had noted the need to protect witnesses and victims as well as the identity of witnesses in case of serious offenses, not just confined to terrorism or sexual offenses. “Witnesses turning hostile on account of threats having increased in the cases of such crimes, protection appears to have become necessary,” it said.
India has a conviction rate of 26 percent for rape, as compared to 47 percent for other cognisable crimes under the Indian Penal Code (IPC), according to 2016 government data. One reason, activists and lawyers say, is witnesses, far too often, change their testimony in court because of threats.
Both the IPC and the Protection of Children against Sexual Offences Act (POCSO) have provisions to protect victims and witnesses in court such as conducting in-camera trials, without the presence of the media or public. In case of children, POCSO also provides for special courts that should ensure that the identity of the child is not disclosed during the course of the investigation or trial.
However, India does not have a national witness or victim protection law, making witnesses and victims vulnerable outside the courtroom.
In 2015, Delhi became the only state to adopt a Witness Protection Scheme. The Delhi State Legal Services Authority (DSLSA) passes protection orders in each case after evaluating the threat. The police commissioner, who heads the Delhi police force, is responsible for the overall implementation of the witness protection orders. Protection measures can include armed protection, regular patrolling around witnesses’ house, installing closed-circuit television cameras, and relocation.
Even in the absence of a witness protection scheme, courts have ordered protection for witnesses and victims in sensitive cases or those involving high vulnerability. However, as the pattern of threats, attacks, killings, and abduction in the Asaram case shows, security is often inadequate.
Mahendra Chawla, a former personal assistant to Asaram’s son Narayan Sai, is another key witness in all the cases against father and son. In May 2015, two men on a motorbike shot him in his village in Haryana, leaving him partially disabled. Chawla was attacked a day after the police constable assigned to him was removed for dereliction of duty, leaving him without police protection and vulnerable to attack. After the attack, he was assigned three policemen but just before Asaram’s conviction this week, Chawla asked for increased protection, claiming he feared for his life.
Any successful witness protection scheme will have to evaluate the threat and determine the protection needs in each case carefully, allow for flexibility, and include regular follow-up. At the same time, in sensitive cases, especially of sexual violence, the courts should record the statements and examine the victims and vulnerable witnesses promptly, lessening the risk to them from the accused.
India needs critical justice system reforms to remove institutional barriers for sexual violence victims. And those, like the 16-year-old girl in this case, who are brave enough to confront their attackers or provide their witness testimony against powerful people, deserve the protection of a witness and victim protection law, instead of fearing for—and sometimes losing—their lives.
Reeling from protests across the country demanding justice for victims in the recent spate of sexual assaults, Indian authorities are under pressure to respond. One step the government has decided to adopt is a sex offenders’ database, which will store the profile and personal details of convicted offenders and those accused of such offenses. Children accused of such crimes may also be included in the database.
For several years, some senior government ministers have been calling for mandatory registration of sex offenders. It reflects public concern that children and women are at grave risk of sexual abuse by strangers who are repeat offenders.
But this concern is not borne out by facts.
According to 2016 government data, out of 38,947 cases of reported rapes in India, the accused was known to the victim in almost 95 percent of the cases. In nearly 4,000 cases, the accused was a close family member.
The fact that the offenders – often relatives or family friends – will be recorded in a national database for all time may actually lead to a decrease in reporting of such crimes. Even if the database is not public, the absence of laws to protect privacy and on data protection in India will raise further concerns.
Moreover, studies by Human Rights Watch and the American Civil Liberties Union show that sex offender registries in the United States have done more harm than good. Instead of crime prevention, they lead to harassment, ostracism, and violence against former offenders, especially children, and impede their rehabilitation.
The Indian government should instead better enforce existing laws and protection measures. It can start by ensuring that police officers, judicial officials, and medical professionals are sensitized on the proper handling of sexual violence cases -- and holding them to account when they don’t.
Photo showing a white dress symbolizing a bride produced by the Women’s Centre for Legal Aid and Counselling as part of their campaign to repeal article 308 which had allowed rapists to escape prosecution if they married their victims. The message in Arabic on the sign reads: “No to marrying the victim to the rapist.”
On March 14, 2018, the Palestinian president, Mahmoud Abbas, signed Law no. 5 of 2018, which repealed article 308 of the 1960 Penal Code enforced in the West Bank. Based on an assessment by the head of a women’s shelter, the law had allowed alleged rapists to escape prosecution and could allow convicted rapists to avoid imprisonment if they married their victims. The new law also amended article 99 to prohibit judges from reducing sentences for serious crimes, such as the murder of women and children.
“The Palestinian Authority has finally closed disturbing colonial-era and other loopholes that could allow rapists to escape punishment if they married their victims, and to treat murders of women as a lesser crime than murders of men,” said Rothna Begum, Middle East women’s rights researcher at Human Rights Watch. “Other countries in the region that still have provisions that could allow rapists to go free by marrying victims, including Algeria, Bahrain, Iraq, Kuwait, Libya, and Syria, also should repeal them.”
Human Rights Watch in April discussed the status of women with members of the Palestinian Ministry of Women’s Affairs and the Public Prosecution Office. Human Rights Watch also met with 18 representatives of various women’s rights groups, human rights organizations, and international organizations in the West Bank and East Jerusalem.
Systematic abuses associated with Israel’s 50-year occupation including institutionalized discrimination, home demolitions and restrictions on movement fundamentally undermine the rights of Palestinian women in the West Bank and Gaza. Human Rights Watch has documented the impact of these practices in a submission for Israel’s review of its record under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in October 2017.
The new amendments do not apply to pending court cases. It is not clear how many alleged or convicted rapists have been able to escape prosecution or conviction under article 308. Ikhlas Sufan who directs a shelter for victims of violence in Nablus, told Human Rights Watch that between 2011 and 2017 prosecution for rape has been halted in 60 cases – in which the shelter was helping the women – after the alleged rapist agreed to marry the victim. In 15 of these cases the women later divorced these men.
Both Sufan and the Women’s Centre for Legal Aid and Counselling (WCLAC) warned that families may still coerce women and girls who become pregnant to marry the men because of barriers to getting birth certificates for children born out of wedlock and the criminalization of abortion.
The Public Prosecution’s 2017 annual report says that 11 out of 14 murders of women in 2016 and 2017 in the West Bank – excluding Area C and East Jerusalem, where the Palestinian Authority has no oversight – were committed by a relative. It is unclear whether any of the alleged killers claimed the need to protect their family “honor” as a defense.
Dareen Salhieh, chief prosecutor of the Family Protection Unit in the Public Prosecution, said that they conducted gender-sensitive training for the police and prosecutors in the West Bank, who then investigated and referred cases of killings of women by their husbands or families to courts. The judges, however, often reduced the sentences of defendants who had been found guilty. The 2014 Office of the UN High Commissioner for Human Rights study found that judges in first instance courts reduced sentences on claims of “honor” killings in 29 out of 37 rulings, in a random sample of cases between 1993 and 2013.
Training judges and closely monitoring convicting and sentencing of gender-based violence cases will be important to end impunity, Human Rights Watch said.
In another key reform on March 5, Prime Minister Rami Hamdallah announced the cabinet’s decision to allow women who have custody of their children, to open bank accounts for them, transfer their children to different schools, and apply for their passports.
However, the two laws that apply to Muslims, the Jordanian Personal Status Law No. (16) of 1976 enforced in the West Bank, and the Egyptian Family Rights Law No. (303) of 1954 enforced in Gaza, do not make the best interests of the child the primary concern when determining which parent the child should live with and which guardianship rights each parent should have. Under these laws, fathers retain guardianship rights even when the child is officially living with the mother, and the child can be automatically removed if the mother remarries, but not the father.
As guardians, fathers can withdraw money from a child’s bank account opened by the mother even if the child lives with the mother, but mothers cannot do the same if the child lives with the father. A woman also needs the father’s permission to travel abroad with her child. Both family laws also discriminate against women in marriage, divorce, and inheritance.
Palestine also does not have a domestic violence law, which makes it difficult to adequately protect survivors of domestic violence or prosecute abusers. The Palestinian Central Bureau of Statistics (PCBS) 2011 national survey of 5,811 households on gender-based violence found that 37 percent of married women who responded had been exposed to at least one form of violence by their husbands.
Since 2006, when Human Rights Watch reported on the inadequate response to domestic violence in Palestine, the Palestinian Authority has taken some positive steps in the West Bank by creating specialized Family Protection Units in police stations and family protection prosecutorial units. But the lack of a legal framework to address domestic violence has hampered the work of such units. “We don’t have protection orders or prevention procedures” to help protect women, said Dareen Salhieh, the chief prosecutor.
Palestinian authorities are considering a draft Family Protection Law that would remedy this if amended in line with international standards. Such a law should set out the government’s key obligations to prevent violence, protect survivors, and prosecute abusers, Human Rights Watch said. It should criminalize marital rape, revise the definition of the “family” to include non-marital partners, and provide funding to enforce the law.
“Palestinian authorities have a critical window to pass needed reforms before international experts scrutinize their record on women’s rights in July,” Begum said. “A comprehensive domestic violence law and reforms to personal status laws are essential for demonstrating a commitment to women’s equality and protection.”
Laws in Palestine and the Palestinian Authority’s Limited Reach
Laws in the West Bank and the Gaza include a combination of unified laws promulgated by the Palestinian Legislative Council and ratified by the president. If no unified law has been issued, existing Jordanian, Egyptian, and former British Mandate laws still apply.
The Jordanian Penal Code No. (16) of 1960 and the Jordanian Personal Status Law No. (16) of 1976 are enforced in the West Bank, while the British Mandate Criminal Code Ordinance No. (74) of 1936 and the Egyptian Family Rights Law No. (303) of 1954 are enforced in Gaza. In East Jerusalem, which Israel unlawfully annexed in 1967, Israel has applied Israeli civil law, though it remains occupied territory under international law.
Article 9 of the Palestinian Basic Law, promulgated in 2003 and last amended in 2005, provides for equality before the law without distinction based upon sex. The full Palestinian Legislative Council has not convened since 2006, but article 43 of the Basic Law allows the Palestinian president to issue presidential decrees until it reconvenes and can review all such legislation. Some presidential decrees have included amendments to Gaza’s laws, but Hamas, as the de facto authority there, has not applied them and instead issued separate decrees.
The Palestinian Authority’s reach is limited as it cannot enforce its laws in Area C, the 60 percent of the West Bank where the Israeli military has exclusive control, or in East Jerusalem, where Israel has applied Israeli civil law, though it remains occupied territory under international law. The Palestinian Authority also cannot apply its laws in Gaza, which is under the control of Hamas. Women’s rights organizations and government officials told Human Rights Watch that some men who commit violence against women flee to Area C, East Jerusalem, or Israel to escape prosecution.
The UN Special Rapporteur on violence against women noted in her 2017 report that “the occupation is a real obstacle to the State’s [of Palestine] due diligence obligation to prevent violence against women in areas where it does not have full jurisdiction, because of the fragmentation of the areas under different control and the political divide between the Gaza de facto authority and the Government of the State of Palestine.”
Women in East Jerusalem who experience domestic violence face particular barriers. Oheila Shomar, director of Sawa Organization, nongovernmental organization that supports survivors of domestic and sexual violence, said that: “Many Palestinians don’t want to cooperate and fear what will happen to them and how the [Israeli] police will use their situation to harm the family if they file a complaint. If a woman tries to go to the [Israeli] police, the family and community stigmatize her for going to the occupation and harming her family."
Children Born Out of Wedlock
Palestinian authorities require a marriage certificate to register births. In the West Bank, mothers can obtain birth certificates for their children born out of wedlock, but these children cannot take a family name, exposing them to stigma. Even if they are given up for care, their foster families cannot officially adopt them or give them their family name. The Women’s Centre for Legal Aid and Counselling (WCLAC) said they knew of 27 such children in the Social Development Ministry’s care.
Randa Siniora, director of WCLAC, warned that families may still try to force women and girls to marry their alleged rapists or men with whom they have had extramarital sex “unless the authorities provide safe, legal abortions and the registration of children born outside of wedlock.”
The head of one shelter for victims of violence said they advised a 22-year-old woman who came to them six months pregnant to marry the father to help register the child under the father’s name. She did and divorced him a week later.
Palestinian authorities should stop requiring a marriage certificate to register a birth, Human Rights Watch said. They should allow women to register their children with a family name of their choice and ensure that children don’t suffer discrimination due to the parents’ marital status.
Criminalization of Abortion
The 1960 Penal Code enforced in the West Bank and the 1936 Penal Code enforced in Gaza both criminalize abortion. Women can receive reduced sentences for an illegal abortion under the 1960 Penal Code if they cite “honor” as the reason.
In practice, authorities may allow abortions in the first four months of pregnancy in situations of rape or incest, or if the mother has a disability or her life is at risk. However, Sufan, the shelter director in Nablus, said, “it is difficult, the mufti [religious jurist], hospital, and court all have to agree to allow the abortion.” Salhieh, the chief prosecutor, said that prosecutors obtained permission for seven women to have abortions in 2017, all in cases in which the women alleged that the pregnancy was a result of rape or incest and they were in the early stages of pregnancy.
Palestinian authorities should decriminalize abortion, Human Rights Watch said.
