Hitting Headlines Event at the Leiden University College
Lecture on international humanitarian law (IHL) and accountability for violations of IHL with focus on Myanmar
EU Special Representative for Human Rights, Eamon Gilmore
30 September 2020
Good afternoon everyone,
Dear students of the Fortuna association, thank you for your kind invitation.
I am very delighted to have the opportunity to speak at Leiden University College today, within this webinar series on “current events hitting the headlines”.
It is great having the opportunity to talk to a University audience. As we celebrate the 75th Anniversary of the foundation of the United Nations, last week I was speaking on behalf of the EU at the UN General Assembly.
Today I will talk about International Humanitarian Law, international criminal justice with a focus on Myanmar.
Importance of a the rules of law, a rules-based order and multilateralism
The foundation of today’s world order was established in 1945, at the end of World War II and the UN Charter was adopted, aiming to “maintain international peace and security”. At the same time, the international human rights regime developed, forming part of the so-called rules-based international order.
It is also in the same period, the lengthy process of European integration was initiated by the founding fathers of the European Union, a Union “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”.
Today, the rules-based international order and the multilateral system are increasingly coming under threat. While the nature of the challenges that humanity faces has significantly changed, the role of multilateralism is still the same: to build and maintain a more just world.
We see blocking multilateral decisions, withdrawing unilaterally from institutions and agreements, refusing to accept international arbitration, practicing selective multilateralism, and also going bilateral when it is good for one’s own interests.
Populism is another major challenge to multilateralism. Populist leaders in a growing number of states advocate for political sovereignism, retreating from the liberal vision of the world as it developed after the Second World War.
Standing against this framework, the EU is multilateral by essence. For this reason, the EU stands firm in defending the multilateral system with the UN at its core. Despite the challenges of cultural and political relativism, the EU will continue to defend the universal principles on which it is founded, together with like-minded states and partners.
General on IHL and compliance with IHL
The EU has underlined that international law, including international humanitarian law, is one of the strongest tools the international community has for safeguarding the protection and dignity of all persons. The commitment to promoting IHL was expressly stated in the EU:s Global Strategy of 2016.
International humanitarian law or IHL or the laws of armed conflict is a set of rules aiming to limit the effects of armed conflict by protecting the most vulnerable categories of persons, namely those who are not or are no longer taking part in conflict, and by regulating the means and methods of warfare.
This set of rules defines, among others, the protection of wounded and sick, medical personnel, prisoners, civilians, including humanitarian workers.
At the core of IHL are the four Geneva Conventions of 1949 and their additional protocols from 1977. Although the rules and principles of IHL are universally accepted, the EU is seriously concerned about the growing number of deliberate violations of IHL. Better respect for IHL is essential for reducing negative humanitarian consequences and thereby improving the situation of people affected by armed conflicts.
Let me take some examples from today’s armed conflicts.
In all armed conflicts, civilians are paying the highest price, with deaths, injuries, hunger, sexual violence, displacement, and property damage, loss of livelihoods, disabilities and mental health illnesses.
It is estimated that a hundred years ago a vast majority all killed or injured in war were soldiers or combatants. Today is a vast majority of all casualties’ civilians.
For example, the use of explosive weapons in populated areas, including marketplaces and places of worship. According to UN Office for the Coordination of Humanitarian Affairs (OCHA) of all casualties in urban areas were more than 90 per cent civilians – over 20,000 in 2018 alone.
Protection of children and people living with disabilities
According to UNICEF, more than 22,000 civilians are killed or injured by explosive weapons and remnants of war, landmines and bombs every year and over half of the casualties are children. In Afghanistan, nearly one third of all civilian casualties were children.
In total, the UN confirmed more than 25,000 so called grave violations against children in 20 countries in 2019, including deaths, injuries, sexual violence, abductions, and the recruitment and use of children in hostilities, all in violation of human rights law and IHL. That is 70 grave violations against children every day.
Attacks on schools and medical facilities prevent children from accessing education and interrupt vital health services. The impacts of armed conflict and other forms of violence are particularly devastating for children.
