Campaigning for a Woman UN Secretary-General: A Conversation With Shazia Rafi

I spoke with Shazia Rafi of the The Campaign to Elect a Woman UN Secretary-General, about the selection of a woman Secretary-General to take over for Ban Ki Moon. Below is the interview, originally published at the Fletcher Forum of World Affairs on 16 May.

Before joining The Campaign Rafi served as Secretary-General of Parliamentarians for Global Action, a nonprofit organization of elected legislators in over 140 countries that works to promote peace, democracy, the rule of law, human rights, and gender equality. Rafi is a 1983 graduate of The Fletcher School.

Michael Caster: The previous process for selecting a Secretary-General came under criticism for a lack of transparency in how the Security Council made a decision in private and forwarded a single recommendation to the General Assembly for approval. How transparent do you expect the new process to be? Will it still defer to the same power players even if it’s done more in the open?

RAFI: There is a reality in the world now: everybody is constantly on social media, everyone is a known category, there are no hidden players anymore and everything else is taking place in a sort of fishbowl.

So when it comes to the UN Secretary-General, it has been the only one out of every inter-governmental institution where there haven’t been open candidates campaigning. The change to a more open process was long overdue. The push has come from everybody. Even the P5 have become increasingly uncomfortable with their role as the ones producing the candidates.

The player who has played quite a role in making this transparent has been the president of the General Assembly, former speaker of the Danish parliament [Mogens Lykketoft]. He wanted to give the General Assembly more power under something called the Revitalization of the General Assembly, a sort of rebalance of the UN power system.

He took the reins in both hands and insisted on holding hearings in April 2016 in which the candidates were forced to send in their nominations with their written vision statements and had to come to a meeting with members of the General Assembly.

I don’t know how transparent it really is. While Member States could ask questions from the floor, civil society managed was forced to put questions prerecorded by people they had preselected and it wasn’t clear half the time who these people were. I wasn’t too pleased with that because those of us with civil society are capable of asking from the floor as well. Also, each male candidate had two questions from civil society; each female candidate had three. This difference in treatment didn’t make any sense.

The decision will still be made by the Security Council and they haven’t set themselves a hard deadline. There’s a soft deadline, that by July they hope to open all dossiers that have been received, which means that those who want to be Secretary-General of the UN should have indicated their interest by July.

MC: What happens in September?

RAFI: The process itself is going to take a few months. Their deliberations will start in July, which is when Japan is president of the Security Council.

Then it goes back to the same process as has been previously used. The Security Council will do their internal straw polls as always. The P5 have different color coded-cards from the E10 [elected members of the Security Council] to indicate “encourage,” “discourage,” and “no opinion.”

The winning candidate has to have at least no “discourage” votes from the P5 meaning that they have not vetoed the final candidate. They need four to five of the rest because it still has to be a majority of the Council that agrees with the candidate and sends that name to the General Assembly. Even though there’s a push to try and get two names, so far the Council has said they will send one name.

New Zealand has the presidency of the Security Council in September and then Russia in October. Russians want to see the decision done in October.

MC: With Ban Ki-moon’s selection, when it was Asia’s turn in the regional rotation, most of the negotiations took place between the United States and China. Now with Eastern Europe under review, is it likely to boil down to negotiations between the U.S. and Russia?

RAFI: The region that is up this time is the Western European and Others Group (WEOG), but within that Eastern Europe has never had a Secretary-General. They have made it very clear that this time it’s their turn, which is why you see so many Eastern Europeans among the candidates.

Yes, this time it will be between the U.S. and Russia. I would not read too much into [the current Russia-U.S. relationship in terms of how much it will affect the process]. Countries are capable of having different compartments for their dialogues with each other. So they may not be on good terms related to some part of the world in which they are clashing right now but there are other things they can talk to each other about. These negotiations are a lot about, “If I agree with you on X, what am I going to get on Y?”

MC: How much resistance would you expect from Russia if the regional rotation system were abandoned?