Reduced Sentences in So-Called ‘Honor’ Killings
These killings relate to cases in which a family member kills a relative for a transgression that they claim breaches the family’s “honor.” WCLAC documented 23 killings of Palestinian women and girls in 2016 across Palestinian territory, many of which they said were based on “honor”, or the killer claimed it was. Women Media and Development (TAM) said in its 2016 report that the killings actually related to inheritance, revenge, or other reasons but that the killers claimed they related to family honor to receive a lighter sentence.
Several reforms in the past few years have attempted to tackle the judges’ use of various legal provisions to reduce sentences on the pretext of “honor.”
In 2011, Abbas issued a decree abolishing article 340 of the 1960 Penal Code, which allowed a sentence reduction for a man convicted of killing or attacking his wife or female relative if he alleged that he came upon her in the act of adultery or extra-marital sex. In 2014, the president issued a decree amending article 98 of the 1960 Penal Code, which allowed reduced sentences for those who committed a crime in a “state of great fury” [or “fit of fury”] resulting from an “unlawful and dangerous act by the victim.” The amendment prohibited the use of this defense “against a female on the grounds of honor.” The decree similarly amended article 18 of the 1936 Penal Code, which applies to Gaza.
But, as the public prosecutor pointed out in a 2014 report, judges in the West Bank often use article 99 of the 1960 Penal Code to reduce sentences by half in cases in which the victim’s family– in some cases like “honor” killings also the killer’s family – waives its right to seek prosecution. Article 99 provides reduced sentences for mitigating factors but does not set out what they are. In practice, courts consider that victims and their families have a right to waive the prosecution as a mitigating factor. A 2014 Office of the UN High Commissioner for Human Rights study found that in 14 out of 37 rulings from the random sample of cases between 1993 to 2013, judges in first instance courts invoked article 99 to reduce sentences for killings of women where families withdrew their right to seek prosecution.
Law No. (5) of 2018 essentially closes this loophole by amending article 99 to prohibit the use of mitigating sentences in serious crimes against women and children. However, this amendment will not apply to cases pending when the amendment was passed. Salhieh said that the Public Prosecution has routinely appealed cases in which courts reduced sentences for killing women. The 2014 public prosecution report noted that in 90 percent of cases involving gender-based violence at first instance and appeal courts, the public prosecution appealed reduced sentences for “fit of fury” defense or mitigating factors that were not well-reasoned or they relied on a family waiver of prosecution.
Salhieh and Randa Siniora of WCLAC told Human Rights Watch about the prominent pending case in which the husband of Suha al-Deek, allegedly stabbed her 25 times, killing her in January 2014 in front of their children. In 2016, the first instance court in Nablus initially sentenced him for willful killing but used articles 97 and 98 to reduce his sentence to two-and-a-half years imprisonment. The public prosecution appealed, and the appeals court convicted him of premeditated murder and sentenced him to 25 years in 2017 but used article 99 and time served to reduce it to 10 years.
His lawyer appealed the case to the cassation court, which reduced his charge to willful killing and sent the case back to the appeals court. The appeal court then sentenced him to 15 years and again used article 99 to reduce his sentence by half. “We are appealing the case again to the Cassation Court,” Salhieh said.
The UN Special Rapporteur on violence against women said in her 2017 report that she was informed that perpetrators often also use article 62 of the 1960 Penal Code, which allows parents to “discipline” their children by general custom, as a defense against charges that they abused or killed their daughters.
Palestinian authorities should monitor the convictions and sentencing in cases of gender-based violence, including murders, to ensure that judges are not using other legal provisions to reduce penalties in such cases, Human Rights Watch said. They should also invest in gender-sensitive training for judges, particularly regarding violence against women.
Discrimination in Marriage, Divorce, and Decisions Concerning Children
The Council of Ministers’ March decision to allow women who have custody of their children to open bank accounts for their children, transfer their children to different schools, and apply for their passports is important progress, but women still have inferior status in the law. “These reforms are administrative procedures and are not complete,” Sabah Salameh, coordinator of the Muntada Forum to Combat Violence against Women – representing a coalition of 17 nongovernmental organizations – told Human Rights Watch. She said that because fathers remain the official guardian, under personal status laws regardless of whether they have custody, the fathers can withdraw money from their children’s bank account even when the mother opened it.
The 2004 Law on the Palestinian Child provides that the state, including the courts, must take the best interests of the child into account in all its actions. But the personal status laws discriminate against women by allowing fathers to retain guardianship rights even if the children live with their mother, and consenting that woman loses custody if she remarries.
Under personal status laws that apply to Muslims, men can have four wives, while women cannot marry without a male guardian’s permission, unless they have previously married, or else they obtain court approval to marry without a male guardian’s permission or against their guardian’s wishes. The laws also require women to obey their husbands – including where the husbands change their residence or forbid women from working – in return for their entitlements to maintenance and accommodation from their husbands. Men have a unilateral right to divorce, while women must apply to the courts for divorce on specific grounds.
Ikhlas Sufan, a director of a shelter in Nablus, told Human Rights Watch that “divorce cases can go on for two to three years because the husband can claim he wants to reconcile when he doesn’t really.” This relates to cases in which a woman may seek a divorce on the basis of “dispute and discord” under article 132 of the Personal Status Law in the West Bank or “harm” under article 97 of the Family Rights Law in Gaza provided the spouses undergo a mandatory mediation process. In the West Bank, even if the wife claims domestic violence, the court is required to attempt reconciliation, and should these attempts fail, turn the matter to arbiters who must likewise attempt reconciliation before recommending a divorce that apportions blame.
Human Rights Watch spoke to “Aisha,” whose name was changed for security reasons, a 30-year-old woman in Nablus who filed for divorce in 2016 after years of alleged domestic violence. She said the judge has not yet approved the divorce and has tried to reconcile the couple. She said: “The last time I went to court in March [2018], the judge gave him a month to improve himself to see if we can live together. The judge asked me, and I said, ‘No, after two years I don’t think we can reconcile’.”
An official from the Women’s Affairs Ministry said that in March, the government set up a ministerial committee to review the personal status laws.
The Palestinian authorities should ensure that women have equal rights with men in relation to marriage, divorce, residency (custody) and guardianship of children, and inheritance, Human Rights Watch said.
Inadequate Protections for Domestic Violence
The 2011 national survey by the Palestinian Central Bureau of Statistics (PCBS), which surveyed 5,811 households on gender-based violence, found that 30 percent of married women respondents in the West Bank and 51 percent in the Gaza Strip had been exposed to at least one form of violence by their husbands. Fewer than one percent said they sought police help. Sufan said that domestic violence continues because “there are no legal or social deterrents” and the abuser “knows he can get away with it.”
Women’s rights groups have pushed for a domestic violence law since 2007. The Ministerial Harmonization Committee is reviewing a draft Family Protection Law, for which women’s rights groups have recommended improvements. Human Rights Watch reviewed the draft and found a number of positive provisions, such as creating emergency protection orders (also known as restraining orders) to prohibit contact between the accused and the victim, including removing the accused from the home; criminalizing forms of violence such as forced marriage; increasing penalties for physical violence; and setting out duties of the police and family protection units to accept complaints, investigate, and assist and protect survivors.
However, the bill does not explicitly set out the government’s key obligations to prevent violence, protect survivors, and prosecute abusers. The authorities should amend the penal code to define rape as a physical invasion of a sexual nature of any part of the body of the victim with an object or sexual organ, without consent or under coercive circumstances. The code should also indicate that sexual assault is a broader category and includes non-penetrative forms of assault, and explicitly criminalize marital rape.
The 1960 Penal Code in the West Bank excludes marital rape. “If a married woman says that her husband raped her, according to the penal code and the sharia courts, this is not a crime,” Salhieh said. “But if she has marks of the assault, we then investigate it as physical abuse instead of rape.” The penalties for physical assault that causes minor injuries are much lower than for rape, though.
The Palestinian authorities also should revise the definition of the “family” in the draft law to include non-marital partners and provide funding for enforcement, Human Rights Watch said. Lebanon’s Law on Protection of Women and Family Members from Domestic Violence, for instance, includes a mechanism to finance assistance for survivors and measures to protect and prevent domestic violence as provided in the law, and Morocco’s Law no. 103-13 on combating violence against women includes domestic violence by fiancés.
In recent years, almost half of the countries and autonomous regions in the Middle East and North Africa have introduced some form of domestic violence legislation or regulation, including Algeria, Bahrain, the Kurdistan Region of Iraq, Israel, Jordan, Lebanon, Morocco, Tunisia, and Saudi Arabia. These laws vary in the degree to which they comply with international standards.
The Palestinian authorities should amend the draft Family Protection Law to ensure full protection of survivors and pass it expeditiously, Human Rights Watch said.
Palestine’s Obligations Under International Human Rights Law
Palestine acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in April 2014 without reservations or declarations, the only state in the Middle East and North Africa region to do so. Women’s rights groups have called for the Palestinian Authority to publish CEDAW in its Official Gazette, which would make it binding as domestic law under the Palestinian Basic Law.
CEDAW requires states parties to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women.”
The UN Convention on the Rights of the Child (CRC), which Palestine also acceded to in April 2014 without reservations, outlines states’ obligations to register children immediately after birth and elaborates the right from birth to a name. Access to birth registration cannot be undermined by discrimination of any kind, including on the basis of the child’s, the parent’s, or legal guardian’s sex or other status, including marital status. It requires the government to ensure that the best interests of the child are a primary consideration in all actions concerning children.
International media has rightly focused on the case of Noura Hussein, a 19-year-old Sudanese woman sentenced to death for killing her husband – whom she’d been forced to marry – as he tried to rape her.
The court which tried Noura apparently had no regard to the fact that her husband had previously raped her violently with the help of his family members, or that she was forced into the marriage by her own family at just 16. Instead, it convicted her of murder and sentenced her to death by hanging after the man’s family opted for death over diya, or compensation. The United Nations and rights groups have appealed for clemency, and #justicefornoura is trending.
This is not the first time Sudan has attracted global condemnation for sentencing a woman to death. In 2014, an eight-month-pregnant woman, Mariam Yahyia Ibrahim, was sentenced to death for the crime of apostasy, for claiming to be Christian, and to 100 lashes for the crime of adultery, for marrying a non-Muslim Southern Sudanese.
Beyond Sudan’s intolerable imposition of the death penalty, both these cases illustrate the country’s discriminatory laws, which also allow children as young as 10 to be forced into marriage. Despite 2015 amendments to the criminal code, judicial authorities don’t recognize marital rape as a crime. The government also enforces discrimination through morality and public order laws, which make dress code violations and other personal choice crimes punishable by humiliation and flogging. In 2016, Human Rights Watch documented how these, in combination with security officials’ abuses, can be used to silence those who challenge authority.
And that’s not all. Sudan’s security forces have also raped civilians in Darfur, sometimes on a mass scale, and in other conflict zones, crimes which may constitute crimes against humanity, and for which nobody has been brought to justice. The United Nations expert on sexual violence in conflict noted following her recent visit to Sudan that there is a deep-seated culture of denial around rape, because it is prohibited under Islam. “No religion or faith, however, is immune from sexual violence,” she said. Sudanese authorities should take note.
In Mariam’s case, the courts eventually overturned the sentence. They should do the same for Noura. All Sudanese women and girls should be free from systemic discrimination and in particular protected from rape while the perpetrators are brought to justice. As one Khartoum-based activist told me, “there are many Nouras.”
(Yangon) – Myanmar should comply with a United Nations committee’s request for information on the military’s responsibility for widespread rape of Rohingya women and girls in northern Rakhine State, Human Rights Watch and Fortify Rights said today. The two groups provided the committee with an 11-page joint report on sexual violence committed by Myanmar’s security forces against Rohingya villagers in 2016 and 2017.
In November 2017, the independent expert committee monitoring implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a global women’s rights treaty, requested the Myanmar government submit a report on the situation of women and girls from northern Rakhine State by May 28, 2018. The CEDAW committee has only requested such an “exceptional report” three times previously.
“The CEDAW committee’s rare request for Myanmar to report on sexual violence against Rohingya women and girls outside normal reporting procedures shows the extreme nature of the military’s mass atrocities,” said Skye Wheeler, women’s rights emergencies researcher at Human Rights Watch. “The government should cease its shameless denials and start openly cooperating with international monitors.”
The CEDAW committee request followed numerous reports of Myanmar army-led attacks on Rohingya Muslims, including mass killings, rape and other sexual violence, and widespread arson in hundreds of predominantly Rohingya villages, forcing more than 717,000 Rohingya to flee to neighboring Bangladesh since August 2017.
The joint report by Human Rights Watch and Fortify Rights includes information based on hundreds of interviews with Rohingya refugees in Bangladesh, including 37 women and girls who were raped in August and September 2017, mostly by gangs of uniformed soldiers. Witnesses and survivors also saw many other women and girls raped in groups, which amounted to patterns of gang rapes, as well as biting, kicking, and other physical abuse. Many recounted soldiers killing their elderly parents or children, including by throwing their infants into fires.
The CEDAW committee’s rare request shows the extreme nature of the Myanmar military’s mass atrocities.
Skye Wheeler
Women’s Rights Emergencies Researcher, Human Rights Watch
“I was held down by six men and raped by five of them,” said a 33-year-old Rohingya woman. “First, [the soldiers] killed my brother.… [They] stuck a knife into my side and kept it there while the men were raping me. That was how they kept me in place.… I was trying to move and [the wound] was bleeding more.”
