Burma: A Case Study

Room for Improvement: Looking back at the 2011 Egyptian Protests

Recently women have been heavily involved in protests in Egypt. This was true as well in 2011, but when the 2012 Constitution came out it had as little gender equality as the laws it was replacing.

At what point in the process did it become okay to silence the voices of women?

“[President] Morsi had promised an increasing role for women and Copts. The Constitution came after that with nothing! …  Women’s rights have been linked to religion and not to the needs of Egyptian women,” -  Azza Suleiman,  an Egyptian lawyer working to stop violence against women, said in an Amnesty International Report when interviewed.

She also condemned the opposition’s reaction: “They say it’s because there are more important issues to deal with at the moment. As if women’s problems are not as important!”

In 2012, the new government failed to deliver on its promises of democracy. Women were not equally represented (only two female members in the 36-member Cabinet). No tangible action was taken on gender issues. Authorities announced a stricter sexual harassment law in October 2012 and again in February 2013, but failedto pass it both times. Without women equally represented in the government, there was little motivation to act on gender equality issues – though women protested the unfairness from the outside. An Alliance of Women’s Groups called for gender equality in the new constitution in July, but thus far there has been little sign of movement on this issue.

The Global Justice Center knows that, where there is a constitution that excludes women and ignores the processes of justice, unrest is bound to follow. Our Burma Law Project seeks to challenge the same constitutional suppression of women’s voices in Burma. Gender parity in power is key to long-term stabilization in both of these transitioning democracies.

Amina Agami, an Egyptian woman who works with NGOs protecting human rights, said in the same Amnesty International Report that the 2012 Constitution “…does not care about women, as if they do not exist.” She also said that the Constitution could potentially provide for child marriage, and “The Constitution does not give women any chance to be at the parliament, ministry of justice or any other positions like that.”

GJC knows that to have a functioning democratic state the laws holding it together must be just. It is not possible to have such laws while women’s rights are ignored.

In the recent 2013 protests, women have been repeatedly silenced with sexual harassment while trying to exercise their right to peaceful protest. On the single day of June 30th46 sexual assaults were reported from Tahrir Square. The attacks on protesters have reached such levels that Amnesty International recently began a petition calling on Egypt to end sexual violence against women protesters. Consider also that  99.3% of Egyptian women have experienced some form of sexual harassment in their lifetimes.

This wide-scale suppression of Egyptian women’s voices is unacceptable. Egypt cannot move in any positive direction if Egyptian women are unable to exercise their political voice freely and unmolested.

In the next few weeks, Egypt needs to keep in mind gender equality and equal participation in government because without it a just and democratic system will never be reached. GJC aims to increase women’s roles in governments internationally. As our logo demonstrates, women make up 51% of the world’s population, but the global average for women in government is only 19.7%. We are working to close this gap, because only then will we have true representative democracy.  Women must be allowed to have an equal and respected role in government changes in Egypt. While we wait to see when and if Egypt will hold democratic elections again, one thing is clear:  The party thatultimately gains power in Egypt must make women’s rights a priority.

Legal Victory in Kenya Can Serve as Model to Fight Impunity in Burma

Girls and women in Kenya recently made history when the High Court of Kenya delivered a favorable outcome to a constitutional challenge in which 160 girls between the ages of 3 and 17 sued the Kenyan government for failing to protect them from being raped.

The girls brought the action under Section 22(1) of the Kenyan constitution, which provides that “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” The Kenyan criminal code contains laws that protect against rape, however they are not enforced and as a result rape has been on the rise. The petitioners accused the police of “neglect, omission, refusal and/or failure…to conduct prompt, effective, proper and professional investigations” into sexual violence complaints.

The High Court agreed with the petitioners, saying that the police had “unlawfully, inexcusably and unjustifiably” failed to respond to reports of sexual abuse in Kenya. It said police inaction and lack of enforcement has created a “climate of impunity” that shows perpetrators they can commit crimes of sexual violence and not be punished. The Court found that the petitioners’ fundamental rights and freedoms had been violated, not only under the Kenyan Constitution but also according to international law. The Court found police inaction to violate fundamental rights that are protected by the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the Universal Declaration of Human Rights. The Court also considered international cases that demonstrate a consensus that states may be held accountable for failing to properly respond to sexual violence because they have a duty “to protect all citizens from violence and ensure their security of person.”

Two days after the victory, several people contacted Fiona Sampson, the Toronto attorney who worked on the case. They wanted to use the case as a model in other countries for fighting impunity in the context of sexual violence, a problem that is hardly limited to Kenya.

For the women in Burma, for example, the problem of impunity in the face of widespread sexual violence is dire. The prevalence of abuse, documented by Burmese women’s groups, UN special rapporteurs, and even the Security Council, is extensive. These violations are not anecdotal incidences of crime. Rather, the Burmese military uses rape as a weapon of war against the civilian population.

