Letter from the Global Justice Center to Secretary Hillary Clinton, asking for Support for a General Assembly Request to the International Court of Justice for an Advisory Opinion on Burma's Constitution.
Discriminatory Legal Systems
Burmese democracy leader Aung San Suu Kyi’s is in Washington DC today to received the Congressional Gold Medal. She will also be meeting with President Barack Obama. This is a proud moment for the Burmese community and for the Global Justice Center, which has worked tirelessly on democracy issues in Burma.
However, we also recognize that Burma’s transition to democracy is far from complete. A major obstacle continues to be the country’s constitution, which entrenches military influence over Burma’s civilian government. Daw Suu Kyi said herself that amending the constitution must be a top priority, and we agree with her. The Global Justice Center calls for the international community to challenge the constitution as a violation of fundamental international law—including the UN Charter.
Burma has seen substantial change these past few years; a civilian government was formed, political prisoners were released (Suu Kyi herself being one example), and, this April, opposition parties were allowed to take part in the by-elections, carrying 43 out of 44 open parliamentary seats (but continuing to exert little influence overall). However, Burma has yet to fully commit to democracy. The Burmese civilian government still owes its parliamentary majority to the fraudulent elections of 2010, and the current constitution hinders further democratization and gives complete autonomy to the military. This makes it nearly impossible to prosecute Burma’s military rulers, who are guilty of egregious crimes—including the use of systematic rape of ethnic women as a weapon of war, torture, forced relocation and forced labor. All are rampant violations of fundamental international law, including the Geneva Conventions and the UN Charter. The impunity accorded to the military under the current constitution leaves civilian victims, particularly those in the conflict areas of the Burmese border, virtually without legal protection. Activities of the Myanmar military are also in breach of a set of agreements that govern nuclear development.
The Burmese government and the international community must ensure that Burma is meeting international law requirements. Yet, because the constitution gives the military a “legal vacuum” the government would be legally unable to fulfill these obligations. Thus Burma’s new constitution stands in breach of core international commitments.
The Global Justice Center urges the international community to stand with the people of Burma and challenge the legality of the constitution.
(For an in-depth analysis of the constitution and restraint it puts on the civilian government, read GJC president Janet Benshoof’s report, co-written with the Burma Lawyers Council or see the Global Justice Center Project Page on Burma.)
Janet Benshoof, Global Justice Center President, writes an article for the Democratic Voices of Burma explaining in depth Thomas Quintana's difficult position as UN Special Rapporteur on the Human Rights Situation in Myanmar.
Click here to read the full article.
If United States foreign assistance funded the writing of this paper, which addresses free speech and women‘s rights issues of the utmost international concern, the authors, two United States citizens, would be censored—by U.S. law—from making any statements that advocated for abortion in any context.
Because the writing of this paper is not conditioned on the revocation of the authors‘ First Amendment rights, this paper can and will examine the legality and impact of U.S. abortion speech restrictions on foreign assistance recipients. The restrictions violate U.S. constitutional protections of free speech and contravene international law regarding democratic reform of criminal abortion laws abroad and human rights guarantees, including the right to health. Although the U.S. places myriad abortion-related restrictions on foreign assistance, this paper focuses on the speech concerns of the Helms Amendment3 in the context of domestic constitutional law and the Helms and Siljander Amendments4 in the context of international law.
Global Justice Center's Phyu Phyu Sann states:
"The judiciary has been firmly entrenched as a key tool of the military in Burma since 1988 when the military junta suspended the 1974 constitution and declared martial law, taking for itself all legislative, administrative and judicial powers," said Phyu Phyu Sann, a Myanmar researcher at the Global Justice Centre. "Like Stalin, sergeant-general Than Shwe perfected using judges as a weapon of choice for purging the population and those deemed a threat to his regime. The judiciary remains the same under the current civilian government."
She continues further:
"Changing the military's policy of discrimination and sexual violence against women is one of the most important reforms that need to be taken if we ever want to see real progress in Burma." However, Phyu Phyu Sann said the chances of the ruling elite championing women's issues as part of the current wave of legislative and administrative reform are slim to none, as it would involve far deeper, fundamental changes to the system. "Since the constitution was purposefully crafted to be difficult to amend, moving towards true democratic reform is unlikely," she said.
Click here to read the full article.
Ethnic and religious violence continues to flare in the Rakhine (formerly Arakan) State of western Burma after an incident last month in which a local woman was raped by three men, allegedly of Rohingya minority. The Rohingya are a largely Muslim ethnic group that lives mainly along the border between Burma and Bangladesh. They are not recognized by the Burmese military government as citizens in Burma, nor have they been permitted to obtain citizenship in Bangladesh. According to United Nations estimates, there are approximately 800,000 Rohingya living in Burma, many of whose families have lived in the country for generations. An estimated 300,000 currently live in Bangladesh. The Burmese refer to Rohingya as “Bengalis,” illustrating the widespread perception of the Rohingya people as unwelcome foreigners in Burma. Nor have members of the minority received much support from their supposed country of origin. Boats of Rohingya refugees seeking asylum in Bangladesh are being turned away by government authorities, who have effectively closed their border to refugees fleeing persecution in Burma.