RAFI: I don’t know what the final position of the Russians will be but so far it is very clear that they are still pushing for it to continue to be an Eastern European. The problem with the Eastern Europe group is that unlike the African Union Group or the Asian Group they are a region that is both within the European Union and not, which confuses the matter for the Russians. They may cherry-pick within the Eastern European region which countries they are willing to go for and which countries they are not. I think there’s a lot of fine negotiation that will take place on that basis.

MC: What about the so-called Group of Four (G4)? How have Brazil, India, Germany, and Japan weighed in on the process as part of Security Council reform and other structural issues in the UN?

RAFI: If you listen to the hearings, the question did come from the G4 to every candidate as to whether the candidates were willing to take up Security Council reform, which has kind of been a dead elephant. Candidates were very cagey, all of them, in terms of answering this one because obviously none of the P5 want to give up their power. This is unlikely to go very far.

MC: Your organization has held events and done a lot of advocacy. What have been some of the most valuable or results-oriented activities so far?

RAFI: I think the most important thing that we’ve achieved is that when we started out last year in the spring people were still referring to the next Secretary-General as he and then they started saying he or she and now they are saying she or he. So there is quite an expectation that, all things being equal, the Council will go for a woman. And we intend to continue to push that.

MC: Women in positions of power, either in the private sector or in political roles, are generally burdened with gendered double standards in which the same qualities that are seen as positive attributes in their male colleagues earn them negative perceptions and scorn. How do you see this playing out with a female head of the United Nations?

RAFI: These negative perceptions are the hurdles that we have. If we are strong, we are seen as, pardon me, bitches. If we are not, we are seen as too weak. I think this race is one where the women who are currently going for the job are already at the head of the agencies, foreign ministries, or whatever. They’ve already crossed certain parts of these burdens where their mettle has been tested. The issue here is going to be much more for Member States as to whether they can cross that mental hurdle when finally there are two candidates at the end that meet all criteria. Can they bring themselves to say this time they will weigh in favor of the woman? Because in an institution that’s never had a woman in the job you need that mindset.

It doesn’t mean the woman is less qualified. It means you have to cross that hurdle in an affirmative action mindset as an institution. And that requires a cross-regional coalition. Now there is a coalition of 56 countries, lead by Columbia, that is a General Assembly group of friends in favor of a woman Secretary-General. Some of them are from the Council but none of the P5 are members because they don’t want to commit one way or another yet.

If it turns out that the final short list is a woman and a man, then it will require that gentle push, and our organization intends to push.

MC: What do you think about the influence of having a woman as the Secretary-General on global gender inequality and women’s rights?

RAFI: The UN is the global institution of peace and security and the bulk of the victims of peace and security are women and children. Women are not a minority. They are almost 51 percent of the world’s population. If you adjust for the fact that China and India take steps to mess with the natural gender balance by aborting female fetuses, the majority of the world’s population is women. They are not reflected in economics. They are not reflected in the positions of power in the same way. But having this job in the hands of a woman I think would be a very strong message to the rest of the world.

MC: There are quite a few countries that have demonstrated their lack of willingness to address discrimination against women. Do you anticipate pushback from countries with bad records on women’s rights?

RAFI: No, I don’t think this will be reflected. For example, the United States is one country that has not ratified Convention on the Elimination of All Forms of Discrimination Against Women. It’s the only Organization for Economic Cooperation and Development country that hasn’t. I don’t think that will affect the U.S. vote. The two are not connected. This is part of their diplomacy, not part of what they do in their own countries.

MC: In terms of the escalating challenges that will confront the UN in the future, what would you like to see as the priority for the new Secretary-General?

RAFI: I want to see preventive peace making as the focus of the UN. That is an area which has been neglected in the past. I want to see the mediation role of the UN expanded because that is where we should have been putting our efforts and our funds and our best people in all of these crises that we are now scrambling to deal with.

MC: Do you have any advice for people at Fletcher who want to get involved at any level of this campaign?

