Rape constitutes a crime under international humanitarian law as well as under the criminal laws of the various republics.It is also part of the substantive applicable law of the statute of the International Tribunal where it is referred to in several articles.

Unlike most codified penal laws in the world, in international humanitarian law rape is not precisely defined. But on the basis of the contemporary criminal laws of the world’s major criminal justice systems, the Commission considers rape to be a crime of violence of a sexual nature against the person.

This characteristic of violence of a sexual nature also applies to other forms of sexual assault against women, men *18 and children, *19 when these activities are performed under coercion or threat of force and include sexual mutilation. *20

It should be noted that irrespective of their definition, acts of sexual assault against women, men and children are prohibited by international humanitarian law through normative provisions prohibiting violence against the physical integrity and dignity of the person. Therefore, rape and other sexual assaults are covered in pari materia.

Even though sexual assaults imply the commission of the crime by a given perpetrator, persons who do not perform the act but are indirectly involved in the commission of this crime, like decision-makers and superiors, are also responsible under the Genocide Convention (art. III) and general norms of command responsibility (see paras. 55 – 60). So SPDC Generals are responsible for the rapes committed by their soldiers.

Violations of the laws and customs of war applicable to conflicts of an international character are contained in a number of international instruments. The Hague Convention (IV) Respecting the Laws and Customs of War on Land deals with the question of sexual assaults in article 46: “Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected.”

The Fourth Geneva Convention explicitly prohibits rape in article 27. The Commission deems that article 147 of the same Convention on “grave breaches” includes rape and other sexual assaults as constituting “torture or inhumane treatment” and that they are also prohibited because they are among those acts “willfully causing great suffering or serious injury to body or health”.

Furthermore, Protocol I to the Geneva Conventions contains in article 76 an express prohibition of rape and other sexual assaults. In addition, such practices which are based on racial discrimination also constitute “grave breaches” under article 85, paragraph 4 of Protocol I, which holds that “inhuman and degrading practices involving outrage upon personal dignity, based on racial discrimination” are prohibited.

It is also considered that article 27 of the Fourth Geneva Convention constitutes part of customary international law, thus also establishing a basis for universal jurisdiction. Furthermore, it should be noted with respect to Protocol I, that the provisions of article 85, when violated on the basis of racial discrimination, also constitute a violation of customary international law.

Under all of these provisions, a single act of rape or sexual assault constitutes a war crime. As a “grave breach”, this type of violation falls under universal jurisdiction.

The perpetrator, however, must be a person who is linked to one of the parties to the conflict and the victim must be linked to another party to the conflict or be a citizen of a neutral State. It is also held that article 76 of Protocol I is applicable to victims who are not protected by other provisions of the four Geneva Conventions.
With respect to provisions applicable to conflicts of a non-international character, common article 3 to the four Geneva Conventions applies, as does article 4, paragraph 2 of Protocol II.

Both of these provisions include a prohibition against rape and other sexual assaults in so far as they constitute wilful injury to the person. A single act is enough to constitute such a violation when the perpetrator is linked to one of the parties to the conflict and the victim is linked to another party to the conflict or is a citizen of a neutral State. (Good enough to prosecute SPDC Generals.)

Under Protocol II, such prohibited acts constitute a violation when the conflict takes place “in the territory of a High Contracting Party between its armed forces and dissident forces or other organized groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (art. 1, para. 1).

Under the Genocide Convention, sexual assault and rape are included within the meaning of article II of the Convention, provided that the prohibited conduct is committed as part of an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

1.wilful killing,
2.torture,
3.rape or
4.inhuman treatment of protected persons, including biological experiments, wilfully causing great suffering or serious injury to body or health,
5.and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Under article 85, paragraph 3, of Additional Protocol I, the following acts constitute grave breaches if committed wilfully, in violation of the relevant provisions of the Protocol, and causing death or serious injury to body or health:
“(a) Making the civilian population or individual civilians the object of attack;
“(b) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects …;
Additional Protocol I also provides, in article 85, paragraph 4 that certain acts are grave breaches when committed wilfully and in violation of the Conventions or Protocol, namely:
“(c) Practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;
“(d) Making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, … the object of attack, causing as a result extensive destruction thereof, where there is no evidence of (prior use of such objects in support of the adverse party’s military effort), and when such (places) are not located in the immediate proximity of military objectives;
“(e) Depriving any person protected by the Conventions (or the Protocol) of fair and regular trial.”
It must be noted that the statute of the International Tribunal refers to grave breaches of the Geneva Conventions of 1949 in article 2 and to violations of the laws or customs of war in article 3. It does not refer explicitly to grave breaches of Additional Protocol I. Many of the grave breaches of Additional Protocol I also constitute violations of the laws and customs of war.

Convention on the Prevention and Punishment of the Crime of Genocide
The above was adopted by the UN General Assembly in December 1948 and came into effect in January 1951. All participating countries are required to prevent and punish actions of genocide in war and peacetime.
Determining what historical events constitute a genocide and which are merely criminal or inhuman behavior is not a clear-cut matter. Furthermore, in nearly every case where accusations of genocide have circulated, partisans of various sides have fiercely disputed the interpretation and details of the event, often to the point of promoting wildly different versions of the facts. An accusation of genocide is certainly not taken lightly and will almost always be controversial. The following list of alleged genocides should be understood in this context and not regarded as the final word on these subjects.

The scope of international law

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system.

As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rightsthe treatment of aliens, the rights of refugees, international crimes, nationality problems and human rights generally.

It further includes the important functions of the maintenance of international peace and security,
arms control, the specific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners.
Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal.

Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, “international law cannot exist in isolation from the political factors operating in the sphere of international relations”.