The conflict risks creating greater political strife within the country at a time when the government is especially vulnerable to instability due to the recent “liberalization” undertaken by the ruling military regime. Many government officials are hesitant to address the issue publicly. Even Aung San Suu Kyi, Nobel Peace Prize winner and leader of Burma’s National League for Democracy has remained tight-lipped on the plight of the country’s Rohingya population. The NLD spokesman Nyan Win would not comment on Suu Kyi’s position but said, “The Rohingya are not our citizens.”
The three men accused of committing the rape that are believed to have initiated the conflict have been arrested and charged for the crime, yet the ethnic tensions sparked by the incident have continued to evoke violence in the region. After the attack, a group of Buddhist Burmese citizens boarded a bus and beat ten Rohingya passengers to death, some of whom were apparently thought to have been involved in the rape. Since then, clashes between the Arakanese (members of the ethnic Burmese population in Rakhine state) and the Rohingya community have included rioting, arson, and a continuing cycle of revenge attacks. Government officials report that the month of clashes has resulted in eighty deaths. The Rohingya community believes the death toll to be much higher.
In response to the violence, the military regime has instituted a state of emergency in the Arakan state, a situation which gives the military full governing rights under the 2008 constitution. While the government claims the measures have been undertaken to ensure the safety and security of the local population, a declared state of emergency robs the state’s civilian government of what little power and authority it previously enjoyed in the region.
It’s time for the international community to recognize the plight of the Rohingya people in Burma by increasing humanitarian aid to the region and openly calling for the military junta to end its oppression of minority groups in Burma, a trend that has characterized the regime’s rule for decades. In addition, the international community should call for Bangladesh to reopen its borders to refugees fleeing the violence in Burma and allow international humanitarian aid to enter the country. As Human Rights Watch has noted, Bangladesh is obligated under international law to provide temporary protection to refugees and asylum seekers. While Bangladesh is not a party to the 1951 Refugee Convention or its 1967 Protocol, it is a party to the Convention against Torture, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. These treaties and customary international law establish the obligation of states to respect the principle of nonrefoulement, which holds that refugees should not be forcibly returned to a place where their lives or freedom would be threatened and that no person should be returned to a place where they would be subjected to torture.
Post by: Adrian Lewis
A version of this letter appeared in print on page A30 of the New York edition with the headline: Change in Myanmar.
Janet Benshoof, President of the GJC, responds to an OpEd about Myanmar. She explains in this letter that sanctions are not enough to exact lasting democratic change in Myanmar; the focus should be on the Constitution.
Janet Benshoof, President of the Global Justice Center wrote a Letter to the Editor to the New York Times in response to the Op-Ed Keep Up the Pressure on Myanmar's Generals.
Click here to read the full article.
Excerpt from the Encyclopedia of Global Studies (2012) published by SAGE Publications Inc. "Global Justice and Legal Issues"
The concept of global jusitce is premised on the belief that all poeple are entitled to certain fundamental human rights solely by virtue of being memebers of the human community. The 1948 Universal Declaration of Human Rights (UDHR) was a seminal step toward this vision; for the first time, states agreed to uphold the fundamental rights and liberties of their citizens. Enforcement of these human rights guarantees, however, has been severly constrained by the nearly impregnable doctrine of state sovereignty. International law, traditionally limited to regularting behavior between states and not between individuals and a state, reinforced this state-centric view of human rights. This article was written by Janet Benshoof for the Encyclopedia of Global Studies in 2012.
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:
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.
Article "Clinton's Visit to Myanmar Raises Hopes and Concerns" in the New York Times quotes GJC President, Janet Benshoof
Janet Benshoof, President of the Global Justice Center, was quoted in a New York Times article on Secretary of State Hillary Rodham Clinton's recent trip to Myanmar, a test of the Obama's administration policy of engagement with repressive regimes long shunned by the United States.
Click here to read the full article.
As 184 prisoners of conscience have been released in Burma this week, GJC has been hearing news of – and from – newly released friends.
Rather than feeling jubilation or unconstrained hope, we are reminded through our personal conversations with them of the overwhelming feelings that come with being released (in some cases, after 23 years) as well as the despairing anguish of knowing that so many other political prisoners remain in prisons across Burma.
We are also mindful of the more than 1,816 prisoners of conscience themselves who continue to await release – including many who have been waiting for decades. We think, too, of their loved ones, including many who today continue to hope and wait outside of prisons in Burma with the hope that the person they love will be among those released.
History teaches us that what should be unfettered hope for our newly released friends in Burma, and even measured hope for those political prisoners who remain detained, must be tempered by skepticism and caution until real, proven change comes.