Although this problem has been reported at length, the Burmese government refuses to take any action to punish such acts. In fact, the current 2008 Constitution provides complete impunity for sexual violence perpetrated by the military by including an amnesty provision that precludes the prosecution of military perpetrators of crimes. What’s more, current law requires that any amendment to the Constitution be supported by more than 75% of parliament. Because 25% of parliamentary seats are reserved for the military, all nonmilitary members plus at least one military member must support any proposed amendment. It is therefore unlikely that the amnesty provision will be overturned any time soon.Because of this, the International Center for Transitional Justice has said that Burma presents “one of the most difficult challenges in the world in relation to making progress toward combating impunity”.

As a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, Burma has an affirmative duty to ensure women are protected from sexual violence, which includes not affording immunity to its perpetrators. Like Kenya, Burma is bound under the Convention on the Rights of the Child and should be guided by the Universal Declaration of Human Rights in developing policies and practices that protect Burmese citizens from sexual violence. Burma is violating these international obligations when it relies on its 2008 Constitution to justify inaction.

The international community should look to the recent case in Kenya as a model and call for Burma to put an end to impunity if it wants to establish viable democracy in the country. Given the Burmese military’s reliance on aid, international pressure could be highly effective. While the government continues to fail to act to combat impunity, the international community must demand a change in the constitution so that girls and women in Burma, just as in Kenya, receive the protections their government owes them.

Why is a War Criminal Getting a Peace Prize?

Tuesday, April 23, 2013, 17:00-18:00

At New York, New York

On Tuesday April 23, Burmese President Thein Sein was awarded a peace prize from the International Crisis Group, an NGO dedicated to resolving deadly conflict. Oddly, presenting Thein Sein with this award is a step away from the ICG’s goal, seeing as their main focus involves conflict resolution, something the Burmese president has evaded. In ICG’s recognition of Thein Sein, they highlight that he has transformed Myanmar by “liberalizing past repressive laws” and “making significant strides in ending internal conflicts, securing ceasefires with all but one of the ethnic armed groups”. However, they gloss over the fact that despite the changes that he’s made, ethnic groups are still being oppressed by the military. There have been ongoing reports against the Myanmar Army from a multitude of sources, including the UN, with claims accusing them of systemic use of rape against Ethnic women. These allegations clearly indicate that rape is being used as a weapon of war against ethnic minorities, while the government turns a blind eye to these atrocities. Instead of acknowledging these methodical violations of human rights or making some sort of effort to alleviate the situation, President Thein Sein has merely denied the allegations. Reports have made it clear that the Myanmar army uses rape to terrorize and intimidate Ethnic people. As a signatory of the Geneva Convention, the nation of Myanmar is obligated to take initiatives to enforce humanitarian law against its army, but has failed to do so. As an advocate of human rights, GJC does not support a leader who oppresses its citizens and violates principles of humanity, especially against women. Our Rape as a Weapon of War Campaign demands justice for women raped in conflict in order to shatter this culture of impunity. Raping women for military objections is a complete violation of the Geneva Conventions, and states must face repercussions for these actions. Thein Sein should not be awarded a peace prize when he is not recognizing the abuses that his own citizens are facing under his rule as he allows this to continue, and by awarding him, the ICG is only approving of the suffering of innocent civilians. It is time to punish states that use rape as an unlawful weapon in armed conflict, not reward them.

Global Day of Action: Help GJC fight for safe abortion access for girls & women raped in war

For over two decades, women’s rights organizations in Latin America have mobilized around September 28th, which is also the day slavery was abolished in Brazil. Today, the Global Justice Center joins the Women’s Global Network for Reproduction Rights, who have declared September 28th Global Day of Action for Access to Safe and Legal Abortion. As part of our August 12thCampaign, GJC fights for full medical rights for girls and women raped in war, including access to safe abortions. We urge President Obama to lift the blanket abortion on US humanitarian aid that denies a girl or woman raped in war the option of an abortion, even in life/threatening situations.

War rape victims are forced to carry the child of their rapists in conflict areas such as Burma, the Democratic Republic of Congo or the Sudan, where systematic rape is often used as a weapon of war. It is even used to accomplish military goals such as genocide and ethnic cleansing. Apart from being inhumane, the American ban also violates the Geneva Conventions, which guarantee non-discriminatory medical care to the “wounded and sick”. The situation is presented in a recent article by GJC Senior Counsel Akila Radhakrishnan, published in The Atlantic.

Sign the petition on Global Action Day, or donate to the GJC and help us in the fight to lift the ban, on behalf of girls and women raped in war.

As Aung San Suu Kyi Visits US, International Law Violations in Burma Constitution are Highlighted

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.)

GJC Burma Researcher Phyu Phyu Sann quoted in Southeast Asia Globe article on Burma's War on Women

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.

Continued Violence in Burma’s Rakhine State Demands Greater Attention from International Community

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

The Perils of the Inaccessibility to Reproductive Healthcare in Eastern Burma

A woman should never have to resort to using a fishing hook or dangerous medications as the only feasible options to terminating a pregnancy. Yet these dangerous tactics remain pandemic in eastern Burma where inaccessibility to proper healthcare and safe abortions threatens the livelihood of thousands of women. A recent report by Ibis Reproductive Health highlights the dire state that women on the Thai-Burma border are in. The fact that so many women in Burma turn to these fatal and unsafe method of pregnancy termination underscore the need for safe abortions.