RAFI: Fletcher is a leading think tank on a global basis. It’s also one that has enormous connections within the U.S. administration, State Department, and President’s office. There are Fletcher students in almost all the countries that are on the Security Council. I used the Fletcher directory when I was working in every country around the world. It led me to the right people. I think you have within both your current student body and within the alumni people who can be very influential on their government’s decisions on this. I would particularly say the ones from the countries on the Security Council should push in whatever interaction they have for there to be transparency in the process, even within the Security Council, and I would like them to push for there to be a woman.

Eliminating Statelessness in Southeast Asia

This piece was originally published at The Diplomat on 24 May 2016. Available here.

The government of Myanmar has come under fire this month following Aung San Suu Kyi’s rebuke of U.S. Ambassador Scot Marciel’s reference to the Rohingya, the estimated one million stateless Muslim inhabitants of Myanmar’s Western Rakhine State. Aung San Suu Kyi’s government refuses to fully confront the issue of the Rohingya, who have been denied equal access to citizenship since the passage of the 1982 Citizenship Law. The denial of citizenship has compounded human rights abuses, rising to the crime of genocide, according to an October study by Fortify Rights. The persecution of the Rohingya has deservedly captured increasing international attention in recent years, although greater awareness and mobilization is needed. The plight of statelessness remains a universal challenge.

Around the world, there are an estimated 15 million stateless people. According to the UNHCR, somewhere a stateless child is born every 10 minutes and within the countries hosting the 20 largest stateless populations some 70,000 stateless children are born every year. In 2014, the UNHCR announced its Campaign to end Statelessness in ten years. The same year, the Institute on Statelessness and Inclusion reported that more people in Asia and the Pacific are affected by statelessness than in any other region of the world. How ASEAN addresses this challenge will be key to achieving the UN’s objective of eradicating statelessness by 2024.

The Right to Have Rights

Hannah Arendt, in The Origins of Totalitarianism, calls citizenship the right to have rights, a sentiment which entered jurisprudence in 1958 through U.S. Supreme Court Justice Earl Warren, who wrote that the denial of citizenship is the denial of all claims to protection from any nation.

Modern notions of nationality emerged following World War I through a series of League of Nations treaties, which granted States total freedom to determine how individuals obtained or lost nationality. Such absolutism of State sovereignty changed following World War II with the realization of the degree of harm caused by discriminatory nationality laws, such as the Nuremburg Laws. This realization gave rise to Article 15 of the 1948 Universal Declaration of Human Rights, granting everyone the right to nationality.

Also in 1948, the United Nations commissioned the Study on Statelessness, released a year later. The Study affirmed that eradicating statelessness requires that, “Every child must receive a nationality at birth” and “No person throughout his life should lose his nationality until he has acquired a new one.”

The Convention Relating to the Status of Stateless Persons, adopted in 1954, provides the legal definition of statelessness as “a person who is not considered a national by any state under the operation of its law.” The 1961 Convention on the Reduction of Statelessness followed with more guidance. However, both Conventions remain poorly ratified with only 86 and 65 state parties respectively. The Philippines is the only ASEAN country to have ratified the 1954 Convention.

The right to nationality was further codified in the International Covenant on Civil and Political Rights (ICCPR). However, Brunei, Malaysia, Myanmar, and Singapore are not State parties. On the other hand, all ASEAN member states are parties to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Together they prohibit gender discrimination in matters of nationality, require immediate birth registration, and place an obligation on states to respect the right of the child to preserve identity and nationality.

Statelessness in ASEAN

The 2009 ASEAN Intergovernmental Commission on Human rights (AICHR) and 2010 ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) are both mandated with developing strategies for the promotion and protection of human rights. ACWC is furthermore empowered “to advocate on behalf of women and children, especially the most vulnerable and marginalized, and encourage ASEAN member states to improve their situation” and “to propose and promote appropriate measures…for the prevention and elimination of all forms of violation of the rights of women and children.”

Stateless people are indisputably among the most vulnerable and marginalized and international norms make explicit reference to women and children’s equal right to nationality. As such, AICHR and ACWC appear to have a mandated obligation to play a leading role in the elimination of statelessness in ASEAN, especially in ensuring birth registration and the elimination of gender discrimination in nationality laws.

One of the challenges to a regional approach is the lack of a unified definition of statelessness in domestic laws. The 1954 Convention provides the legal definition but the failure to ratify or implement in domestic laws provides countries with maneuverability. The Philippines offers the best example, having enacted the Convention and definition into domestic law in 2012. Vietnam and Laos provide a definition for stateless persons but do not go as far as the Philippines in implementing protections. The refusal to implement the accepted international definition in Myanmar, for example, has contributed to the State narrative that Rohingya do not qualify for protection as stateless because they are migrants from Bangladesh.

Birth registration, a human right vital for protecting against stateless, is not equally guaranteed throughout ASEAN. Cambodia provides a best practice in birth registration campaigning. In 2000, only around 5 percent of Cambodian births were registered. The Ministry of Interior, with support from UNICEF and others, initiated a pilot program involving more than 13,000 people who had received specialized training in birth registration. Within the first ten months of the program over 7 million adults and children were registered. Subsequently birth certificates were issued free of charge within 30 days of birth and only a small fee was incurred for late registration.

However, the 1996 Nationality Law offers no definition for statelessness and ambiguity in language implies that Khmer ethnicity may be a prerequisite for citizenship. Despite birth registration campaigning, several thousand stateless people remain in Cambodia.

Prohibitive costs for birth registration, requirements for documents that are sometimes unavailable or nonexistent, and associated costs of transportation or hospital fees, contribute to statelessness as well. Such obstacles often remain even after well-meaning policies have been adopted.

In Thailand, the 2005 National Strategy on Administration of Legal Status and Rights of Persons and 2008 changes in the Nationality Law ostensibly provided undocumented and migrant children, including stateless children, the right to attend primary and elementary school. Unfortunately, transportation or uniform costs continue to make education prohibitively expensive. Similarly, according to Children of the Forest, a child protection organization that works with stateless children and trafficking victims at the Thai-Myanmar border, among the common ways that children there become stateless is that parents will leave the hospital before registration because they couldn’t afford hospital services. Failure to register at the time of birth significantly increases the burden of registration at a later date. In 2015, the Thai government reported that over 18,000 previously stateless people had been given Thai nationality over the preceding three years. However, concerns over remaining obstacles in Thailand and elsewhere remain.

Gender discrimination in nationality laws is a significant contributor to statelessness. In Malaysia, although men and women confer nationality equally, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian Government. Mothers in Brunei have no right to pass nationality to their children. In a positive move, Singapore, in 2004, and Indonesia, in 2006, amended their nationality laws to permit mothers to pass citizenship to their children.

Three Approaches for the Elimination of Statelessness

The UNHCR acknowledges that some of the safeguards within the 1961 Convention have been enacted by ASEAN Member States. Still, accession to the two Conventions would provide the clearest framework for adapting national laws and policies to identifying, protecting, and eradicating statelessness within ASEAN. Although this is unlikely any time soon, there are three arguably more achievable measures that would strengthen the efforts to eradicate statelessness: empowering regional human rights bodies; emphasizing birth registration; and eliminating gender discriminatory nationality laws.

ASEAN created and empowered the AICHR and ACWC with a relatively robust mandate but they suffer from the lack of independence and weak enforcement capabilities. ASEAN’s Commitment to human rights, as expressed through the 2004 Vientiane Action Program and subsequent treaties, calls for strengthening such mechanisms.

This includes encouraging and working with States to withdraw reservations and amend laws that violate the right to nationality and birth registration, and localizing the legal definition of statelessness.

While civil society organizations are sometimes invited to regional consultations, the AICHR and ACWC remain under government authority. State representatives are largely coordinated by respective ministries of foreign affairs and not by national human rights institutions. Of course, national human rights institutions are not necessarily independent, as demonstrated in Myanmar and Thailand. However, AICHR and ACWC representatives from Indonesia, Thailand, and the Philippines have attempted to work around certain political obstacles by involving civil society and individual human rights defenders in the drafting or evaluation process, at times, and should be encouraged to do more so in terms of nationality issues.