As those of us with friends or loved ones in (or newly released from) prisons in Burma understand, what should be unbridled joy at the release of 184 political prisoners (of 6,359 prisoners released) must in fact be bridled by the understanding that releases such as this one are strategically timed by the military for political advantage.
Even as the number of political prisoners released grows incrementally to 220 (October 13), friends of Burma are now called to pay ever more careful attention to what is and is not being done by the regime, for example by noticing the discrepancy in numbers between the total prisoners released and actual number of political prisoners released. By doing so, we will not mistake much more progress and promise for what has in fact been delivered.
All of this said, we extend our heartfelt best wishes to the 184 political prisoners who have been released this week and their families.
By Julaine Eberhard, Geneva Project Consultant for the Global Justice Center
"Burma's New Threat to Global Security" is an article by Janet Benshoof (President and Founder of the GJC) published in Democratic Voices of Burma.
This article explains the mistake the global community is making in allowing Burma to continue to violate international law. The new constitution is not a step towards democracy, because under it military power is still unchecked.
Exposing a “Pornography Ploy”: The Global Justice Center calls for President U Thein Sein to release all political prisoners and make public all related trial transcripts
The Global Justice Center calls for President U Thein Sein to release all political prisoners and make public all related trial transcripts.
The Global Justice Center today released a October 23, 2008 official court transcript which exposes the military’s use of trumped up pornography charges to convict fourteen Buddhist nuns and monks suspected of supporting the “saffron revolution” of 2007.
The six page judgment, signed by Judge U Peine Tun Aung after a one-day “trial,” convicted the seven nuns and seven monks of possessing “dirty” videos which “insulted” religion and sentenced them to imprisonment with hard labor for four years and three months. The judgment in Burmese can be found here. [English translation forthcoming.]
Among those convicted was Daw Pone Na Mee (Daw Mya Nyunt), an elderly, crippled, 84-year-old nun, who was one of the political prisoners visited by UN Special Rapporteur, Mr. Tomas Quintana in 2008. Mr. Quintana’s report on this visit related that the infirm nun told him she had no idea why she was in prison.
Burma’s top officials including the President and Chief Justice have consistently denied that political prisoners exist and claim that all prisoners have been convicted for committing serious crimes.
The Global Justice Center, a New York based human rights law group, calls for Burma’s President U Thein Sein to explain the full extent of this “perfidious pornography ploy,” and to release the trial transcripts of all current and former political prisoners, including any which are included in the upcoming release of 6,359 prisoners.
To read the full Global Justice Center press release, click here.
Letter to ASEAN Heads of State: ASEAN States, under the customary Laws of States Responsability are Prohibited from Recognizing, Myanmar/Burma as an ASEAN Member
Letter to ASEAN Heads of State: ASEAN States, under the customary Laws of States Responsability are Prohibited from Recognizing, Myanmar/Burma as an ASEAN Member Because the Myanmar/Burma Constitution and Elections Violate the Most Fundamental Rules of International Law
Recent Wave of Defecting Diplomats and War Crimes Confessions Brings Burma’s Human Rights Abuses to the Foreground
In the past two weeks, Deputy Chief of Mission Kyaw Win and Soe Aung, the second and fourth-ranking Burmese diplomats at the Burmese Embassy in Washington, have defected and are seeking asylum in the United States. Both diplomats cited the unrelenting abuse of their fellow countrymen by the military junta, sham elections, and fear for the safety of themselves and their families as reasons for their defections.
This recent wave of defections of high-ranking officials is undeniable evidence of the egregious human rights abuses that the Burmese government has been committing for decades. GJC aggressively advocates for legal action to be taken against the Burmese government in the form of a referral to the International Criminal Court (ICC). Furthermore, the UN Security Council should pass a resolution deeming the Burmese constitution “null and void” under international law for it is a complete breach of international law and poses a threat to international legal accountability as a whole. For more information, see GJC’s legal brief, 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.
Adding to the growing evidence of atrocities, this week, a Burmese refugee in Australia Htoo Htoo Han confessed that he committed war crimes while serving as an undercover military intelligence officer in Burma. “For so long I have lived like an animal. Now I want to release what I carry inside for 20 years. I want to say sorry to the mothers and fathers of the people I killed.” Han admits to carrying out 24 executions during a 1988 anti-government student uprising and being implicated in over 100 more killings. However, since Australia is a supporter of the pro-democracy movement in Burma, the decision of the Australian government to report Han’s confession may jeopardize the interest that some Australian corporations have in Burma’s resources, specifically their access to crude oil.
Hopefully, these defections and confessions will increase awareness of the human rights atrocities that are being committed in Burma. Furthermore, GJC hopes that this information instills a sense of responsibility in the UN and other members of the international community to provide support for take radical action against the overtly oppressive Burmese government and support the creation of a democracy.
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: