Fundamental Constitutional Review Needed in Burma

On Sunday, 29 January 2012, Burmese opposition leader Aung San Suu Kyi called for reforms to the military drafted 2008 Burmese Constitution. The Nobel Laureate’s call highlights the fundamental and systemic obstacle that the constitution represents to democracy in Burma. The Global Justice Center has long noted that the 2008 Constitution not only undermines the prospects of any true democracy but also leads to the perpetuation of some of the world’s most heinous war crimes and human rights violations.

Unlike any other constitution in the world, the Burmese Constitution creates a bifurcated sovereignty. It ensures that the military is constitutionally autonomous from and supreme over the civilian government. Even if he is willing, the President, Thein Sein, cannot enforce any laws against the military. Furthermore; the constitution guarantees the military amnesty for all crimes – including the most heinous such as genocide, war crimes and crimes against humanity. It also ensures the perpetual dominance of the military by guaranteeing that 25% of the seats in Parliament are reserved solely for the military, while parading itself as a multi-party “democracy”.

This flawed constitution has dire and detrimental consequences. The bifurcation of sovereign power means that Burma cannot enforce or comply with international obligations including the Geneva Conventions, UN Security Council Resolutions and the Nuclear Non-Proliferation Treaty (NPT). To have a military, which is not legally accountable by any standards, obtain nuclear capabilities is a threat to global peace and security. Additionally, the clear lack of accountability, transparency, and legal autonomy of the military perpetuates genocide, war crimes, and crimes against humanity – all of which are punishable under international law. This means that the military’s targeted attacks against the ethnic minority civilians in regions such as the Kachin go un-checked, gross human rights violations are perpetuated and more fundamentally, justice is denied to victims of the armed conflict.

While the recent “democratization efforts” may be welcome, what Burma needs is not just change but radical change. At the most basic level, the 2008 Constitution serves to enshrine the military’s impunity for the worst crimes. If Burma is to achieve democracy, the rule of law and justice, fundamental constitutional review is certainly most needed.

For More Information:

Putting Democracy Out of Reach: How Burma’s New Government Violates the Law of Nations and Threatens Global Peace and Security

Burma’s Nuclear Strategy: How Burma’s Military Has Successfully Hijacked Democracy and Made Control over Burma’s Nuclear Future a Constitutional Right of the Military

The Legal Obligation to Prevent Genocide in Burma

The GJC publishes this fact sheet explaining the legal obligation of states to prevent (not just punish) genocide. Burma is now the number one state in the world at risk of genocide; it is therefore the obligation of all states to act against genocide in Burma.

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GJC Attends “Sri Lanka’s Killing Fields” Screening at the UN

On Tuesday, June 13, 2011 several GJC staff members and legal interns attended a screening of the controversial and disturbing documentary “Sri Lanka’s Killing Fields” at the Church Center in front of the UN Headquarters.  The event was presented to senior diplomats, UN staff and NGOs.  The film documents the final weeks of the Sri Lankan Civil War which lasted from 1983 to May 2009.  During the war, rebels known as the Liberation Tigers of Tamil Eelam (LTTE) fought to create independent Tamil state in North and Eastern territories of Sri Lanka, but were ultimately defeated by government forces.

The documentary explains how the Sri Lankan government pressured UN representatives to leave the Tamil occupied regions before launching a major offensive, leaving few or no international observers of the horrors which were to follow.  

The footage shows Sri Lankan soldiers committing extra-judicial killings of bound prisoners, photographs suggesting torture, and interviews of a woman who handed herself over to government forces and claims she and her daughter were raped and that she witnessed others being raped and killed.  Other footage suggests that such treatment of women may be systematic.  The film also shows displaced civilians killed by the government after being moved to a “no fire” zone and hospitals that were deliberately shelled by the government.  

Many of the accounts in the film are corroborated by a UN Report released by Secretary General Ban Ki-moon in March 2011.  The report found that as many as 40,000 people were killed in the last weeks of the conflict.  The Secretary General has expressed concern over potential war crimes and crimes against humanity committed by both sides and has urged the Sri Lankan government to investigate alleged violations and to “advance accountability.”  

The government, however, has rejected the report and called it “biased, baseless and unilateral.”  The Sri Lankan government further claims that the footage of “Sri Lanka’s Killing Fields” is fake and that the film is not even-handed.  The film, however, has been authenticated by UN specialists and suggests that war crimes were committed by both sides, with the LTTE engaging in suicide bombings, using civilians as human shields and enlisting child soldiers.


The screening was followed by a panel discussion which included Sri Lankan Permanent Representative to the UN Dr. Palitha Kohona and Former Major General and current Deputy Permanent Representative to the UN Shavendra Silva.  Kohona claimed many of the interviewees were lying and denied that the government engaged in systematic human rights abuses.  He stated that Sri Lanka is “a mature democracy” and that any violations by individual soldiers should be dealt with internally, asserting that calls for accountability from the international community are “paternalistic.”  He also rejected the 40,000 casualties figure suggested by the UN, claiming that if one counted all the bodies in the film “you would not come up with a total of one hundred persons.”  Silva alleged that the filmmakers were funded by the LTTE and demanded that the country be allowed to deal with issues domestically.


The screening timely comes soon after the Sri Lankan Justice Ministry has received a summons from a US Federal Court for President Mahinda Rejapaksa.  The summons is connected to three civil cases filed under the Hague Conventions and the US Torture Victims Protection Act by relatives of victims of alleged extra-judicial killings.  The Sri Lankan government has indicated that it will not respond to the summons.  The cases will be founded on the principle that the US, as well as other countries, may exercise universal jurisdiction over war crimes and crimes against humanity.  


Similarly, the GJC is currently investigating the possible use of universal jurisdiction to prosecute Burmese war criminals.  Specifically, the Burmese military junta routinely employs rape, torture, slavery, murder, mass imprisonment and abduction of children to fill its military quotas, all of which war crimes, crimes against humanity or genocide.  Moreover, the new Burmese Constitution provides military criminal impunity for war crimes and crimes against humanity.  Given that Burma is a party to the Fourth Geneva Convention and to the Genocide Convention, which require parties to enact domestic legislation to implement the treaties, the Burmese Constitution is a prima facie violation of its obligations.


In addition to the UN Security Council’s ability and, indeed, imperative to declare the Constitution “null and void,” fellow state parties may refer the issue of Burma’s noncompliance to the ICJ.  As with the recent US summons of Sri Lankan President Rejapaksa, however, states need not necessarily rely on the Security Council or the ICJ to ensure accountability for war crimes.  For violations of rights that are erga omnes, or owed to all, any state may use universal jurisdiction to arrest and prosecute suspected war criminals.  GJC is working to encourage certain states to exercise this tool to arrest and try Burmese officials who travel to their territory.


“Sri Lanka’s Killing Fields” may be viewed online at the British Channel 4’s website until July 13:
http://www.channel4.com/programmes/sri-lankas-killing-fields/4od 

Letter to the NY Times Editor, Justice for Myanmar

The letter "Justice for Myanmar," by a spokesman for 88 Generation Students, was published in the Editorial section of the New York Times, in response to the Times' article "Exiles Try to Rekindle Hopes for Change in Myanmar," also included in this document, published on August 6, 2008.

The Op-Ed published on August 12 points out that the article published by the Times does not represent the view of all Burmese exile groups. Not everyone thinks that President Bush and other world leaders should negotiate with the military juntas; many want access to justice and criminal accountability.

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The Anfal Decision: Breaking New Ground for Women’s Rights in Iraq

The GJC publishes a fact sheet on the Anfal decision.

The Anfal decision was made by the IHT, in prosecuting crimes committed under the Anfal campaign against Iraq's Kurdish population. The decision is a step in the right direction for women's rights in Iraq. This fact sheet gives information on the decision, including rape as torture, rape as genocide, joint criminal enterprise and rape, and how the IHT can be a vehicle for legal reform both in Iraq and internationally.

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Criminal Accountability for Heinous Crimes in Burma: A Joint Project of the Global Justice Center and the Burma’s Lawyer’s Council

The Global Justice Center and the Burma Lawyers' Council publish, in a joint project, this fact sheet on criminal accountability for heinous crimes in Burma.

This fact sheet gives information on the project on criminal accountability, and states that the Security Council should end the impunity accorded the Burmese military junta for crimes perpetrated against the people of Burma, as well as establish an Independent Commission of Inquiry. The fact sheet also explains the Security Council's Obligation to Act under Chapter VII.

 

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Iraqi Women's Rights and International Law

The Women’s Alliance for a Democratic Iraq (WAFDI) and the Global Justice Center (GJC) jointly organized a three-day conference on women’s rights and international law November 13th – 15th at the Dead Sea, Jordan.  Attendees included twenty members of the Iraqi High Tribunal (IHT) and representatives from the President’s office, the Prime Minister’s office, the Parliament, the Ministry of Human Rights as well as prominent members of civil society.  The conference addressed a crucial subject for women in Iraq: sexual violence, as a war crime, a crime against humanity and an instrument of genocide, and its drastic impact on the victims.  This issue was addressed in the context of international law and its role in the IHT, with an eye towards having the IHT address these crimes in its upcoming indictments and judgments.

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