Where there are breaches of the law international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter.
Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11
Enforcement by international bodies.

Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the “Uniting for Peace” resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permanent member failed to act. (This clause may be useful for us as China and Russa would definetly try to block the Security Council.)

It could call for other collective measures (such as economic sanctions) given a situation constituted the milder “threat to the Peace”.
The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions.

They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend “Pacific Resolution of Disputes.” Such resolutions are not binding under international law, though they usually are expressive of the council’s convictions.

In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to “threats to Peace, Breaches of the Peace and Acts of Aggression,” and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council’s broad powers under Article 24(2), which states that “in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations”.

The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

According to President of Genocide Watch, Gregory Stanton, genocide develops in eight stages.

1. Classification People are divided into “us and them” by ethnicity, race, religion, or nationality:
Myanmar Military divided all the people of Myanmar as Military/ex-Military/Family and relatives of Military. Vs Non Military ordinary people.
Myanmar Military labeled: Muslims as Kala/Kala Dain, Mi Masit Pha Masit (Bustards).
Myanmar Chinese and Myanmar Muslim as Mixed blooded/guest citizens/not loyal to the country/ illegal immigrants etc.
Rohingya as illegal immigrants from Bengladesh.
NLD and all the opposition members as traitors, servants of Western colonists.
Daw Aung San Suu Kyi as untrustworthy Myanmar Military labeled Muslims as , foreigner’s wife, agent of colonists etc
Chin, Karen, Mon, Shan, Kachin and almost all other Ethnic Minorities as rebels, separatists, those who want to divide the country etc The main preventive measure at this early stage is to develop universalistic institutions that transcend… divisions, and that actively promote tolerance and understanding, and that promote classifications that transcend the divisions.
2. Symbolization “When combined with hatred, symbols may be forced upon unwilling members of pariah groups…”
NLD, Opposition, Rebels, Ethnic Minorities as Non Bama, Muslims, Christians, Chinese, even Daw Aung San Suu Kyi and Kha Maut is symbolized for hatred and annihilation. “To combat symbolization, hate symbols can be legally forbidden… as can hate speech”.
3.Dehumanization “Dehumanization overcomes the normal human revulsion against murder.”
Rape, torture, porter, forced labour, imprisonment on trumpeted charges, forced recruitment of child soldiers etc by SPDC
One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder.
At this stage, hate propaganda in print and on hate radios is used to vilify the victim group. Hate radio stations should be shut down, and hate propaganda banned. Hate crimes and atrocities should be promptly punished. “Hate propaganda should be banned, hate crimes and atrocities should be promptly punished.”
4. Organization “Genocide is always organized, usually by the state, though sometimes informally. Special army units or militias are often trained and armed…” or by terrorist groups. Special army units or militias are often trained and armed. Plans are made for genocidal killings.
Myanmar Military, MI, BSI, Kyant Phut, Swan Arrshin etc.
“To combat this stage, membership in these militias should be outlawed.” Their leaders should be denied visas for foreign travel. The U.N. should impose arms embargoes on governments and relatives of Myanmar Military, MI, BSI, Kyant Phut , Swan Arrshin etc
5. Polarization “Hate groups broadcast polarizing propaganda…” Bill boards around the country, Government various media, pamphlets speeches of SPDC
Extremists drive the groups apart. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center “Prevention may mean security protection for moderate leaders or assistance to human rights groups…”
Assets of extremists may be seized, and visas for international travel denied to them. Coups de’tat by extremists should be opposed by international sanctions.
6. Identification “Victims are identified and separated out because of their ethnic or religious identity…” This is very obvious with the SPDC.
Death lists are drawn up. Members of victim groups are often segregated into ghettoes, forced into concentration camps, or confined to a famine-struck region and starved.
“At this stage, a Genocide Alert must be called…” If the political will of the U.S., NATO, and the U.N. Security Council can be mobilized, armed international intervention should be prepared or heavy assistance to the victim group in preparing for its self-defense. Otherwise, at least humanitarian assistance should be organized by the U.N. and private relief groups for the inevitable tide of refugees.
7. Extermination “It is “extermination” to the killers because they do not believe their victims to be fully human.” Extermination begins, and quickly becomes the mass killing legally called “genocide.”
When it is sponsored by the state, the armed forces often work with militias to do the killing.
The whole Myanmar/Burma is used as killing field. Even on the streets in the daylight they had shoot to kill the thousand of demonstrators including students. This was after the open threat or warning by their Supreme leader General Ne Win in his farewell speech. “At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection.”
The U.N. needs a Standing High Readiness Brigade or a permanent rapid reaction force, to intervene quickly when the U.N. Security Council calls it. For larger interventions, a multilateral force authorized by the U.N., led by NATO or a regional military power, should intervene. If the U.N. will not intervene directly, militarily powerful nations should provide the airlift, equipment, and financial means necessary for regional states to intervene with U.N. authorization. It is time to recognize that the law of humanitarian intervention transcends the interests of nation-states.
8. Denial “The perpetrators… deny that they committed any crimes…”
Asked any SPDC Generals, Myanmar Military they are willing to confirm and prove this fact of truth! Denial is the eighth stage that always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. “The response to denial is punishment by an international tribunal or national courts.”
Denial is the eighth stage that always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity, like Pol Pot or Idi Amin, unless they are captured and a tribunal is established to try them. “The response to denial is punishment by an international tribunal or national courts.”
There the evidence can be heard, and the perpetrators punished. Tribunals like the Yugoslav, Rwanda, or Sierra Leone Tribunals, an international tribunal to try the Khmer Rouge in Cambodia, and ultimately the International Criminal Court must be created. They may not deter the worst genocidal killers. But with the political will to arrest and prosecute them, some mass murderers may be brought to justice.