The CEDAW committee requested that Myanmar’s government provide information on the battalions that carried out the attacks in northern Rakhine State and their commanding officers. As a party to CEDAW, Myanmar is required to report on its implementation of the convention, including in the case of exceptional reports, which are requested in situations where there is “reliable and adequate information indicating grave or systematic violations of women’s human rights.”
Myanmar’s government claims it instructs its security forces to respect military codes of conduct that forbid rape. It has repeatedly denied that its forces committed rape, including through biased investigations that lack credibility. A Rakhine State minister responded to reports of sexual violence against Rohingya last year by saying: “Look at those women who are making these claims – would anyone want to rape them?”
“Myanmar’s security forces used brutal gang rapes to terrify and injure as part of their ongoing attack on the Rohingya population,” said Matthew Smith, chief executive officer at Fortify Rights. “The authorities’ denials, essentially saying Rohingya women are liars, compound the terrible harms inflicted.”
The CEDAW committee also requested that the Myanmar government report on any efforts to provide justice and other reparations to sexual violence victims, as well as on access to sexual and reproductive health care for Rohingya women and girls. Successive Myanmar governments have persecuted the Rohingya for decades, denying them citizenship rights, freedom of movement, and equal access to education and health care.
CEDAW should call on the Myanmar government to:
Ensure unimpeded access for humanitarian aid organizations, journalists, and human rights monitors in Rakhine State
Immediately repeal all discriminatory laws and cease practices that restrict the marriage, movement, childbirth, and livelihoods of Rohingya
Ensure full access to quality sexual and reproductive health care, including prenatal care and emergency obstetric care
Sexual violence, like torture, is often followed by long-term trauma and serious mental health consequences including anxiety, depression, and post-traumatic stress disorder. Rohingya survivors of sexual violence and other attacks should be able to access long-term health care services as well as a path to justice and voluntary, dignified, and safe return to their homes.
International condemnation and calls for independent, rigorous investigations have been growing. In April 2018, the Myanmar army was included on the UN secretary-general’s “list of shame,” a register of national armed forces and armed groups whose members are credibly suspected of carrying out sexual violence.
The Myanmar government has continued to deny the UN Fact-Finding Mission and UN special rapporteurs access to northern Rakhine State. The authorities also continue to obstruct the delivery of humanitarian aid to vulnerable populations.
“Myanmar has repeatedly ignored international calls for information and access,” Smith said. “The CEDAW committee’s report request was an important step, but the UN should now ramp up its pressure on the government to end its atrocities against women and girls as well as its denials of abuses ever taking place.”
Burmese security forces have committed widespread rape against women and girls as part of a campaign of ethnic cleansing against Rohingya Muslims in Burma’s Rakhine State.
Human Rights Watch and Fortify Rights welcome the opportunity to provide joint input into the November 2017 request by the Committee on the Elimination of Discrimination against Women (CEDAW) for an exceptional report from the Myanmar government on the situation of women and girls from northern Rakhine State.
This submission outlines the findings of our organizations through several separate on-the-ground investigations in 2016, 2017, and 2018 that documented widespread human rights violations committed against ethnic Rohingya women and girls by Myanmar security forces.
Our organizations have documented numerous mass atrocity crimes—including widespread killings, torture, rape and other sexual violence, arbitrary arrests, and mass arson—committed by Myanmar’s army and other state security forces. Human Rights Watch has found that these atrocities against the Rohingya amount to crimes against humanity.[1] Fortify Rights, along with the United States Holocaust Memorial Museum and the Allard K. Lowenstein Clinic at Yale Law School, found strong evidence of genocide being committed against the Rohingya.[2] In November 2017, Pramila Patten, the United Nations special representative on sexual violence in conflict, said the Myanmar army’s widespread use of sexual violence against Rohingya women and girls was “a calculated tool of terror aimed at the extermination and removal of the Rohingya as a group,” adding that she documented the basis for characterizing the crimes as genocide.[3] In December, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said that one “cannot rule out the possibility that acts of genocide have been committed.”[4] In March 2018, UN Special Rapporteur Yanghee Lee said the crimes against Rohingya in Myanmar “bear the hallmarks of genocide.”[5]
This latest campaign of violence against Rohingya comes in the context of a long history of abuse and discrimination against Rohingya women by Myanmar authorities. These include sexual harassment and violence as well as denial of access to sexual and reproductive health care for women and girls protected under international law.
We have organized key findings of our research in response to some of the questions posed by CEDAW to the Myanmar government.
Information concerning cases of sexual violence, including rape, against Rohingya women and girls by state security forces, and details on the number of women and girls who have been killed or have died due to other non-natural causes during the latest outbreak of violence.
In December 2016 and January 2017, Human Rights Watch researchers in Bangladesh interviewed 18 women, of whom 11 had survived sexual assault, as well as 10 men, all of whom had fled military-led “clearance operations” in northern Rakhine State in late 2016. Altogether, Human Rights Watch documented 28 incidents of rape and other sexual assault.[6] In September and October 2017, Human Rights Watch interviewed 52 Rohingya women and girls, including 29 survivors of rape, who fled to Bangladesh since the 2017 “clearance operations” began.[7] Rape survivors were from 19 different villages in Myanmar’s Rakhine State, mostly in northern Buthidaung and Maungdaw townships.
In December 2016 and March 2017, Fortify Rights spoke to eight Rohingya women who were raped and gang raped by Myanmar army soldiers in October and November 2016 in seven villages in Maungdaw township.[8] Six of these cases were gang rapes; two were rapes followed by attempted gang rapes. All but one rape survivor who spoke to Fortify Rights witnessed soldiers rape other Rohingya women and girls as well. Fortify Rights also documented and analyzed the testimony of more than 17 witnesses to rapes in October and November, and from 14 Rohingya who provided additional information related to rape committed by Myanmar army soldiers in the above villages and other villages during that period.[9] Five medical doctors and physicians treating Rohingya rape survivors in Bangladesh and three international aid workers provided further information to Fortify Rights on the rape of Rohingya women during “clearance operations” in Maungdaw township in October and November 2016.[10] Fortify Rights also documented rape and sexual violence in August and September 2017 in all three townships of northern Rakhine State, including through interviews with nine witnesses to rapes, gang rapes, and post-rape body mutilation by Myanmar army soldiers.[11]
Witnesses and survivors of rape described to Fortify Rights how Myanmar army soldiers gang raped Rohingya women and girls in homes, schools, paddy fields, forested areas, and other community buildings, often in plain view of other soldiers and civilians.
Human Rights Watch found that Myanmar security forces raped and sexually assaulted women and girls both during major attacks on villages following August 25, 2017, as well as in the weeks prior to these major attacks, sometimes after repeated harassment. In every case described to Human Rights Watch, the perpetrators were uniformed members of security forces, almost all military personnel.
Rape survivors described brutal circumstances of the rapes. All but one of the rapes reported to Human Rights Watch were gang rapes, involving two or more perpetrators. In eight cases, women and girls reported being raped by five or more soldiers. They described being raped in their homes and while fleeing burning villages. Human Rights Watch documented six cases of “mass rape” by the Myanmar military, including in Tula Toli village, officially known as Min Gyi, in Maungdaw township. In these instances, survivors said that soldiers gathered them together in groups and then gang raped or raped them. Ethnic Rakhine villagers, acting alongside and in apparent coordination with government security forces, were also responsible for sexual harassment, often connected with looting.
The rapes were accompanied by further acts of violence, humiliation, and cruelty. Security forces beat women and girls with fists or guns, slapped them, or kicked them with boots. In two cases, women reported that their attackers laughed at them during gang rapes, and more frequently attackers threatened their victims either verbally or through actions like putting a gun to their heads. Some attackers also beat women’s children during the attacks. Fortify Rights documented instances of soldiers killing Rohingya women and mutilating their bodies after raping them, including cutting off breasts and cutting vaginas and stomachs with long knives.
Rape survivors spoke of enduring numerous abuses at once. In addition to being gang raped, three women described with great distress seeing security forces murder their young children. Other women and girls said they witnessed killings of their elderly parents, their husbands, other family members, and neighbors. Many reported witnessing cruelty toward those especially vulnerable, such as a soldier killing a 5-year-old girl who could not keep pace with her fleeing family, or security forces pushing older persons who could not flee back into burning houses.
None of the rape survivors interviewed by Human Rights Watch or Fortify Rights received post-rape care in Myanmar. Survivors did not receive urgent interventions that must take place within days of the rape, such as emergency contraception (within 120 hours) or prophylaxis against HIV infection (within 72 hours). The Myanmar government continues to obstruct humanitarian access to much of Rakhine State.
Humanitarian actors in Bangladesh have said that they have received and treated or provided support to dozens or, in some cases, hundreds of women who survived rape or other attacks. The UN reported that humanitarian organizations had provided support to 2,756 survivors of sexual and gender based violence.[12] These likely represent only a small proportion of the actual number of women and girls raped, given that they do not include those who were raped and subsequently killed, that survivors may be reluctant to seek assistance due to the stigma attached to sexual assault, and that various other factors discourage reporting, including concern about paying fees for medical care and lack of confidence in future criminal investigations. Of the survivors interviewed by Human Rights Watch, almost two-thirds had not reported their rape to authorities or humanitarian organizations. Most of the survivors with whom Fortify Rights spoke had not reported their rape to anyone at the time—even members of their families.
UN humanitarian reports indicate that sexual violence has been widespread in the recent attacks against Rohingya, with a cumulative total of 6,097 incidents of gender-based violence reported from late August through late March, including, but not limited to, sexual forms of violence.[13] Between October 22 and 28 alone, 306 gender-based violence cases were reported, 96 percent of which included emergency medical care services.[14] These UN figures aggregate different organizations’ cases. One Bangladeshi organization that does outreach work with survivors of sexual violence told Human Rights Watch in September 2017 that they had received hundreds of new cases of rape and other sexual violence since the August 25 attacks. Another organization said they had provided services to 58 survivors of rape and 12 survivors of sexual assault that had arrived since August 2017. A third organization said they had identified 50 recent rape survivors as of September 2017.
Rohingya women and girls were also raped and subjected to sexual harassment by Myanmar security forces during security operations in late 2016. Human Rights Watch documented 28 incidents of rape and other sexual assault in this period. Some incidents involved several victims.[15]
Fortify Rights met a local physician in December 2016 in Cox’s Bazar who had treated 13 Rohingya women and girls who survived rape and sexual violence in villages in Maungdaw township between October and December 2016. When Fortify Rights met him again in March 2017, he had treated more than 60 Rohingya women and girls, ages 13 to 30, for rape and sexual violence.
Rohingya women and girls told Human Rights Watch they had been afraid of rape for many months prior to these events, and had often experienced sexual harassment and assault from security forces and civilians aligned with those forces as part of their lives beforehand.
Women continued to suffer even after reaching Bangladesh. Human Rights Watch spoke to 10 women who continued to experience physical injuries, including vaginal tears, bleeding, or infections as a result of rape, without accessing care. Many women interviewed by Human Rights Watch and Fortify Rights reported symptoms of post-traumatic stress disorder (PTSD) or depression, including suicidal ideation. Despite donor governments’ important contributions to the humanitarian crisis, Rohingya rape survivors still lack access to long-term post-rape care.[16] Access to safe abortion care, including for rape survivors, has also been in short supply.[17]
Information on investigations, arrests, prosecutions, convictions, and sentences or disciplinary measures imposed on perpetrators, including members of the armed forces, found guilty of such crimes.
As best as we have been able to ascertain, there have been no meaningful, impartial investigations into sexual violence committed by Myanmar security forces, nor arrests, prosecutions, or convictions since the security force operations began in August 2017. On the contrary, Myanmar authorities have on multiple occasions offered wholesale denials of allegations of rape and sexual violence against Rohingya women and girls by state security forces. During an April 2018 meeting with UN Security Council members in Naypyidaw, Commander-in-Chief Sr. Gen. Min Aung Hlaing responded to concerns from the delegation about sexual violence by the armed forces by stating “that the representatives need to consider the fact that it is a nature to exaggerate the rape case any country does not accept,” according to his office.[18]
The findings of the final report of the Tatmadaw investigation team led by Lt. Gen. Aye Win concerning the conduct of the armed forces during the security clearance operations.
The Myanmar armed forces, or Tatmadaw, issued a report on Facebook on November 13, 2017, laying out the key findings from the investigation headed by Lt. Gen. Aye Win.[19] The report claims that state security forces committed no wrongdoing, including that “security forces did not commit shooting at innocent villagers and sexual violence and rape cases against women.” The wholesale denial contradicts considerable evidence to the contrary, including photographic evidence and testimony of thousands of witnesses, as well as satellite imagery collected by Human Rights Watch that shows the partial or complete destruction of 362 Rohingya villages.[20] The military has stated that “all the findings [from the Tatmadaw investigation] are true and correct” as recently as April 30.
The Myanmar government has established several separate commissions to investigate the patterns of violence beginning in Rakhine State in 2016, none of which have been credible or impartial.[21]
Whether instructions have been or are being issued to all branches of the state security forces that torture, gender-based violence including rape and other forms of sexual violence, expulsions, and other human rights violations are prohibited and that those responsible will be prosecuted and punished.
Myanmar authorities have repeatedly said that their forces are aware of and have followed Myanmar law, military codes of conduct, rules of engagement, and international law, and that forces will be held accountable for any breaches.