Empowering regional human rights bodies to take a more active role in the identification and elimination of statelessness may also require the improvement of complaints mechanisms. Specifically, regional human rights bodies with a mandate over CEDAW and CRC should have specialized training and procedures for hearing complaints of arbitrary denaturalization, denial of nationality at birth or obstacles to birth registration.

The establishment of a regional human rights court would provide another forum for investigating and prosecuting the widespread or systematic arbitrary denial of nationality or grave human rights violations arising from the denial of nationality.

Registration at birth is of paramount importance. The ACWC mandate implies a role for the organization in birth registration campaigning and, in cooperation with child protection and gender experts, it should arguably take a more active role in harmonizing birth registration laws and advising campaigns throughout the region.

Drawing from Cambodia, efforts at raising awareness through television and radio should be maintained while other channels should be investigated and utilized. Public education during popular holidays would likely reach larger audiences. Because of challenges of birth registration campaigns reaching hill tribes or remote regions of Thailand, for example, efforts should be made to identify new strategies for locations or times of greatest community congregation. Registration campaigners should also concentrate around markets, where women may be likely to congregate. Campaigning should be increased around holidays when people from more remote areas are most likely to be present or when weather is more amenable to travel.

In order to address financial and administrative obstacles, a regional funding mechanism could be piloted to offset the costs of birth registration, including associated transportation costs. A period should be designated when birth registration is free, and after that waivers should be made available for the extremely poor.

There is also a role for innovative technology. Digital birth registration programs point to innovation in improving registration and archiving records.

A robust regional investigation into gender-based discrimination in nationality laws is a fundamental component of addressing statelessness. A widespread gender-based assessment of equal access to nationality should be conducted throughout ASEAN. Member states, especially Singapore and Indonesia, should work with Malaysia and Brunei to amend their Nationality Laws to abolish gender discrimination. Based on their mandates, this presents a strong opening for AICHR and ACWC involvement.

Admittedly there remain serious social and political obstacles to eradicating statelessness. Such obstacles have been reproduced through decades of structural violence and historical narratives of exclusion. The involvement of United Nations experts or foreign governments is not always greeted with fanfare. But ASEAN has made specific commitments and empowered regional bodies with a mandate to promote and protect human rights. Identifying and eradicating statelessness in ASEAN cannot be seen as a foreign imposition, as the government of Myanmar claims, but as an obligation inherent in the ASEAN Charter and within the mandate of regional bodies for the full realization of human rights for all.

Myanmar: Prisoner Amnesty Highlights the Need for Penal Code Reform

This article was originally published at The Diplomat on 5 May 2016. Available here.

A week after having released 199 political prisoners, on April 17 the Government of Myanmar released 83 additional prisoners. Among those released were student activists involved in peaceful protests against the National Education Law and Naw Ohn Hla, a land rights activist involved in demonstrations against the Chinese-backed Letpadaung Mine.

Htin Lin Oo, a writer and former National League for Democracy information officer, was also among those released. In June 2015 he had been sentenced to two years of hard labor for violating section 295(a) of Myanmar’s Penal Code, which prohibits the deliberate and malicious outraging religious feelings. The charge emerged from a speech in which he had accused several prominent Buddhist organizations of extreme nationalism.

He was mostly referencing Myanmar’s notorious monk, U Wirathu, who has been accused of hate speech and incitement of violence against Muslims by international observers numerous times since anti-Rohingya violence erupted in 2012.

Another victim of abusive 295(a) prosecution, New Zealander Philip Blackwood was released in January. Blackwood, along with two colleagues, had been sentenced in March 2015 to two and a half years of hard labor over a psychedelic image of the Buddha wearing headphones they had used as a promotion for their bar. The court appeared to have caved to pressure from Ma Ba Tha, Wirathu’s organization, and their excessive convictions arguably contributed to the ongoing privileging of Buddhism above other religions.

Both cases are emblematic of the susceptibility of the Penal Code to manipulation that furthers discrimination against ethnic and religious minorities.