When armed men on motorcycles tore up to a school in Béléhédé village in Burkina Faso in early 2018, panic ensued. “I was in class when the terrorists came. … They fired a shot, and we all fled to save ourselves,” said a 14-year-old student. “Afterwards, when we went back there, I saw they had burned the principal’s motorcycle… the [school’s] office… and the students’ notebooks.”
The school closed following the attack in 2018 and never reopened. When Human Rights Watch spoke with the student in February 2020, he had not yet stepped back inside a classroom. Like hundreds of thousands of students in Burkina Faso, the students education was cut short by the country’s steadily worsening armed conflict.
Human Rights Watch, Report “Their War Against Education” May 2020
Armed conflicts are especially hard on people living with disabilities and other vulnerable groups, and the consequences can be long lasting. An estimated one in five people living in conflict zones has a mental health disorder.
Hunger crises and starvation
Conflict also drives hunger crises. The vast majority of people facing hunger – 72 million people – are in just eight countries experiencing armed conflicts or humanitarian crises: Afghanistan, the Democratic Republic of Congo, Ethiopia, South Sudan, Sudan, Syria and Yemen. Yemen remain the world’s worst food crisis, with more than half the population – almost 16 million people – in urgent need of food and livelihood assistance. 
There are reports that parties to conflict deliberately used starvation as a method of warfare, despite specific prohibition under IHL, notably in the ongoing conflicts in Yemen, Syria and South Sudan. An analysis of these conflicts seems to show that starvation has re-appeared in modern warfare.
Attacks against health care and humanitarian workers
Health care continues to be under attack, in violation of IHL.
“They went through the rooms in the maternity, shooting women in their beds. It was methodical. Walls sprayed with bullets, blood on the floors in the rooms, vehicles burnt out and windows shot through.”
Frederic Bonnot Head of Programmes in Afghanistan, MSF, after the attack against a maternity hospital in Kabul run by MSF in May 2020.
Millions of lives are at risk by denying access to health care, vaccination campaigns and hindering the work against diseases such as Malaria and Covid-19. Hospitals, clinics and ambulances are hit with grenades, improvised explosive devices and heavy weapons, and health workers are threatened, injured and killed.
The World Health Organisation confirmed over 1000 attacks on health care in emergencies and armed conflicts in 2019. These attacks deny individuals of needed care, threaten health care personnel, and weaken health care systems. Afghanistan, Palestine, Libya, Syria, Yemen, Democratic Republic of Congo and Yemen were worst hit.
Humanitarian organisations and staff are at risk of being assaulted, shot and kidnapped. In 2018, 226 attacks in 35 countries against 400 humanitarian workers resulting in 131 killed and 130 kidnapped. National staff representing 85 per cent of the victims and 94 per cent of deaths. Male humanitarian workers represented the majority of victims, except in cases of sexual assault. Conflicts where most humanitarian workers were killed or injured are South Sudan, Mali, Afghanistan, Syria and Democratic Republic of Congo.
The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need. Humanitarian workers are civilians and have the right to be protected in armed conflicts.
Sexual and gender based violence (SGBV)
Sexual and gender based violence exists everywhere in the world, in armed conflict and other situations of violence women and girls face increased risks of sexual violence and other gender based crimes. In conflict-affected areas of South Sudan, up to 65 per cent of women and girls have experienced physical or sexual violence – double the global rate, according to UN Office for the Coordination of Humanitarian Affairs. In Libya, the overwhelming majority of female migrants and refugees reported either being raped by smugglers or traffickers or witnessing evidence of others being abused.
Rape and other forms of sexual violence, when committed in the context of an armed conflict either international or non-international, constitute violations under IHL. All parties to an armed conflict must abide by the prohibition of sexual violence. All states have an obligation to prosecute the perpetrators.
Accountability and the International Criminal Court
Let me now get over to accountability and specially the International Criminal Court.
