Burma: A Case Study

In too many countries, women do not have a voice in governance which leads to structural inequality. GJC is developing a blueprint for democracy in post-conflict countries by securing gender equality in the law. Calling for equal rights is not enough; laws focused on the inclusion of women in power must be enacted and enforced. In our first case study in Burma, GJC has partnered with local women’s groups to ensure equal access to power and justice.

GJC’s work on Burma focuses on challenging structural barriers to ensure long-lasting democracy and justice for the people of Burma, protect women’s rights and establish a sustainable end to ethnic conflict. GJC calls on the international community to invest in a democratic future for Burma by insisting that the Burmese government dismantle these structural barriers which not only prevent true peace and democracy but also conflict in certain cases with international law.


GJC President Janet Benshoof in Democratic Voice of Burma: "It's Time for the International Community to Address Burma's Constitution"

Here's an excerpt from the article "It's Time for the International Community to Address Burma's Constitution," which was published in Democratic Voice of Burma on February 20, 2013:

The international community acts as if development and engagement alone can secure a democratic future for Burma. The United Nations and donor countries, with staggering rapidity, are investing considerable amounts of international and bilateral aid in Burma, including for “rule of law” projects designed to jettison Burma into the 21st century global legal community. However, this well-intended engagement, touting ideals of democracy and the rule of law, is built on a fallacy, which neither serves the people of Burma nor advances the global security sought by the international community.

This fallacy is that justice, democracy, and rule of law can be established in Burma notwithstanding the fact that the 2008 constitution establishing the “Republic of the Union of Myanmar” grants the “Defense Services,” under Commander-in-Chief Min Aung Hlaing, complete and total legal autonomy over its own affairs, as well as immunity for its actions, however criminal or corrupt. The truth is actually quite simple: unless and until the military is placed under civilian control through constitutional amendment, talk of democracy and rule of law in Burma is just that, talk.

Click here to read the full article in English.

Click here to read the full article in Burmese. 

Definition of Sovereignty

November 2012

The very definition of “sovereignty” or of a “sovereign” state like the Union of the Republic of Myanmar, assumes that the state has complete legal authority over the military and over constitution amendment processes

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The Nuclear Age Peace Foundation Calls for UN Security Council Action on the 2008 Myanmar Constitution's Removal of All Civilian Government Control Over the Military

FOR IMMEDIATE RELEASE - November 30, 2012

[NEW YORK, NY] - On November 30, 2012, the President of the Nuclear Age Peace Foundation, Dr. David Krieger, alerted United Nations Security Council members to the security risks raised by the 2008 Myanmar constitution, which denies the civilian government any power to control the military.

Myanmar/Burma’s Binding Obligations Under International Law

November, 2012

This document outlines some of Myanmar/Burma’s (hereinafter “Burma”) obligations under international law, and demonstrates the ramifications of these obligations. Burma’s obligations under international law have greatly increased due to the advances in international law and the enforcement of states obligations over the last fifteen years.

International law mandates that states either act or refrain from acting in certain ways, and provides remedies for state breaches. The framework of Burma’s obligations arise from four interrelated bodies of international law: international human rights and other treaty law, including the United Nations (UN) Charter; customary international law, including the laws of state responsibility; international humanitarian law; and international criminal law.

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UN Security Council Resolutions on Women, Peace and Security: A Chart Detailing State Mandates to End Crimes of Sexual Violence in Armed Conflict, Ensure Accountability and Promote Gender Parity in Conflict and Post-Conflict Situations

The following chart details the legally-binding mandates of the UN Security Council Resolutions on Women, Peace and Security 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010) – emphasizing the need for greater protection of women‟s rights and the inclusion of women in global governance and peace processes. The chart delineates the duties and obligations for action by 1) the UN Secretary-General, and 2) Myanmar/Burma [hereinafter Burma], as both a UN member state and a party to armed conflict.

Despite their application to Burma, the Resolutions have not brought any real and concrete change for girls and women on the ground. The inability of UN representatives to reach conflict areas in Burma severely obstructs the reporting mechanisms of SCR 1960. Additionally, since the Constitution of Burma gives complete amnesty for any and all crimes committed by the ruling military regime, the Burmese government precludes any meaningful accountability and justice mechanism for the women victims of sexual violence and enshrines further impunity for perpetrators.

The Global Justice Center is a New York based Human Rights Organization with consultative status to the United Nations working with judges, parliamentarians and civil society leaders on the strategic and timely enforcement of international equality guarantees. The Global Justice Center has been at the forefront of human rights advocacy in Burma by working closely with groups on the ground to implement international women‟s rights through the rule of law.

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Domestic Criminal Laws That Conflict with International Law: Burma's Abortion and Rape Laws - A Case Study

International law provides a model to improve often outdated domestic laws.

Burma is party to many treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Genocide Convention and the Geneva Conventions. International law requires states to comply with their treaty obligations in “good faith” regardless of whether domestic laws conflict with the treaty. These obligations often include requirements that states modify their domestic laws to ensure compliance with international human rights and humanitarian standards and obligations. For example, the Genocide and Geneva Conventions, ratified by Burma, both require as a part of their fundamental mandates that states pass domestic laws to comply with their treaty obligations. Burma currently has no domestic laws implementing any of its human rights treaty obligations, with the possible exception of its laws against human trafficking.

This document examines Burma’s domestic criminal laws addressing abortion and rape and compares them with the international law standards binding on Burma. These case studies are examples of how international law can be used to reform of Burma’s domestic law to comport with international human rights and humanitarian standards.

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Letter to Norwegian Foreign Minister

Letter from the Global Justice Center to Norway's Foreign Minister Eide asking for Support for a General Assembly Request to the International Court of Justice for an Advisory Opinion on Burma's Constitution.

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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.

Letter to Secretary Hillary Clinton

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.

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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

Letter to the NY Times Editor, Keep Up the Pressure on Myanmar’s Generals

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.

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