Speaking on April 19, a spokesperson for the Office of the High Commissioner for Human Rights commended Myanmar’s new President U Htin Kyaw’s commitment to preventing “those who act legally for political causes or for their own conscience from being imprisoned.” Such commitments are positive but they also highlight the need for critical review of laws that do not conform with international standards. Because section 295(a) of the Penal Code has been used to further religious discrimination and to imprison critics of nationalist hate speech, it requires critical examination if Myanmar is to avoid institutionalizing discriminatory practices in this sensitive time of transition.

Historical Irony

There’s an unmistakable irony in that section 295(a) came about in response to the need to prohibit incitement against Muslim minorities by Hindu nationalists, yet it has become instrumentalized in contemporary Myanmar to insulate Buddhist nationalists against prosecution for incitement against Muslim minorities.

Myanmar, like other former British South Asian colonies, bases its criminal law on the Penal Code of 1860. Section 295(a) was added through legislative amendment in 1927.

In 1924, an unattributed satirical pamphlet written in Urdu titled The Promiscuous Prophet had gone on sale in bookstores in Lahore, in present day Pakistan. Responding to a copy he had been sent, Gandhi wrote, “I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions.” Sure enough, protests within the local Muslim community mounted against the publisher, who was ultimately acquitted; the judge ruled that the Penal Code did not explicitly criminalize this manner of religious hate speech. Around the same time a second case dealing with a publication that ridiculed the Prophet Mohammed was brought before the Lahore High Court amid growing demands for an amendment to the Penal Code that would be more sensitive to protecting religious minorities from hate speech.

In 1927 the Government convened a legislative assembly mandated with this task.

Historian Neeti Nair explains that the legislative assembly was concerned with ensuring maximum personal liberty of expression. The assembly was in agreement that in order for speech to be prohibited, the insult to religion or outrage to religious feelings must have been the sole deliberate and conscious intention. In this the lawmakers were concerned not to punish good-faith social or historical commentary or limit attempts to challenge religious adherents in order to encourage reform. For these reasons the final text aimed to explicitly prohibit only the “deliberate and malicious intention of outraging the religious feelings of any class of persons.”

N.C. Kelkar, one of the commissioners, was less convinced that this language would be sufficient to prevent abuse. He proposed including two explanations that would have explicitly noted what is not to be considered an offense under 295(a). This included stating facts and criticism of individuals, tenets, or observances of any religion with a view to promoting social or religious reform. Kelkar was defeated in this proposal and the amendment entered into force on September 22, 1927 without exception.

Kelkar was surprisingly prescient in insisting on further clarifications. The problem in contemporary Myanmar is that the lack of precise language has allowed for the object and purpose of this section of the Penal Code to be disregarded under pressure from Buddhist nationalist forces at the expense of religious minorities and those who may have spoken in their defense.

How the court has interpreted this section of the Penal Code is inconsistent with both Burmese law and international human rights standards.

Inconsistencies with Burmese Law

The Constitution, in Article 34, recognizes the right of every citizen to the freedom of religion. As such the State should have an obligation to protect this right but the lack of transparency and failure to adhere to the law, and bias in favor of Buddhist plaintiffs, implies the courts are not upholding the equal protection of the freedom of religion.

The Constitution is actually somewhat ambiguous on this. Article 361 sets out that Myanmar recognizes the special position of Buddhism as the faith professed by the majority of the country while merely recognizing in Article 362 that Christianity, Islam, Hinduism and Animism were religions existing in the country at the time the Constitution took effect. From recognizing the special position of one to merely acknowledging the existence of others, it is not difficult to see where courts may be pressured to read bias into the law by politicized Buddhist organizations.

That such groups are as much political as religious should, however, raise a major Constitutional concern. Article 364 forbids the abuse of religion for political purposes. In light of Ma Ba Tha’s role in drafting the recent so-called Protection of Race and Religion laws and issuance of threats preceding the 2015 election it is clearly politicized.

While there are limited similarities with Ma Ba Tha claiming religious offence and threatening disorder with Muslim protests against offensive publications in the 1920s, the 1927 assembly was clear to differentiate between intentional offence and social reform-minded criticism such as in Htin Lin Oo’s case. Ma Ba Tha’s pressure on the court is either a willful misreading of the law or, arguably, part of a program that is more political than religious. In either case, such groups have been allowed to exert undue influence over the court due to a lack of judicial training or independence.