The primary responsibility for ensuring accountability for violations of international law lies with states. The international community has since the Nurnberg tribunals after the Second World War established a number of ad-hoc tribunals for serious violations of international law, such as the ones for former Yugoslavia and Rwanda. It took some time though, until 1993 and 1994, respectively.
The Rome Statute was adopted in 1998 establishing the International Criminal Court or the ICC, which entered into force on 1 July 2002 and has to date 123 State Parties.
The ICC is an independent and permanent international court, based in The Hague, and tries individuals accused of genocide, crimes against humanity and war crimes and from 2018 the crime of aggression. The ICC is a jurisdiction of last resort; it does not replace national courts but complements them only if they are unable or unwilling to prosecute serious crimes. The jurisdiction of the ICC is not retroactive in respect that the ICC can only try crimes committed after the accession or ratification by a state to the Rome Statute.
The Prosecutor is conducting preliminary examinations in ten (10) countries, for example Nigeria, Palestine, Venezuela and Ukraine. Thirteen (13) situations are currently under investigation, including the situation for the Rohingyas, Libya, Mali, Georgia and Afghanistan.
Today the ICC is facing persistent external challenges, including sanctions by the United States, which attempts to undermine the international system of criminal justice by hindering the work of its core institutions.
The ICC is a key actor in the fight against impunity and part of the wider commitment to the rules-based international order. The EU is resolved to protect the integrity of the Rome Statute and the judicial independence of the Court.
The situation in Myanmar
Although the situation of human rights in Myanmar remains significantly better than during military times. It has gradually deteriorated during the civilian rule since 2015. After a promising start during and after the 2015 elections, Myanmar’s democratic transition was demaged by the Rohingya crisis in 2017.
Clashes between the Myanmar Armed Forces – Tatmadaw – and various ethnic armed organisations, such as the Arakan Army, escalated in 2019. This caused new population displacements, particularly in northern Shan and Rakhine States. A number of organisations alleged human rights abuses by both the Tatmadaw and ethnic armed groups in northern Shan State. UNICEF recorded 16 children killed and 36 seriously injured across the country in 2019 by landmines and explosive remnants of war.
The worsening circumstances in Rakhine State, due to rising clashes between the Arakan Army and the Tatmadaw, is of particular concern. In 2019, fighting spread to nine townships in Rakhine and to Paletwa township in Chin State, displacing 40,000 people.
Further human rights abuses were reported in Rakhine State, including killing of civilians, arbitrary arrests, torture and forced labour. Schools and cultural heritage sites (notably the ancient temples in Mrauk-U) were appropriated by the Tatmadaw for military purposes. Abuses committed by the Arakan Army were also recorded, including kidnapping. Citing increasing security concerns, in January 2019 the Rakhine State Government further restricted aid providers to urban centers only. The procedure for obtaining travel authorisation has become lengthier and more unpredictable.
The EU position and response
The EU’s main concerns include
- accountability for human rights and IHL violations,
- facilitating humanitarian access to and improving the conditions for IDPs in Rakhine, Kachin and Shan States;
- access to basic social services and education and livelihood;
- stepping up domestic efforts on and cooperating with all UN-mandated bodies, including the Special Rapporteur on the situation of human rights and the UN Independent Investigative Mechanism on Myanmar (IIMM).
In June 2019, I co-chaired the Fifth EU-Myanmar Human Rights Dialogue. The Dialogue took place in a friendly atmosphere and covered a wide range of issues, including the issues I just mentioned.
The EU reaffirmed its continuous strong support for Myanmar’s democratic transition, peace and national reconciliation process and inclusive socio-economic development. At the same time, both the EU and Myanmar agreed that this should go hand in hand with the strengthening of the rule of law and good governance, on the basis of shared values and international human rights standards.
The human rights dialogue offers an important platform for both sides to exchange experiences and to possibly strengthen cooperation in the area of human rights. In this regard, it was agreed to envisage further cooperation on existing and draft laws affecting freedom of expression and the fight against hate speech.
In conjunction with the Human Rights Dialogue, I met with the State Counsellor Aung San Suu Kyi and the Commander-in-Chief of the Myanmar Armed Forces Senior General Min Aung Hlaing.