Yet, despite this clear need, USAID silences any prospects for these women to enjoy a healthier future. The United States, being the largest donor of humanitarian aid, has an immense amount of influence on how aid is distributed. When Congress implemented the Helms Amendment in 1973, abortion restrictions were placed on foreign aid. Under “Helms” no USAID funding may be used to pay for abortion as a method of family planning. The amendment contains a provision that prohibits abortion speech, saying that the funds cannot be used to “motivate or coerce any person to practice abortions.” The Global Justice Center staunchly argues that these abortion restrictions are a violation of the rights of girls and women raped in armed conflict under international humanitarian law. This is because the Geneva Conventions recognize that women and girls raped in armed conflict, as “protected persons”, are classified as “wounded and sick” and are entitled to “receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.” Therefore, depriving these girls and women of this care is unlawful and this injustice is the driving force behind the Global Justice Center’s August 12th campaign.

Focusing in on eastern Burmese women, it is clear that they do not have a credible institution to turn to when it comes to reproductive healthcare. In fact, reproductive healthcare in Burma is known to be the worst in the world.  The “Separated by Borders” report, released by Ibis Reproductive Health and the Global Health Access program exposes the crippling healthcare infrastructure in eastern Burma.  The GJC has long noted the terrible state of eastern Burmese women when it comes to accessibility to reproductive health care and abortion, especially during conflict. The Global Justice Center is using legal tools to work diligently to help lift the “no abortion” clause in U.S humanitarian aid to make this type of care more accessible so women in order to prevent prolonged suffering.

Based on the Ibis Reproductive Health Report, RH Reality Check author Anna Clark notes the life-threatening repercussions of depriving Burmese women of reproductive services including unwanted pregnancies, unsafe abortions and death. Furthermore, 80 percent of women in eastern Burma have never used birth control due to the overall inaccessibility of contraceptives and the lack of legitimate healthcare.

Granting women in eastern Burma their rights, including access to reproductive healthcare will be a step in the right direction for Burma. Burmese women will not only be alleviated from suffering, but, they will also have the opportunity to become more active members of society. Utilizing the rule of law, the Global Justice Center works to dismantle the patriarchal structures inhibiting women’s rights to make sure that the prioritization of women’s health will be factored into the equation in the years to come.

To read more about this issue on RH Reality Check, click here and here.

To read the “Separated by Borders” report, click here.

To read more about the Global Justice Center’s August 12th Campaign, click here.

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

Reflections on This Week’s Release of 184 Political Prisoners in Burma

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

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.

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.

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 

Making Justice for Burma a Reality

Written by Phyu Phyu Sann, GJC Burma Researcher

I am part of a generation of people from Burma who grew up dreaming of and longing for justice. A generation that continues to be victimized by terrible acts of mass atrocities carried out by our own ruling regime. Extrajudicial killings, torture, and forced labor are prevalent; rape and sexual abuse by the military are rampant; and more than 200,000 civilians were forcibly displaced in the east. In regions where armed conflict is ongoing, villagers have been used as human minesweepers and the forcible conscription of child soldiers is widespread.

More that 2,100 of my fellow country women and men who dedicated their lives to the ideals of justice and democracy are now languishing in remote prison labor camps far from their homes, in atrocious conditions, enduring mental and physical torture and summary executions at the hands of the military.

When I was inside Burma, the widespread repression and atrocities made me feel desperate and hopeless – that we were on our own and no one could help us to end this circle of impunity. As part of the Global Justice Center team working to uphold international commitments to the rule of law and enforce the people of Burma’s rights to criminal accountability, my sense of desperation has changed to one of hope. The international legal tools exist to give the people of Burma justice, and the GJC is working tirelessly to see that this happens.

This fall, the military regime will entrench its power permanently through elections that will trigger the full implementation of a criminal Constitution that codifies the military control over the government. What’s more, this Constitution gives the military amnesty for the crimes it is committing against its people and ensures that no civilian judge can ever hold a member of the military accountable.

This aggressive and deliberate act by the military to enshrine impunity as a “right” is a serious breach of peremptory norms striking at the heart of Burma’s obligations under the Genocide and Geneva Conventions, customary international law, and UN resolutions on women, peace and security and the use of sexual violence in conflict.

The Global Justice Center refuses to let the Burmese junta continuously thwart the international justice system.

We are preparing a draft Security Council Resolution declaring the Burma 2008 Constitution and any elections arising therefrom null and void, as it did with the South African apartheid Constitution in 1984. The pivotal precedent set by UN Security Council Resolution 554 on South Africa provides a framework for addressing analogous constitutions and election processes that entrench repressive regimes. In the upcoming months we are seeking avenues to bring this resolution before the Security Council and asking the global community to respect its commitment to international justice by joining us in calling for a referral of the situation in Burma to the International Criminal Court.

If the elections in Burma take place this fall, the threat that Burma poses to global peace and security will continue to escalate. This is our opportunity to show the world’s dictators that global rule of law will not be flouted.

The dream of justice for the people of Burma – one that I held onto my entire life – must become a reality.

Read a speech by GJC President Janet Benshoof on advances in international law to end impunity in Burma here.