Our organizations are troubled by the authorities’ denials of attacks on women. In September, the Rakhine State border security minister denied the reports of sexual violence. “Where is the proof?” he said. “Look at those women who are making these claims—would anyone want to rape them?”[22] When Human Rights Watch, Fortify Rights, and others documented widespread rape of women and girls during military “clearance operations” in late 2016 in northern Rakhine State, the Myanmar government crudely rejected these allegations as “fake rape.”[23]
The gender-specific measures taken by the state party to rehabilitate and compensate Rohingya women and girls who are victims/survivors of such violence.
Our organizations are unaware of any such measures taken by the Myanmar government. Nor has the government claimed to have taken such action. Rather, the government has maintained its wholesale denials of any assault perpetrated against Rohingya women and girls. In a May 2018 statement on his meeting with the UN Security Council delegation, the military commander-in-chief claimed that “he heard refugees who fled to Bangladesh said they were raped by the Myanmar Tatmadaw.… If rape cases happen, the victims need to inform the committee [on Rakhine State, led by Aung San Suu Kyi] which will take action against all complaints.… However, there is no complaint till today.”[24]
The number of Rohingya women and girls who have died during childbirth.
We do not have estimates on how many women and girls died in childbirth.
In September 2017, Human Rights Watch documented three cases in which Myanmar security forces obstructed women from accessing emergency maternal health care. For example, one 40-year-old woman from Maungdaw township told Human Rights Watch that she knew of two neighbors who had died during childbirth after soldiers guarding her village would not allow them to leave the village to get medical help. Another woman, also from a village in Maungdaw township, said that her cousin died “on the road” because soldiers at a checkpoint refused to allow her to travel to a hospital. In a third example, highlighting restraints on Rohingya prior to the late 2017 “clearance operations,” a woman from Buthidaung township said her sister died in childbirth around May 2017: “My sister Mumena died giving birth.… We had to wait to get money for a bribe. We needed to get money by phone from outside and then get cash and then go bribe the military. Then we knew we would need to bribe the nurse too. But she died before we got the money.”
The “clearance operations” and violence against Rohingya in late 2017 made no exceptions for pregnant women, including those who were heavily pregnant during the attacks on villages. Women in late stages of pregnancy described fleeing from their homes—walking up and down steep hills slippery from monsoon rains, through rivers and dense vegetation, often with little to eat and on sore hips and swollen legs. Several interviewees told Human Rights Watch that six weeks after having fled, they still felt pain that they believed was linked to their forced migration. Human Rights Watch also interviewed three women who gave birth on their journey to Bangladesh without any medical support.
Human Rights Watch collected testimony from women and girls about their lack of access to sexual and reproductive health care in their home villages in Rakhine State. Of the 52 women Human Rights Watch interviewed, only two knew what a condom was, and only one had received prenatal care when she was pregnant. Humanitarian aid workers and Bangladeshi health officials working to provide health care to Rohingya women and girls who had arrived since August 2017 said that they generally found knowledge and experience of maternal and sexual care to be extremely low.
For many years, the Myanmar authorities subjected Rohingya women to a strict two-child policy. Rohingya found to have violated restrictions on childbirth were prosecuted under Criminal Law section 188, which could result in imprisonment for up to 10 years, fines, or both.[25] For several years, Rohingya women told Fortify Rights they feared repercussions from authorities for unauthorized childbirth. This fear, compounded by lack of access to safe, modern birth control options to prevent unwanted pregnancies, forced pregnant Rohingya women to either flee the country or resort to illegal and unsafe abortions. Clandestine efforts to terminate pregnancies rather than face government retaliation for unsanctioned childbirth resulted in death and harmful medical repercussions.[26] Abortions among Rohingya women in northern Rakhine State have traditionally been conducted using the “stick method,” whereby a stick is inserted into the uterus to terminate the pregnancy. Women report being afraid to seek necessary medical attention for subsequent health complications.
The number of clinics providing obstetric services and the ratio of doctors and midwives to the Rohingya population.
We do not have precise figures detailing the number of clinics and doctors available to provide obstetric services, or the ratios. However, several contextual features and figures should be considered with respect to the provision of, and access to, these services. The Rohingya population in Rakhine State has extremely poor access to health care of any kind in all parts of the state due to multiple factors, including the limited number of health care facilities and restrictions on freedom of movement that make routine access to any facilities or care difficult. Prior to the violence in northern Rakhine State beginning in October 2016, UN sources estimated that there was one physician per 75,000 persons and one physician per 83,000 persons in the Rohingya Muslim-majority townships of Buthidaung and Maungdaw, respectively, whereas in Sittwe, the Rakhine Buddhist-majority capital of Rakhine State, there was one physician for every 681 persons.[27] Additionally, Rohingya in northern Rakhine State have for years been subjected to a network and series of checkpoints where they were often forced to pay bribes, and frequently faced harassment or arbitrary detention, further decreasing the odds of their seeking or receiving health care.[28] Currently, humanitarian access to northern Rakhine State is severely restricted, including lifesaving medical care.
Throughout Rakhine State, access to health care is extremely limited, particularly for Rohingya. Outside of northern Rakhine State, the government confines more than 124,000 Rohingya to dozens of internally displaced persons (IDP) camps located in five townships. Access to health facilities for these displaced people is mostly limited to in-camp provisions by nongovernmental organizations whose access is needlessly restricted by the authorities. Rohingya in IDP camps in Sittwe township may be referred to Sittwe General Hospital, but only for life-threatening cases, and they are treated in a Muslim-only ward. Referrals are difficult to acquire, and Rohingya in these camps told Human Rights Watch and Fortify Rights in 2017 that they are required to pay for their own security and transportation to the hospital, which is cost prohibitive. Rohingya women in Sittwe township camps reported in 2017 to Fortify Rights that access to health care is the most common reason for taking out loans, and some Rohingya women explained that they elected not to seek medical help in order to avoid acquiring debt that they would be unable to pay off. [29]
In general, state security forces require all Rohingya confined to IDP camps to obtain permission to travel, and Rohingya must also pay a fee to authorities. Moreover, once permission is granted and a fee is paid, Rohingya can only travel in the presence of security forces, if the security agents on duty agree to escort them. This escort “service” is not considered a right but a privilege, and it is not always forthcoming—for example, the authorities only escort Rohingya in the morning or afternoon, regardless of the situation.[30] These restrictions have impacted women’s health and maternal mortality.
The number of Rohingya families displaced by the violence, disaggregated by sex, and measures taken by the government to ensure their voluntary and safe return, economic reintegration, and compensation for loss of land or property.
According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), an estimated 94,500 people were displaced in northern Rakhine State in October and November 2016, including more than 74,500 men, women, and children who fled to neighboring Bangladesh.[31] Since August 2017, more than 717,000 have fled to Bangladesh.[32] In addition, untold numbers of Rohingya have fled Myanmar steadily since 2012, including from violence, draconian restrictions, and avoidable deprivations in humanitarian aid. The UN Refugee Agency (UNHCR) estimated that from 2013 to 2015, more than 200,000 fled by sea toward Thailand and Malaysia from the Myanmar-Bangladesh border area. Many ended up in the custody of transnational human trafficking syndicates who held Rohingya women in conditions of enslavement and, in many cases, sold women and girls to the highest bidder.
The Myanmar government has announced plans for the repatriation of refugees, including hastily built processing centers and transit camps, yet has failed to establish any means of ensuring that returns are safe, dignified, and voluntary, as provided by international standards. Photos of the transit camps reveal buildings enclosed by high barbed-wire perimeter fencing.
The Myanmar government has a poor record of treating Rohingya displaced by past abuses or providing sustainable conditions for their return, such as in the case of the confinement of more than 124,000 Rohingya who fled ethnic cleansing in 2012 and remain in supposedly “temporary” camps in central Rakhine State. Humanitarian conditions in central and northern Rakhine State remain abysmal, with access for aid agencies reduced since August 2017, according to the UN and aid groups. Protecting returning refugees will not be possible without significant monitoring efforts by international observers. The Myanmar government has largely rejected international demands to allow free access for international aid agencies, the media, and rights observers, allowing only a small number of humanitarian agencies to deliver aid in northern Rakhine State, and denying genuine access to independent journalists and rights monitors.
We recommend that CEDAW call upon the government of Myanmar to:
Ensure unimpeded access for humanitarian aid organizations in Rakhine State, including organizations assisting sexual violence survivors and providing sexual and reproductive health care.
Ensure unimpeded access for journalists and human rights monitors in Rakhine State.
Cooperate fully with international investigations into alleged crimes in Rakhine State, including the UN Fact-Finding Mission established by the Human Rights Council.
Comply with the UN Security Council November Presidential Statement, which called on the Myanmar government to “implement measures in line with UN Security Council resolution 2106 (2013) to prevent and respond to incidents of sexual violence and … work with the Special Representative on Sexual Violence in Conflict.”
Immediately repeal all discriminatory laws, regulations, and local orders and cease practices that restrict the marriage, movement, childbirth, and livelihoods of Rohingya. Communicate to central, state, and local governments and the general public that the relevant authorities are to immediately cease all official and unofficial practices related to discriminatory restrictions against Rohingya.
Amend the 1982 Citizenship Law to end discriminatory provisions against Rohingya and reduce statelessness by providing Rohingya equal access to citizenship rights.
In accordance with the universal prohibition of racial discrimination, amend the 1982 Citizenship Law to use objective criteria to determine citizenship, such as descent, through which citizenship is passed through one parent who is a citizen or permanent resident.
Revise the Citizenship Law in accordance with article 7 of the Convention on the Rights of the Child to ensure that Rohingya children have the right to acquire a nationality where otherwise they would be stateless because they have no relevant links to another state.
Ensure full access to quality sexual and reproductive health care, including prenatal care and emergency obstetric care. This includes making sure such services are available and accessible to Rohingya populations and lifting restrictions on travel and movement.
Take appropriate measures and provide means to allow women victims and their families willing to return to their original homes to return in safety and with dignity, and take effective and adequate measures to rebuild the homes and basic infrastructure destroyed.
Facilitate the safe reintegration of women victims and their families. Special efforts should be made to ensure the full participation of returned victims and their families in the planning and management of resettlement, reintegration, and rehabilitation programs. Myanmar has the duty and responsibility to assist returned victims and their families to recover, to the extent possible, their property and possessions that they left behind or were dispossessed of. When recovery of such property and possessions is not possible, competent authorities should provide or assist these people in obtaining appropriate compensation or other forms of just reparation.
Repeal the four so-called race and religion protection laws, which are discriminatory and violate the rights of religious minorities and women.
Ensure that the draft Prevention and Protection of Violence Against Women Law includes measures for accountability for sexual violence, in particular conflict-related abuses, with provisions for military perpetrators to be tried in civilian courts. Publicize the draft law to solicit input from all civil society prior to its tabling in parliament.
[1] Human Rights Watch, “Crimes against Humanity by Burmese Security Forces against the Rohingya Muslim Population in Rakhine State since August 25, 2017,” September 26, 2017, https://www.hrw.org/sites/default/files/supporting_resources/burma_crime.... Human Rights Watch previously determined that the Myanmar government was responsible for crimes against humanity against the Rohingya in 2012 and 2016 when ethnic Rakhine villagers supported by Buddhist monks carried out killings with help from state security forces. Rohingya women and girls have been subjected to rape in past persecution by Myanmar authorities, for example in 1978 when attacks drove 200,000 Rohingya out of the country. See Human Rights Watch, “All You Can Do Is Pray”: Crimes against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State, April 2013, https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against....
[8] Those seven villages are Kyet Yoe Pyin, Pwint Hpyu Chaung, Kyar Goung Taung, Ngan Chaung, Yae Khat Chaung Gwa Son, Wapeik, and U Shey Kya villages. See Fortify Rights interviews with individuals 48, 04, 42, 41, 55, Cox’s Bazar District, Bangladesh, December 2016 and March 2017.
[9] Fortify Rights interviews with 19, 22, 37, 08, 11, 12, 25, 32, 30, 64, Cox’s Bazar District, Bangladesh, December 2016 and March 2017.
[10] Fortify Rights interviews with 1, 27, 35, 36, 54, Cox’s Bazar District, Bangladesh, December 2016.
[11] Fortify Rights interviews with 5-2, 9-2, 11-2, 23-2, 25-2, 33-2, 38-2, 43-2, 45-2, Cox’s Bazar District, Bangladesh, August 27 – September 4, 2017.
[21] On August 6, 2017, the National Investigation Commission on Rakhine State, headed by Vice President Myint Swe, held a news conference on its findings into alleged abuses against ethnic Rohingya, following a nine-month domestic inquiry. Myint Swe told journalists that there was no evidence of crimes against humanity or ethnic cleansing. However, in Human Rights Watch’s view, the 13-member commission used investigative methods that produced incomplete, inaccurate, and false information. A previous army-led investigation into allegations of abuses against Rohingya communities in late 2016 by Tatmadaw forces led by the same general, Lt. Gen. Aye Win, found that only two minor incidents of abuse occurred during security operations. One of the documented crimes was the theft of a motorbike. Human Rights Watch documented killings, sexual violence including rape, and destruction of civilian property in the attacks that forced tens of thousands of people to flee during the same period under investigation. An investigation into allegations of rape in Maungdaw township in Rakhine State by Myanmar authorities found that no rapes had taken place, but was conducted in a highly problematic way that does not meet basic standards and would not have provided opportunity for women and girls to speak freely. Myanmar authorities announced in April 2018 that seven soldiers had been sentenced to 10 years in prison for their involvement in the killing of 10 Rohingya men and boys in Inn Din village in Maungdaw, Rakhine State. Meanwhile, authorities have been destroying evidence of attacks against Rohingya villages. Since late 2017, the Myanmar government has cleared at least 60 villages of all structures and vegetation using heavy machinery. Most of these villages were among the 362 villages completely or partially destroyed by arson since August 25.
[30] Several Rohingya in the camps explained to Fortify Rights how they are unable to travel anywhere in the evening. For example, a resident in Dar Pai camp said: “After the conflict of 2012, if anyone has an emergency case in the nighttime, then there is nowhere for us to get treatment during the nighttime. We cannot go outside in the nighttime.” Fortify Rights interview with 136, Sittwe township, Rakhine State, September 2, 2015.
(Geneva) – Governments, employers, and workers from around the world will meet beginning May 28, 2018, to discuss a proposed international treaty on violence and harassment in the workplace, Human Rights Watch said today. Human Rights Watch has issued a 16-page report outlining key issues in advance of the International Labour Organization (ILO) conference, scheduled through June 8, in Geneva.
The report sets out research on violence and harassment at work, particularly for domestic workers, garment workers, fishers, farm workers, and migrant workers. It also highlights examples of good government practices and includes recommendations for essential elements to a proposed international ILO convention and for ending violence and harassment in the workplace.
“The ‘Me Too’ movement has highlighted pervasive gender-based violence from the most well-known and powerful industries to the most marginalized and invisible sectors,” said Rothna Begum, Middle East women’s rights researcher at Human Rights Watch. “Countries can help set things right by adopting a global binding standard to prevent and respond to violence and harassment at work.”
The World Bank’s “Women, Business and the Law 2018” report found that 59 out of 189 countries whose economies were studied had no specific legal provisions covering sexual harassment in employment. More broadly, the ILO has noted that there are many gaps in legal protections relating to violence and harassment in the workplace. They include a lack of coherent laws, a lack of coverage in laws and policies for workers most exposed to violence, and an overly narrow definition of “workplace” in existing laws and regulations.
“The ILO is presenting countries a unique opportunity to help end all forms of violence and harassment in the workplace,” Begum said. “Governments, employers, and workers at the ILO conference should move to support a global treaty expected to be ready for adoption next year.”
Members of civil society organizations chant slogans during a protest to condemn the killing of 27-year-old woman, Farkhunda, who was beaten with sticks and set on fire by a crowd of men in central Kabul in broad daylight on Thursday, in Kabul March 24, 2015.
It seemed like a breakthrough. In 2009, when then-President Hamid Karzai signed Afghanistan’s Law on the Elimination of Violence Against Women (EVAW Law), women’s rights activists celebrated a hard-won victory. They looked to a future where Afghan women and girls—about 87 percent of whom experience abuse in their lifetimes—would finally see justice.
But a United Nations report this week confirms what activists have known for years—that violence against women is still largely ignored by the Afghan criminal justice system. A young woman, “Soraya,” recently told Human Rights Watch that after her husband attacked her with a knife, and her father-in-law raped her, she went to the police. When she tried to file charges, an officer told her, “We are not going to register your case—it is not important enough. You should resolve this with your family.”
UN researchers reviewed 237 cases of women and girls who sought justice, and found that Soraya’s experience was typical--most cases never reached a court. Instead, authorities routinely turned victims away or referred them to—and pressured them to accept—mediation. Mediation is used—in clear violation of the EVAW Law—even when women suffered crimes such as rape, acid attacks, and forced prostitution.
The UN also reviewed 280 murders of women, including so-called “honor killings.” Only 50 cases led to convictions, and the vast majority were never heard by the courts; some of these cases were likely resolved through mediation.
Mediation does not provide justice to female victims of serious crimes. At best, it offers victims an often-empty promise from her abuser not to repeat the crime. At worst, mediators themselves inflict abuse, for example by ordering girls or women to be given as compensation for murder, forcing women and girls to marry men who raped them, or excusing murder in the name of “honor.”
Despite promising to adopt a “zero tolerance” policy toward violence against women, current President Ashraf Ghani has not done so. This became clear in 2015 when a young woman, Farkhunda Malikzada, was beaten to death by a mob in Kabul after being falsely accused of burning the Quran. Ghani’s government not only let most of her murderers escape justice, but also ignored public demands for more action to combat violence against women. Ghani should direct Afghanistan’s police and prosecutors to prosecute cases diligently, and also discipline or fire officials who treat victims the way the police treated Soraya. He has done neither.
Afghanistan’s women still have a long hard fight ahead of them.
We write in advance of the 70th Session of the Committee on the Elimination of Discrimination against Women and its review of the State of Palestine’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This submission addresses articles 1, 2, 3, 5, 7, 10, 12, 15, and 16 of the convention.
This submission is based on information contained in publications by Human Rights Watch and the Women’s Centre for Legal Aid and Counselling (WCLAC) and first-hand interviews with affected women, rights groups and other experts.[1]
Introduction
Palestine acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in April 2014 without reservations or declarations, the only state in the Middle East and North Africa region to do so. Women’s rights groups have called for the Palestinian Authority (PA) to publish CEDAW in its Official Gazette, which would make it binding as domestic law. The State of Palestine has not ratified the Optional Protocol to the CEDAW, an important accountability mechanism.
We note that this will be the first review of the State of Palestine by any UN human rights treaty body. With that in mind we urge the Committee to make clear that following ratification the CEDAW treaty applies throughout the territory of the State of Palestine. We also urge the Committee in its review to consider the current reality of governmental authority in this territory, including the Palestinian Authority (PA), Hamas in Gaza, and Israel as the occupying power, and apply the Convention in a way that maximizes its use to protect the rights of women throughout the territory of the State of Palestine. For the purposes of this submission in assessing the State of Palestine’s compliance with obligations under the Convention, we review the record of the PA in parts of the West Bank under its control and the de facto Hamas-led government in Gaza.
In 1995, the Oslo Accords between Israel and the PA, divided the West Bank (excluding East Jerusalem) into three administrative areas – A, B, and C. The PA has civil and administrative control over Area A, and civil control over Area B. Israeli military retains exclusive control over Area C, constituting about 60 percent of the West Bank. Israel applies Israeli civil law in East Jerusalem, though it remains occupied territory under international law. In 2005, Israel unilaterally disengaged from the Gaza Strip. However, Israel still controls Gaza’s borders, airspace and sea and access to resources, medical supplies, food, water and electricity. As such, Israel still retains effective control over Gaza.
We urge the Committee to carefully consider the severe impact of the ongoing Israeli occupation of Palestinian territory since 1967, including the illegal annexation of East Jerusalem and blockade of the Gaza Strip since 2007. Systematic abuses associated with Israel’s 51-year occupation, fundamentally undermine the rights of Palestinian women in the West Bank and Gaza.[2] The UN Special Rapporteur on violence against women noted in her 2017 report that “the occupation is a real obstacle to the State’s [of Palestine] due diligence obligation to prevent violence against women in areas where it does not have full jurisdiction, because of the fragmentation of the areas under different control and the political divide between the Gaza de facto authority and the Government of the State of Palestine.”[3]
Laws in the West Bank and the Gaza include a combination of unified laws promulgated by the Palestinian Legislative Council (PLC) and ratified by the president. If no unified law has been issued, existing Jordanian, Egyptian, and former British Mandate laws still apply. The Jordanian Penal Code No. (16) of 1960 (“1960 Penal Code”) and the Jordanian Personal Status Law (“JPSL”) No. (16) of 1976 are enforced in the West Bank, while the British Mandate Criminal Code Ordinance No. (74) of 1936 and the Egyptian Family Rights Law (“EFRL”) No. (303) of 1954 are enforced in Gaza. For Christians, there are a separate set of codified family laws as promulgated by the particular sect to which they belong.
Since the full PLC has not convened since 2006, the Palestinian president has issued presidential decrees in accordance with article 43 of the Basic Law until the PLC reconvenes and can review all such legislation. Some presidential decrees have included amendments to Gaza’s laws, but Hamas, as the de facto authority there, has not applied them and instead issued separate decrees.
Discrimination in Marriage, Divorce, and Decisions Concerning Children (CEDAW articles 1, 2, 13, 15 and 16)
Personal status laws in Palestine, pursuant to which religious courts adjudicate family law matters, discriminate against women in a range of matters. The two laws that apply to Muslims are the Jordanian Personal Status Law No. (16) of 1976 (“JPSL”) enforced in the West Bank, and the Egyptian Family Rights Law (“EFRL”) No. (303) of 1954 enforced in Gaza.
Both Islamic family laws discriminate against women in marriage, divorce, decisions concerning children, and inheritance. Under these laws, men can have four wives, while women cannot marry without a male guardian’s permission. Only women who have previously married or women who obtain court approval can marry without a male guardian’s permission.[4] The laws also require women to obey their husbands—including where the husbands change their residence or forbid them from working—in return for their entitlements to maintenance and accommodation from their husbands.[5]
Men have a unilateral right to divorce, while women must either ask the husband to divorce them in return for a financial consideration (through a process known as khul’) or apply to the courts for divorce on specific grounds.[6] For instance, women may seek a divorce on the basis of “dispute and discord” (JPSL in the West Bank) or “harm” (EFRL in Gaza).[7] However, this requires that the spouses undergo a mandatory mediation process, where reconciliation is the preferred outcome. In the West Bank, even if a wife claims domestic violence, the court is required to attempt reconciliation, and should these attempts fail, turn the matter to arbiters in the Family Council Unit (FCU) who must likewise attempt reconciliation. If reconciliation is unsuccessful, then the judge will direct an arbitrator to review the case, where divorce may be recommended. This process can take around a year or longer to complete but can be faster depending on the judge.
Human Rights Watch spoke to “Aisha,” whose name was changed for security reasons, a 30-year-old woman in Nablus who filed for divorce in 2016 after years of alleged domestic violence. She said the judge had not yet approved the divorce at the time of the interview in April 2018, and has tried to reconcile her with her husband.[8]
Christian women also face discrimination in divorce under family law provisions of the various denominations of Christianity in Palestine, each of which has a separate court. The Greek Orthodox Church allows divorce but requires women to appear before its court in Jerusalem, and it can take three to four years which most women cannot afford. Women from other Christian denominations have no option but temporary or permanent separation. Christian women may seek an annulment of a marriage under limited circumstances, however this procedure in practice is also lengthy and costly.
The 2004 Law on the Palestinian Child provides that the state, including the courts, should take the best interests of the child into account in all its actions.[9] But the Islamic personal status laws do not make the best interests of the child the primary concern when determining which parent the child should live with and which guardianship rights each parent should have. Such decisions also discriminate against women.
In cases of divorce, mothers are provided residency (custody) of children until they reach a certain age when custody reverts to the father, unless a judge extends it for the benefit of the child. In the West Bank, women retain custody of boys until they are 9, and girls until they are 11 years of age.[10] The child can be automatically removed from the custody of the mother if the mother remarries, but not the father.[11] In Gaza, women retain custody of girls until they reach nine, and boys until they reach seven years.[12] In some cases, when mothers claimed that that the father had abused their child during custody hearings, judges have dismissed such claims rather than investigating them.
Under both laws, fathers solely retain all guardianship rights even when the child is officially living with the mother. Where the father is absent or passed away, then the guardianship of his children passes to the paternal grandfather, and then other male relatives in a prescribed order. In March 2018, the Council of Ministers in the West Bank issued a decision to allow women who have custody of their children to open bank accounts for their children, transfer their children to different schools, and apply for their passports.[13] However, as this decision did not change the rule that fathers retain guardianship rights, women who have custody of their children still face a number of obstacles. A woman is not allowed to manage her child’s inheritance if her husband dies. Instead, a male relative from the deceased husband’s family will take over the management of the child’s inheritance which can impact child maintenance. As guardians, a father can withdraw money from a child’s bank account opened by the mother even if the child lives with the mother, but a mother cannot do the same if the child lives with the father.[14] In the West Bank, a woman needs the permission of her child’s guardian (usually the father) if she wishes to travel abroad with her child.[15]
Child Marriage (CEDAW Article 16(2))
The Palestinian Child Law of 2004 sets the age of majority at 18.[16] However, in the West Bank, the JPSL provides that a girl may be married at 14.5 years old and a boy at 15.5. In Gaza, the EFRL sets the age of marriage at 18 for a male and 17 for a female. Sharia court judges in both the West Bank and Gaza also have the right to allow the marriage of a minor if they believe it is in the best interest of the child.
The government noted in its state report that there is legislation in force that penalizes anyone who marries or helps conduct a marriage ceremony for a girl under 15 years of age with imprisonment of up to 2 years.[17] We are not aware of any cases where an individual has been prosecuted or convicted under this law. According to the Palestinian Central Bureau of Statistics (PCBS), in 2018, child marriage reached 20.5 percent among females and one percent among males of the total married population in Palestine. They further noted that by the end of 2016, 19.9 percent of the total married population in West Bank, and 21.6 percent of the total married population in Gaza had been married before the age of 18.[18]
Girls and women in many countries around the world have told Human Rights Watch that marrying early meant that they lost control over their lives, including the ability to decide whether and when to bear children, that it had cut short their education, and were subject to domestic violence.[19]
Rape and Sexual violence (CEDAW articles 1, 2, 3, 12, 15, and 16)
The 1960 Penal Code, which applies in the West Bank, defines rape in a limited way, as “forced sexual relations with a female who is not his wife,” thus explicitly excluding marital rape.[20]
Dareen Salhieh, chief prosecutor of the Family Protection Unit in the Public Prosecution, told Human Rights Watch that as the law excludes marital rape, they can only try and prosecute the physical violence that accompanies it where there are resulting visible injuries.[21] The penalties for physical assault that causes minor injuries are much lower than for rape.
In Gaza, Suheir al-Baba from the Women’s Affairs Center told Human Rights Watch that in most cases of sexual violence within marriage, the cases are resolved through “reconciliation or tribal committees,” because they are considered “secrets” between the husband and wife.[22]
The 1960 Penal Code also does not explicitly criminalize sexual violence in the family. It criminalizes incest, but imposes penalties on both members of the incestuous relationship failing to take into account the power dynamics such as when the case involves a child who may be unaware that they are a victim of sexual violence.[23] The provision also can be used to prosecute women and girl victims of sexual violence within the family. Moreover, only male family members up to the fourth degree of kinship, who may be the perpetrators of abuse, are granted the right to file incest charges on behalf of minors.[24]
Furthermore, women and men who have consensual sexual relations outside of marriage can face prosecution, which can deter rape or sexual violence victims from reporting such crimes. The 1960 Penal Code criminalizes consensual sexual relations and adultery. Prosecutions of adultery can only take place after a spouse files a complaint against their husband or wife. Unmarried women, but not men, also can also be prosecuted for having a consensual relationship outside of marriage if their guardian files a complaint.[25] Dareen Salhieh noted that the prosecution unit does investigate complaints of adultery to ensure that a husband does not file a complaint in bad faith to victimize his wife.[26]
Due to the stigma of sexual violence, women and girls who report rape or sexual violence within the family can be seen as “unmarriageable” and are at high risk of further abuse and even murder by family members. In some cases, marriage to their assaulter is considered a solution to cover up such abuses, as was provided for in article 308 of the 1960 Penal Code in the West Bank, which allowed alleged rapists to escape prosecution and convicted rapists to avoid imprisonment if they married their victims. For instance, in April 2001, following a decision by the Palestinian Appeal Court in Ramallah, the First Instance Court in Bethlehem applied article 308 and suspended their rape sentence, after the perpetrator produced a marriage certificate showing that he had married the victim.[27] It is not clear how many alleged or convicted rapists have been able to escape prosecution or imprisonment under article 308.
In a positive step, on March 14, 2018, the Palestinian president, Mahmoud Abbas, signed Law no. 5 of 2018, which repealed article 308 of the 1960 Penal Code enforced in the West Bank.
While no such law is in effect in Gaza, women’s rights activists noted that in some cases of alleged rape, families resolve it amongst themselves by agreeing to marry the alleged rapist and victim. Ghada Naeem, a lawyer at the Center’s for Women’s Legal Research, Consulting and Protection, told Human Rights Watch, that in some cases where the alleged rape is reported to the police, officials try to resolve the issue with the families instead of investigating and prosecuting.[28] Suheir al-Baba from the Women’s Affairs Center told Human Rights Watch that many women often do not report sexual violence to official institutions for fear of reprisal.[29] Unlike the West Bank, the civil police in Gaza do not have family protection units that deal with cases of gender-based violence.
While recognizing that the violence is often perpetrated by non-state actors, the State of Palestine bears legal obligations to act with due diligence to protect all women from violence, to abolish social attitudes and cultural practices based on stereotyped roles about men and women and to ensure non-discrimination based on gender.
Children Born Out of Wedlock and Criminalization of Abortion (CEDAW articles 12 and 16)
The 1960 Penal Code enforced in the West Bank and the 1936 Criminal Code enforced in Gaza both criminalize abortion. Under article 321 of the 1960 Penal Code, women can be imprisoned for 3-6 years for having an abortion. In addition, anyone who supports the abortion process, for example a doctor, may be imprisoned for 1-3 years under article 322. Abortion is criminalized regardless of the circumstances of the pregnancy, and there are no exceptions in cases of rape, incest or danger to the life of the pregnant woman. Women can receive reduced sentences for an illegal abortion under the 1960 Penal Code if they cite “honor” as the reason.[30]
There are no policies or procedures that women can refer to in case of rape in order to obtain an abortion. In practice, in rare cases, the mufti in the West Bank may allow abortions in situations of rape or incest, or if the mother has a disability or her life is at risk. However, in the rare case that the mufti allows an abortion, a doctor cannot be forced to perform the procedure. Dareen Salhieh, the chief prosecutor in the West Bank, told Human Rights Watch that prosecutors obtained permission for seven women to have abortions in 2017, all in cases in which the women alleged that the pregnancy was a result of rape or incest and they were in the early stages of pregnancy.[31]
Palestinian authorities require a marriage certificate for women to give birth in a hospital and to register births. In the West Bank, where pregnant woman outside of wedlock approach the hospital, the hospital will refer the case to the Ministry of Social Development.[32] If the mother states that she wants to keep the child, then the Ministry assesses her social and economic capability, and the safety of both the child and the mother, before allowing her to keep the child. If she does not meet the criteria, then the child is sent to a state-run care institution from which they can be taken into foster care by a family.
Children born out of wedlock are provided names (first, middle, and surname) by the state but are not given a full family name. They are not allowed to take an existing family name including their mothers or of their foster family, and the mother’s name and ID number is noted in the child’s registration documents. The lack of a family name exposes the children, and the mothers who keep their children, to stigma, and has implications in terms of inheritance too. This affected 27 children in the Social Development Ministry’s care in the West Bank as of April 2018, according to WCLAC. In Gaza, authorities add the name mawla (meaning “in custody of “) to the child’s name before their given surname instead of “bin” (meaning ‘son of’ in Arabic). Adoption is not permitted in Palestine.
The head of one shelter for victims of violence in the West Bank told Human Rights Watch that a 22-year-old woman who came to the shelter six months pregnant married the father to help register the child under the father’s family name, only to divorce him a week later.
Unless authorities provide safe, legal abortions and the equal registration of children born outside of wedlock, families may continue to try to force women and girls to marry their alleged rapists or men with whom they have had extramarital sex.
Inadequate Protections for Domestic Violence (articles 2, 3 and 16)
Palestine does not have a domestic violence law, which makes it difficult to adequately protect survivors or prosecute abusers. The Palestinian Central Bureau of Statistics 2011 national survey, which surveyed 5,811 households on gender-based violence, found that 30 percent of married women respondents in the West Bank and 51 percent in Gaza said they had been exposed to at least one form of violence—such as physical, sexual, psychological and/or economic violence-- by their husbands. Less than one percent said they sought police help.[33]
Women’s rights groups have pushed for a domestic violence law since 2006. The Ministerial Harmonization Committee in the West Bank is reviewing a draft Family Protection Law. Women’s rights groups in Palestine, including WCLAC (which specializes in protections for women victims of violence), have repeatedly commented on the bill, including the most recent draft, but are yet to hear whether their comments to the latest draft have been considered and incorporated.
The draft has a number of positive provisions, such as creating emergency protection orders (also known as restraining orders) to prohibit contact between the accused and the victim, including removing the accused from the home; criminalizing forms of violence such as forced marriage; increasing penalties for physical violence; and charging the police and family protection units with accepting complaints, investigating, and assisting and protecting survivors.
However, the bill does not explicitly set out the state’s key obligations to prevent violence, protect survivors, and prosecute abusers. It does not explicitly criminalize marital rape, leaves the definition of sexual assault vague, and fails to include specific guidelines on the penalties for sexual assault. The draft bill also does not include unmarried partners within its definition of the “family,” such as couples that are engaged to marry. The bill also does not specify the funding arrangements for enforcement of its protection provisions.
Palestinian authorities also have failed to provide sufficient shelters for victims of domestic violence. The government operates only one shelter in Gaza and one in the West Bank (in Bethlehem), though it provides limited funding to an NGO-run shelter in Nablus. WCLAC also set up an additional emergency shelter in the West Bank. The shelters do not accept all women and girls. The shelter in Gaza, for example, does not accept women and girls who may have transgressed social mores. Such women and girls whose families may perceive them as having committed “moral” transgressions are at heightened risk of “honor” violence by their families and are most in need for shelter to protect them.
Women who experience domestic violence in East Jerusalem, which Israel militarily occupies and annexed in 1967, but which no other country recognizes, face particular barriers. Oheila Shomar, director of Sawa Organization, a non-governmental organization that supports survivors of domestic and sexual violence, told Human Rights Watch that: “Many Palestinians don’t want to cooperate [with the Israeli police] and fear what will happen to them and how the [Israeli] police will use their situation to harm the family if they file a complaint. If a woman tries to go to the [Israeli] police, the family and community stigmatize her for going to the occupation and harming her family.”[34] Often WCLAC encourages women victims of violence to file their complaints to the family units of the Palestinian police in the suburbs of Jerusalem to refer those cases to shelters in the West Bank, or refer them directly to Palestinian NGO shelters inside Israel.
Reduced Sentences in So-Called ’Honor’ Killings (articles 2, 3, and 16)
The West Bank’s Public Prosecution 2017 annual report states that 11 out of 14 murders of women in 2017 in the West Bank—excluding Area C and East Jerusalem—were committed by a relative. WCLAC documented 23 killings of Palestinian women and girls in 2016, and 28 killings in 2017 across Palestinian territory, many in instances where the killer claimed the need to protect their family “honor” as a defense.[35] Women Media and Development (TAM) said in its 2016 report that many killings actually related to inheritance, revenge or other reasons, but that the killers claimed they related to family honor to receive a lighter sentence.[36]
Dareen Salhieh, chief prosecutor, told Human Rights Watch that while police and prosecutors in the West Bank investigated and referred cases of killings of women by their husbands or families to courts, the judges often reduced the sentences of defendants who had been found guilty. A 2014 Office of the UN High Commissioner for Human Rights study found, in a random sample of cases between 1993 and 2013, that judges in first instance courts reduced sentences on claims of “honor” killings in 29 out of 37 rulings.[37]
Several reforms in the past few years have attempted to tackle judges’ use of various legal provisions to reduce sentences on the pretext of “honor.” However, according to WCLAC, there is still a notable increase in the occurrence of killings of women in the West Bank and Gaza.
In 2011, President Abbas issued a decree abolishing article 340 of the 1960 Penal Code, which allowed a sentence reduction for a man convicted of killing or attacking his wife or female relative if he alleged that he came upon her in the act of adultery or extra-marital sex. In 2014, the president issued a decree amending article 98 of the 1960 Penal Code, which allowed reduced sentences for those who committed a crime in a “state of great fury” [or “fit of fury”] resulting from an unlawful and dangerous act by the victim.” The amendment prohibited the use of this defense “against a female on the grounds of honor.” The decree similarly amended article 18 of the 1936 Penal Code, which applies to Gaza.
However, the term “honor” is not defined in the law, leaving wide discretion to judges and the possibility that discriminatory societal norms will influence court decisions. In addition, the usage of the term “honor” as is now referred to in the amended article 98 is problematic as, in contexts such as these, it is exclusively associated with women and women’s sexual behavior and relations and is used to subjugate and control women.
Moreover, another loophole remained. Judges in the West Bank were often using article 99 of the 1960 Penal Code to reduce sentences by half in cases in which the victim’s family–which can also be the killer’s family–waives its right to seek prosecution.[38] Article 99 provided reduced sentences for mitigating factors but does not set out what they are. In practice, courts consider that victims and their families have a right to waive the prosecution. A 2014 Office of the UN High Commissioner for Human Rights study found that in 14 out of 37 rulings from the random sample of cases between 1993 to 2013, judges in first instance courts invoked article 99 to reduce sentences for killings of women where families withdrew their right to seek prosecution.[39]
In a positive step, the President issued Law No. (5) of 2018 which essentially closes this loophole by amending article 99 in the 1960 Penal Code to prohibit judges from reducing sentences for serious crimes against women and children, such as murder. But, the new amendments do not apply to pending court cases of violence against women that occurred before the law was passed in March 2018.
The UN Special Rapporteur on violence against women said in her 2017 report that she was informed that perpetrators often also use article 62 of the 1960 Penal Code, which allows parents to “discipline” their children by general custom, as a defense against charges that they abused or killed their daughters.[40]
Sexual Orientation, Gender Identity (Articles 2 and 5)
Palestinians who are lesbian, gay, bisexual, or transgender (LGBT) suffer widespread discrimination and abuse both in public and in family settings. Human Rights Watch interviewed 12 Palestinian women who self-identify as lesbian, bisexual or queer.[41]
Gaza’s 1936 Criminal Code punishes “carnal knowledge” under section 152(2) - understood to apply to consensual same-sex conduct - by up to 10 years in prison.[42] Penal codes that criminalize consensual same-sex conduct using vague and undefined concepts such as “unnatural carnal knowledge” or “unnatural offences” violate the rights to privacy and non-discrimination.
While the 1960 Penal Code applicable in the West Bank does not prohibit adult consensual same-sex conduct, the 2003 Palestine draft penal code contains provisions that criminalize adult consensual same sex conduct.[43]
Nevertheless, lesbian, bisexual and queer Palestinian women told Human Rights Watch that the combination of the profoundly traditionalist and socially conservative Palestinian context has an insidious effect on their individual self-expression. All the interviewees said that they either felt they had little choice but to adopt self-censoring behavior, or worse, deny their sexual orientation or gender identity to avoid suspicion by family members and the communities in which they live. Lesbian, bisexual and queer women Human Rights Watch interviewed reported suffering from familial, community, and social refusal to allow them to make autonomous choices about their sexuality. They said they are all fearful of the impact of disclosure of their sexual orientation to the family’s reputation and honor. In instances where a person has disclosed her sexual orientation to family members, interviewees said this has often been followed by violence.
For instance, a 24-year-old lesbian told Human Rights Watch described how when she disclosed her sexual orientation to her family, her father became angry. “He was yelling and beating me for hours, then decided to lock me up in the house for a month, with no access to the internet or phone,” she said.[44] Several women also reported fear of being threatened or coerced to marry men or endure ostracization by family members and the community.
Several lesbian and queer women Human Rights Watch interviewed said they have experienced sexual violence or threats of sexual violence because of their sexual orientation. For instance, a 22-year-old lesbian from East Jerusalem said she disclosed her sexual orientation to a male friend, strongly believing that she was safe with him. However, she said he proceeded to rape her, with the aim of correcting her “deviant” lesbian sexual orientation.[45] She did not report the incident to the police because she believed that she would have to also disclose her sexual orientation and this would bring shame and dishonor to her family.[46]
As noted, the State of Palestine bears legal obligations to act with due diligence to protect women from violence, including from non-state actors, to abolish stereotypes and discriminatory attitudes surrounding sexual orientation and gender identity and expression.
Recommendations
We encourage the Committee to state clearly that the CEDAW treaty, as ratified by the State of Palestine without reservations, applies throughout the territory of the State of Palestine
We encourage the Committee to make the following recommendations to the Palestinian government:
Publish the CEDAW text in the Official Gazette, which would make it binding as domestic law.
Ratify the Optional Protocol to the CEDAW as an accountability tool under international human rights law.
Allow the CEDAW Committee to conduct an exceptional review after two years instead of the standard four-year periodic review, in order to allow for monitoring of the drafting and enactment of the Family Protection Law.
Amend the Muslim and Christian personal status laws to ensure that women have equal rights with men in relation to marriage, divorce, residency (custody) and guardianship of children, and inheritance.
Raise the minimum age of marriage to 18.
Allow women to give birth in a hospital and register their children without requiring a marriage certificate, allow them to register their children under a family name of their choice, and ensure that children do not suffer discrimination due to the parents’ marital status.
Amend the 1960 Penal Code enforced in the West Bank and the 1936 Penal Code enforced in Gaza to decriminalize abortion and ensure safe, legal access to abortion.
Amend the 1960 Penal Code to:
define rape as a physical invasion of a sexual nature of any part of the body of the victim with an object or sexual organ, without consent or under coercive circumstances and explicitly criminalize marital rape. Indicate that sexual assault includes non-penetrative forms of assault. Amend the entire chapter on sexual crimes as sexual offences against persons instead of “offences against public morals and ethics.”
Repeal the provision in article 62 that allows parents to “discipline” their children by general custom.
Repeal the provision in article 286 that grants only male family members the right to file incest charges on behalf of minors.
Criminalize sexual violence within the family.
Repeal article 284 prohibiting zina (sexual intercourse outside of marriage).
Amend and expeditiously pass the draft Family Protection Law to ensure full protection of survivors including explicitly setting out the government’s obligations to prevent violence, protect survivors, and prosecute abusers; revising the definition of the “family” in the draft law to include non-marital partners; defining marital rape, sexual violence and setting out penalties for it; and funding for enforcement.
Monitor convictions and sentencing in cases of gender-based violence, including murders, to ensure that judges are not using legal provisions to reduce penalties in such cases.
Invest in gender-sensitive training for judges, particularly regarding violence against women.
Condemn publicly all threats and acts of violence against lesbian, bisexual and queer women, including violence perpetrated by family members.
Adopt comprehensive legislation that prohibits all forms of discrimination and violence on the grounds of sexual orientation and gender identity.
Repeal section 152(2) of the British Mandate Criminal Code Ordinance No. 74 of 1936 which criminalizes “carnal knowledge.”
Take measures to abolish social attitudes and cultural practices based on stereotyped roles about men and women and to ensure non-discrimination on the basis of sexual orientation and gender identity and expression.
[14] Human Rights Watch interview with Sabah Salameh, coordinator of the Muntada Forum to Combat Violence against Women—representing a coalition of 17 non-governmental organizations, Ramallah, April 11, 2018.
[15] Jordanian Personal Status Law No. (16) of 1976, art. 166.
[16] Palestinian Child Law No. (7) of 2004, art. 1.
[36] Chemonics International in partnership with Women Media and Development (TAM) “Comprehensive Analysis for Gender Based Violence and the Status of the National Referral System in the West Bank,” August 2016, http://www.awrad.org/files/server/NRS%20report%20english%202016.pdf (accessed June 5, 2018).
[39] Office of the UN High Commissioner for Human Rights, “Murder of Women in Palestine under the pretext of Honour Legislation and Jurisprudence Analytical Study,” April 2014.
[40] Report of the Special Rapporteur on violence against women, its causes and consequences, “Mission to the Occupied Palestinian Territory/State of Palestine,” U.N. Doc. A/HRC/35/30/Add.2, June 8, 2017.
[41] In February and April 2018, Human Rights Watch interviewed 40 individuals in total who self-identify as lesbian, gay, bisexual and transgender (LGBT), in Ramallah, Nablus, Bethlehem and East Jerusalem. This is an ongoing in-depth research conducted in collaboration with al-Qaws for Sexual and Gender Diversity in Palestinian Society.
[42] British Criminal Code Ordinance No.74 of 1936, section 152(2) on sexual and unnatural offences provides “Any person who – a) has carnal knowledge of any person against the order of nature; or b) has carnal knowledge of an animal; or c) or permits a male person to have carnal knowledge of him or her against the order of nature is guilty of a felony, and is liable to imprisonment for ten years,” available at https://www.nevo.co.il/law_html/law21/PG-e-0633.pdf (accessed June 5, 2018).
[44] Human Rights Watch interview, February 9, 2018
[45] Human Rights Watch interview, February 13, 2018
[46] Report of the Special Rapporteur on violence against women, its causes and consequences, “Mission to the Occupied Palestinian Territory/State of Palestine,” UN Doc. A/HRC/35/30, June 8, 2017, para 26.
A new policy in Afghanistan promises to bar government health workers from engaging in the abusive practice of forcing women and girls to undergo invasive and medically meaningless vaginal and anal exams to determine whether they are “virgins.” The policy was announced by the Ministry of Public Health in July.
“Virginity examinations” are a routine part of criminal proceedings in Afghanistan. When women or girls are accused of “moral crimes” such as sex outside of marriage, police, prosecutors, and judges regularly send them to government doctors. After examining them, the doctors submit reports reaching conclusions about whether they are “virgins,” also often drawing more detailed – and often damning – conclusions about their sexual histories. These reports are used in court as evidence and have led to long prison terms for many women.
These examinations are invasive, humiliating, conducted without meaningful – or sometimes any – consent, and can constitute sexual assault. There is also another problem: they are scientifically invalid.
Many people mistakenly believe that virginity can be determined because the hymen is broken when a woman or girl has sexual intercourse for the first time. This is simply not true. Some girls are born without a hymen. Hymens often break during daily non-sexual activities, and some hymens remain intact after sexual intercourse. The World Health Organization has said virginity exams have no scientific validity and that health workers should never conduct them.
Ending “virginity exams” in Afghanistan will take genuine political will by the Afghan government – something too often absent in the past. An earlier order by President Ashraf Ghani to cease the exams was widely ignored. For change to happen, health workers need to be obligated to comply, and police, prosecutors, and judges will have to accept that exams will not be conducted and the reports will not be available as evidence.
Ending “virginity exams” should be part of broader reform regarding the treatment of women in the justice system. The government should decriminalize consensual sex between adults and ensure that the justice system distinguishes between consensual sex and rape. Too often in Afghanistan, rape victims are treated as criminals. The 2009 Law on the Elimination of Violence Against Women was designed to protect women, but has largely been a broken promise.
Wholesale reform is needed. But ending “virginity exams” would be a good start.
The Indian government’s plan to develop a national registry of sexual offenders is raising a slew of concerns, from data breaches to violations of privacy protections, including for individuals who were never convicted of a sexual offense.
Schoolgirls participate in a protest rally against the rape of two teenage girls in Chatra and Pakur districts of Jharkhand state, in Ranchi, India May 8, 2018.
The proposed national database – the government issued a call for bids in May – will store the name, photo, fingerprints, and personal details of all arrested, charged, and convicted of sexual offenses, including children. The information on convicted offenders will be public while law enforcement agencies will have access to the rest. It will categorize the individuals as “low,” “moderate,” or “high risk.”
Whether a person gets added to the sex registry can depend on laws that are archaic and open to misuse to arbitrarily classify suspects.
Those deemed “low danger” and “not likely to engage in criminal sexual conduct” will include everyone arrested, charged, and convicted of “Technical Rape,” a term often used by law enforcement to describe consensual sexual activity involving a girl under 18 years old. This means a boy who has consensual sex could be recorded in the database if someone, including the parents of the girl, filed criminal charges. This tier would also include section 377 of the Indian Penal Code, which criminalizes adult consensual same-sex relations, whose constitutionality is currently before the Supreme Court.
The record on those deemed “a moderate danger” would include those arrested, charged, or convicted under sections 67 and 67A of the Information Technology Act, which criminalize the publication and distribution of obscene and sexually explicit material, vague legal provisions that are repeatedly misused by police.
If the rape or sexual assault victim is under 12 years of age, an arrested, charged, or convicted offender will be categorized as “serious danger” likely to continue to “engage in criminal sexual conduct.”
A data breach or even rumors of possible inclusion in the registry is especially dangerous at a time when vigilante violence is on the rise. At least 24 people have been killed across India over rumors of kidnapping children in the past six months, while several have been attacked for inter-religious or inter-caste consensual relationships. This has been a problem elsewhere: in the United States there have been several instances of vigilante violence, including killings, of sex offenders listed in public registries, and in the UK in 2001 when a newspaper published details of convicted sexual offenders.
There is no silver bullet that can fix the complex problem of sexual violence in India. But the government should focus on supporting sexual violence survivors to ensure they can report crimes and receive justice without being stigmatized and threatened, and ensuring a system that provides them protection, legal aid, and adequate medical care. A poorly designed registry with inadequate safeguards will do little to advance change.
Co-Chairmen Representatives McGovern and Hultgren and members of the commission, thank you for the opportunity to testify at today’s hearing on human rights and the use of sexual violence by the Burmese military against ethnic minorities in Burma.
Human Rights Watch has conducted research on the human rights situation in Burma for more than 25 years, focusing on abuses against political dissidents and media, as well as laws-of-war violations in the armed conflicts in ethnic minority areas. Human Rights Watch has documented numerous abuses associated with Burma’s military operations. We have frequently documented the systematic use of rape and other sexual violence by the Tatmadaw, or Burmese armed forces, not just in the most recent violence against the Rohingya but against other ethnic groups as well. In our interviews with victims, we have witnessed their pain, shame, and distress – injuries that have corroded their personal sense of self as well as the strength of their communities.
Widespread sexual violence perpetrated by Burmese soldiers has been a hallmark of the culture of abuse and impunity in Burma’s decades-long civil wars with its ethnic groups. Despite promises made during the country’s democratic transition since 2011, the Tatmadaw continues to shield its soldiers from prosecution for crimes committed in military operations including in Kachin, Shan, and Rakhine States. Military rape is linked to other abuses, including extrajudicial killings, torture, arson, land confiscation, and denial of humanitarian aid. We have also documented repeatedly how the authorities have, through intimidation and flat denial, stopped efforts by groups and individuals, including brave women, to achieve recognition and justice for survivors of rape or to end abusive practices of gang rape and the toxicity of fear of rape and shame that spreads across communities.
The apparently hopeless situation facing Rohingya survivors of brutal gang rape by Burmese security forces, now in the miserable sanctuary of Bangladesh refugee camps, has been brought upon countless other victims over several decades, among many of Burma’s ethnic minorities. For victims, the attacks cannot be forgotten, but within Burma no realistic path to justice or clear plan to hold military perpetrators accountable exists.
In September and October 2017, I spent two weeks in Rohingya refugee camps in Bangladesh. I interviewed 52 Rohingya women and girls, including 29 survivors of rape, who had fled to Bangladesh to escape the Burmese military’s campaign of ethnic cleansing that began on August 25, 2017. The rape survivors I spoke with were from 19 different villages in Burma’s Rakhine State, mostly in northern Buthidaung and Maungdaw townships.
In every case described to Human Rights Watch, the perpetrators were uniformed members of security forces. All but one of the rapes reported to Human Rights Watch were gang rapes, involving two or more perpetrators, but usually larger groups of soldiers who also sometimes stripped, beat, bit, laughed at, and taunted their victims. Women described soldiers in boots kicking them and beating them with rifles. In eight cases, women and girls reported being raped by five or more soldiers. Fifteen-year-old Hala Sadak, from Maungdaw township, said that large areas of scarring on her right leg and knee were from where soldiers had stripped her naked and then dragged her from her home to a nearby tree where, she estimates, about 10 men raped her from behind.
Human Rights Watch documented six cases where Burmese military units committed “mass rape” of villagers, such as in Tula Toli village, officially known as Min Gyi, in Maungdaw township. In these instances, survivors said that soldiers gathered women and girls together in groups and then gang raped or raped them, sometimes then locking them in shelters that they set on fire.