Before visiting Myanmar I conducted a bilateral visit to Bangladesh, where I visited Cox’s Bazar refugee camp and met with representatives of the Rohingya community, the UN High Commissioner for Refugees field office, and the Refugee, Relief and Repatriation Commissioner. Cox’s Bazar refugee camp which is one of the largest in the world with almost one million inhabitants and I met with representatives of the Arakan Rohingya Society for Peace and Human Rights (self-organised camp governance structure, ARSPHR), focused primarily on the need for conditions in the Rakhine state to ensure their return and conditions in the camp.
Myanmar and international criminal justice including the ICC
Myanmar is subject to three international judicial processes for its treatment of its Rohingya population. The Gambia started proceedings against Myanmar before the International Court of Justice (ICJ), alleging violations of the Genocide Convention.
In Argentina, a group of NGO:s, submitted a lawsuit under the principle of ‘universal jurisdiction’, alleging ‘existential threat’ to the Rohingya by the Myanmar Government.
In November 2019, the ICC authorised the Prosecutor to proceed with an investigation for the alleged crimes in the situation in Bangladesh/Myanmar.
This authorisation follows the request submitted on in July 2019 by the Prosecutor to open an investigation into alleged crimes within the ICC’s jurisdiction committed against the Rohingya people from Myanmar.
As Myanmar is not a State Party to the ICC, the Court lacked jurisdiction over the crimes allegedly committed by the Myanmar authorities against the Rohingya. However, Bangladesh ratified the Rome Statute in 2010 therefore the ICC may exercise its jurisdiction over crimes listed in the Rome Statute committed when part of the criminal conduct takes place on the territory of Bangladesh from 1 June 2010 onwards. The investigation is still ongoing.
Also in other fora is the situation in Myanmar discussed. The UN established a Fact Finding Mission in 2017, which published its final report in October 2019, indicating that the 2017 operation had ‘genocidal intent’. The UN FFM handed over the collected evidence to the UN International Investigative Mechanism (IIMM), with the mandate to facilitate and expedite fair and independent criminal proceedings, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes. Neither the UN FFM nor the IIMM had or have access inside Myanmar.
Conclusion – What can be done? What can we do?
Widespread lack of compliance with IHL during many contemporary armed conflicts, and particularly deliberate breaches of IHL, is a matter of serious concern primarily for the victims but also for the international community and for a rule based international order. Domestic implementation of relevant international instruments plays a crucial role in fulfilling obligations under IHL and improving compliance.
Other preventive measures such as awareness raising, education and training in IHL for both military personnel and to the civilian population is needed.
In order to support and reinforce the EU’s role in this field, the EU Guidelines on promoting compliance with international humanitarian law were adopted by the Council in 2005, and updated in 2009. They provide both an overview of the means of action at the disposal of the EU in its relations with third countries and guidance for understanding IHL rules and principles, particularly for those working within and with the EU itself.
The third annual report of the Guidelines covering 2019 will soon be published. You will be able to find it on the European Union External Action Service website. The report describes what actions the EU has taken during 2019 to promote compliance with IHL, such as statements, political dialogues and demarches, cooperation with international organisations and other actors, restrictive measures, arms export and controls, crisis management operations and training and cooperation with international criminal tribunals.
The EU is the only regional organisation that has adopted guidelines on promoting compliance with IHL and provide a visible and practical sign of the EU’s commitment to IHL.
 The Crime of Starvation and Methods of Prosecution and Accountability, Global Rights Compliance (GRC) and the World Peace Foundation (WPF). https://reliefweb.int/sites/reliefweb.int/files/resources/Legal%20Paper%20Starvation.pdf
 ‘Caught in the Middle: Abuses Against Civilians Amid Conflict in Myanmar’s Northern Shan State’. Amnesty International, October 2019, https://www.amnesty.org/en/documents/asa16/1142/2019/en/42
 ‘No One Can Protect Us: War Crimes and Abuses in Myanmar’s Rakhine State’