Burmese security forces raped and sexually assaulted women and girls both during the abusive “clearance operations” beginning late August 2017, as well as in the weeks prior to these major attacks, sometimes after repeated harassment. Rohingya women and girls told Human Rights Watch they had been afraid of rape for many months prior to these events, and had often experienced sexual harassment and assault from security forces and civilians aligned with those forces as part of their everyday lives.
As with other survivors of Tatmadaw rape over decades, Rohingya rape survivors spoke of enduring numerous abuses at once. In addition to being raped, women described with great distress seeing security forces murder their young children or elderly parents. Many reported witnessing cruelty toward those especially vulnerable, such as a soldier killing a 5-year-old girl who could not keep pace with her fleeing family by smashing her skull with the butt of his gun, or security forces pushing older people who could not flee back into burning houses. Two women we spoke to were forced to choose which child to save; one rape victim had to leave one behind her in a burning house.
Shocking, but none of this should have surprised us. In late 2016 and early 2017, before the August attacks began, Human Rights Watch had already begun documenting the role of sexual violence in the military’s Rakhine State operations. In interviews with 40 Rohingya refugees who had fled Rakhine State in late 2016, Human Rights Watch documented 28 incidents of rape and other sexual assault by Burmese military and border guards, some of which involved several victims. Many survivors reported being insulted and threatened on an ethnic or religious basis during the assaults. In the rain-drenched Bangladesh refugee camps, I interviewed two Rohingya women who had been raped twice by soldiers, once in early 2017 and then again as operations intensified in the end of August of that year.
Anyone in this room who has heard a survivor describe a rape endured will know how terrible each individual story is. But we have been hearing about military rape of women from Burma’s ethnic minorities for years. The absence of any accountability for such atrocities enables it to continue.
In 2011, Kachin civilians described to Human Rights Watch how Burmese army soldiers attacked Kachin villages, razed homes, pillaged properties, and forced the displacement of tens of thousands of people. My colleagues documented mass rape by soldiers as well as gang rape of individuals, and collected other reporting of the same by brave partner organizations. This was far from the first time Human Rights Watch had interviewed Kachin survivors of rape. In 1994, we also interviewed survivors who had fled the army’s burning of their villages, mass displacement, forced labor, and killings in the 1970s, 1980s, and 1990s.
In 2005, we documented that violations of international human rights and humanitarian law were carried out by the Tatmadaw in eastern Karen State, which runs along Thailand’s northwest border. Our partners documented widespread and continuing sexual violence against ethnic women in Karen State by the Burmese military. The Karen Women’s Organization (KWO) documented 125 cases of sexual violence committed by military troops in Karen State from 1988 until 2004, half committed by high-ranking military officers. According to the KWO report, 40 percent of the cases were gang rapes. In 28 percent, women were raped and then killed. The Women’s League of Burma reported rapes and gang rapes in 2003 and 2004 in all provinces with significant ethnic minority populations, as well as in central Burma. The report implicated senior and junior military personnel as being perpetrators or complicit in the majority of documented rapes. The women’s organizations subsequently reported intimidation of survivors and witnesses.
In 1990, we documented ongoing human rights abuses and repression by the Tatmadaw in Burma’s western Chin State, which borders India. Again, the pall of fear pulled over communities lasted much longer and affected many more than survivors of brutal rape. At that time, Chin women and girls told us how they lived in fear of rape and other forms of sexual violence by Tatmadaw soldiers.
In mid-2016, we reported on how women have been sidelined from the peace process initiated to resolve the longstanding armed conflicts in ethnic areas, despite many years of human rights and peace activism by women, and the disproportionate impact of conflict-related sexual violence on women. As the FY19 bill continues to move, the United States Congress should help ensure that women, including survivors, have a political voice, and, together with allies such as the United Nations, should design long-term programs to assist survivors, in contrast to the Trump administration’s determination to cut aid.
Earlier this week, despite significant bipartisan support in both houses of Congress, the FY19 defense authorization bill conferees failed to include language in the final bill that would have authorized targeted, appropriate measures against key individuals who bear responsibility for atrocities, including sexual and gender-based violence. This body – the House of Representatives – voted overwhelmingly (382-30) to bar US assistance or cooperation with Burma’s military until those responsible for human rights crimes committed in Rakhine State and elsewhere were held accountable. Disappointingly, the Senate did not concur. But even without this law, the administration still has a number of options and authorities to impose targeted sanctions – and it should waste no time in doing so.
We understand the Treasury Department continues to delay the imposition of sanctions on a list provided by the State Department for unclear reasons. Last December, the Trump administration sanctioned one individual – Maung Maung Soe, the Burmese army’s former chief of Western Command – for his role in overseeing “the military operation in Burma’s Rakhine State responsible for widespread human rights abuse against Rohingya civilians.” The imposition of this sanction was an important step, but there are many more individuals who should be sanctioned for their roles in atrocity crimes in Rakhine State, including those currently under consideration by the Treasury Department. For its part, Congress will now have to pressure the administration in other ways, including by ensuring that sexual and gender-based violence is included in discussions about possible individuals to sanction.
As you may know, the administration is conducting an extensive and intensive investigation into alleged crimes against the Rohingya, documenting allegations of murder, rape, torture, and other offenses that could, down the road, be used to prosecute members of Burma’s military for atrocity crimes, including as a matter of command responsibility. At a recent Senate hearing, Secretary of State Mike Pompeo committed publicly to releasing the findings of this report and acknowledged the importance of doing so. We believe that a public release is essential to help craft a clear and compelling narrative about the widespread abuses against the Rohingya people – documented by a wide range of organizations and institutions. This is particularly important as the military continues to deny that atrocities occurred. We hope the release of this report will trigger an adequate response, including increased bilateral engagement from the State Department and USAID to assist Rohingya refugees, and more diplomatic pressure at the UN Security Council to move the dial on accountability.
The US government, which has contributed significant development aid to Burma throughout its democratic transition, should make it explicitly clear that unchecked sexual violence and other abuses by the Burmese military are unacceptable, and that the absence of any steps toward accountability has impaired what was until recently a growing US-Burma relationship. To that end, this Congress should ensure, particularly as the FY19 appropriations process continues to move forward, that there are adequate funds to support the health needs – both physical and psychosocial – of the women and girls impacted by Burmese military violence.
Shiori Ito, a journalist, who says was raped by an colleague in 2015, talks about her ordeal and the need for more support for the victims in Japan, during an interview in Tokyo.
Mika Kobayashi was on her way home one day when men forced her into a van and raped her. She went public about the sexual assault eight years later, in 2008, in a book that chronicled the incident, and the nightmare that followed.
Catherine Jane Fisher, an Australian, was raped in Japan in 2002 by a member of the US military. Dismayed by the police handling of the case, which she said made her feel like a criminal, Fisher took matters into her own hands by filing a lawsuit against the rapist and going public about what happened to her.
These are two brave women who broke Japan's silence on rape. More recently, another woman, 28-year-old Shiori Ito, did the same.
"Japan's Secret Shame", a documentary aired last month by the BBC, focuses on Ito's allegation that an acquaintance raped her in 2015. Although Kobayashi, Fisher and Ito's experiences span 15 years, their stories are alarmingly similar. All three describe abusive police investigation techniques, failure to take sexual violence seriously, lack of support for victims, and at times, society's unwillingness to understand their pain.
A particularly horrifying detail is that Japanese police, as part of their investigation, sometimes force victims to reenact the assault with a life-size doll, while being observed and questioned by officers. This "investigation technique" is abusive, unnecessary, and retraumatising for victims.
Over 95 percent of incidents of sexual violence in Japan are not reported to the police according to government figures, and for good reason. Discussing rape is perceived as "embarrassing" in Japan and public opinion often sways towards blaming the victim rather than the attacker.
Until last year's legal reforms, Japanese law defined rape solely as involving violent penetration of a woman's vagina by a man's penis. This prevented many female rape victims and all men and boys who had been raped from seeking justice.
In 2017, Japan's parliament passed reforms to the rape law, expanding the definition to include forced oral and anal penetration, lengthening sentences, and permitting prosecutions to move forward without the victim's consent. These were positive steps, but major problems remain, both with the law and with how it is carried out.
The Japanese government shouldn't wait for victims to come forth demanding change, but should move ahead now to reform what is still, despite the recent improvements, a hopelessly antiquated - and sexist - system for dealing with sexual violence.
The law still permits rape charges to be raised only when "violence or intimidation" was used, except in cases of guardians abusing children. This requirement ignores the fact that rape often occurs without the use of obvious force or threat - for example, when someone is too afraid or shocked to resist, is incapacitated due to drugs or alcohol, or there is a lopsided power dynamic. Requiring proof of "violence or intimidation" excludes many cases that should be treated as rape and forces prosecutors to prove an element that should not be required and is more difficult to prove than lack of consent.
Countries around the world, prompted by evolving societal perceptions of sexual violence, are changing legal definitions to reflect an understanding of rape that is based on lack of consent, not the use of force.
The Japanese government should also remove this requirement and take further measures to train police officers and prosecutors to handle rape cases in appropriate and humane ways, including ending all use of re-enactments involving the victim.
The government should also guarantee all victims have access to 24-hour hotlines and one-stop-centresacross Japan and ensure immediate and compassionate collection of forensic evidence based on professional standards and procedures. The government also needs to ensure all victims have access to female police officers with special training to deal with sexual violence who work in partnership with social workers.
The government should also continue to improve its victim assistance services such as screening and treatment for sexually transmitted diseases, HIV prevention medications, pregnancy testing, and abortion services. Victims also need legal assistance and longer-term access to counselling and peer support.
These are neither big nor new demands.
Some have been made for years by the United Nations expert committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), an international treaty Japan ratified in 1985. Some have been recommended by the Japan Federation of Bar Associations. Some have even been raised by the research committee of the Japanese government's Gender Equality Bureau Cabinet Office.
The Japanese government should show these brave women, and the world, that their voices won't go unheard.
People chant slogans and hold signs to condemn the rape and killing of 7-year-old girl Zainab Ansari in Kasur, during a protest in Peshawar, Pakistan January 11, 2018.
A fact long-hidden in Pakistan, shrouded in the silence of stigma, is now official. A government report has found that child sexual abuse is disturbingly common in Pakistan, with 141 cases reported in the city of Lahore alone since January 2018. Police say that at least 77 girls and 79 boys were raped or sexually assaulted.
The report found that none of the suspects had yet been convicted. That’s sadly unsurprising given that the criminal justice system in Pakistan, from the time police receive a complaint until trials are completed, is not fit for credibly and expeditiously investigating crimes, and fairly prosecuting those responsible. Poorly trained police often refuse to register complaints or investigate. Instead, they subject the victim to mistreatment and humiliation. And nowhere is this more obvious than in cases of sexual assault.
Several child rape cases have shocked Pakistan in recent months, including the rape and murder of 7-year-old Zainab Ansari in Kasur, Punjab province, the rape and murder of a 5-year-old girl in Mardan, Khyber Pakhtunkhwa province, and the rape of a 6-year-old girl in Sukkur, Sindh province.
But instead of improving protection services and initiating criminal justice system reforms, authorities are promoting populist measures, like pursuing the death penalty or even public executions.
That will not solve the problem. For example, the Supreme Court recently upheld the conviction of Imran Ali, who was charged with the rape and murder of at least nine girls. He was able to carry out his crime spree for so long because the police had failed to act promptly on previous complaints against him.
The government should do better and provide more training and resources to ensure that the police, doctors, court officials, social workers, and child welfare authorities respond properly to allegations of child sexual abuse. Pakistan’s children deserve a safe childhood.
Nepalese women protest against what they say is an increase in violence against women and demanding that the government implement stronger laws, in Kathmandu on January 3, 2013.
Nepalis have long complained of police apathy in cases of sexual violence. An average of three rape cases are reported across the country every day, but the real number is likely much higher. Rape is often not reported due to social stigma.
In 2013, after the rape of a migrant worker by a policeman, Nepalis launched a movement called Occupy Baluwatar, named for the neighborhood where the prime minister's residence is located, demanding reforms to the criminal justice system. The protest lasted for more than 100 days. The government promised action, and set up a committee to look into legal reform. But there has been little progress.
In 2015, when the father of a six-year-old girl who had been brutally raped complained, the administrative officer apparently said he should have taken better care of his daughter. The child later died from her injuries.
The government of Prime Minister Khadga Prasad Oli has a majority in parliament and the mandate to press for change. He should use it.
This means better training for police, judicial officials, and medical professionals on how to properly handle rape cases. Effective laws to protect victims and witnesses should be enacted. Confidential, toll-free helplines should be set up to support women and children. The government should expand existing services for survivors of violence and provide specialized help for those who have lived through sexual violence.
But taking rape seriously should also be part of a wider move to end discrimination against women and girls in Nepal. The government should stop denying some women their citizenship rights, implement a long-delayed plan to end child marriage, get more girls into school and keep them there, and enforce the law against menstrual segregation, when women and girls are banished to remote huts during their periods, sometimes with deadly results.
Much more needs to be done if Nepali women and girls are to feel not only safe, but also respected too.
![Shiori Ito, a journalist, who says was raped by an colleague in 2015, talks about her ordeal and the need for more support for the victims in Japan, during an interview in Tokyo [Mari Yamaguchi/AP]](http://www.hrw.org/sites/default/files/styles/16%3A9_946x534/public/multimedia_images_2018/201807asia_japan_shiori_ito.jpg?itok=4JkcI_uZ)