The most important element of 295(a) is that the accused acted with deliberate and malicious intent however courts in Myanmar have not consistently ruled on this requirement. In cases where the court has sentenced someone to prison after disregarding this fundamental requirement it has acted inconsistently and in violation of domestic law. The resulting imprisonment should therefore be considered arbitrary detention, a violation of international law.

Inconsistencies with International Standards

Equality before the law is a core human rights norm. The Universal Declaration of Human Rights (UDHR), Article 8, guarantees that everyone has the right to effective remedy by a competent tribunal. Articles 10 and 11 stipulate that everyone is entitled to full equality before a fair and public trial by an independent and impartial judiciary and that nobody shall be found guilty for anything that doesn’t constitute a penal offense under national or international law. This is reiterated in Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The biased rulings on certain 295(a) proceedings are a far cry from the standard of equality and fairness before the law and the courts’ failure to adhere to the intent requirement violates the defendant’s right not to be found guilty for acts that do not constitute a penal offense under national law.

Failure to uphold equality before the law in these proceedings is a violation of the fundamental human right of non-discrimination, which is to be upheld at all times, under all circumstances. Although the UDHR and ICCPR don’t explicitly define discrimination, the Human Rights Committee has held that the Convention on the Elimination of Racial Discrimination (CERD) provides definitional clarity and sets forth guidelines and specific State obligations. Although Myanmar is not a party to CERD, the Convention offers guidance on eliminating discrimination that the new Burmese Government should consider embracing.

CERD explicitly deals with racial discrimination but this can arguably be extended to other forms of discrimination pertinent to section 295(a) and broader Penal Code reform. Article 2 holds that States shall take effective measures to review governmental policies and to amend or repeal laws that allow for discrimination.

Article 4 continues that States shall prohibit organizations that promote or incite discrimination and should not permit public officials or institutions to promote or incite discrimination. The State and courts’ tacit acceptance of Ma Ba Tha and other nationalist Buddhist organizations have contributed to an emboldening and permissive atmosphere for discrimination in favor of Buddhism over other religions. Public officials and institutions are ultimately responsible for the selective implementation of section 295(a), and as such their behavior appears to be in violation of obligations outlined by CERD.

The Human Rights Committee has provided commentary on such implementation in noting that “laws to discriminate in favor of or against one or certain religious or belief systems, or their adherents over another” are impermissible as are laws that “prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith” as long as they do not constitute incitement.

It is clear from the commentary of the 1927 assembly that the commissioners hoped to preserve the freedom of opinion and expression, which the Human Rights Committee has called “the foundation stone for every free and democratic society.” It is so fundamental that international human rights law only permits for limited restrictions, laid out  in ICCPR Article 20, namely propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The object and purpose of section 295(a) appears to conform with international law in this sense, but selective prosecution has amounted to an undue restriction on the freedom of expression.

During the Universal Periodic Review of Myanmar before the Human Rights Council in November 2015, several States including Norway, Turkey, France, and Nigeria made recommendations that Myanmar address the spread of discrimination and incitement against ethnic and religious minorities and enact laws to this effect. Myanmar ultimately rejected most such recommendations claiming they “are contrary to the situation on the ground.” This rejection, however, falls flat in the face of evidence otherwise.

Time for Penal Code Reform

During the follow-up session to the Universal Periodic Review on March 17, 2016, Myanmar’s Representative U Maung Wai remarked that, “as things are changing, and changing in the right direction in the country, a window of opportunity may arise to revisit these recommendations in the future.”

If President U Htin Kyaw is to be taken seriously on his commitment that those who act legally of their own conscience will no longer be imprisoned and if the new Government is sincere in promoting human rights moving forward, it is time for them to see the window of opportunity as wide open. The Office of the High Commissioner for Human Rights, in the same statement mentioned above, has been clear that it is ready to provide expertise to the Burmese Government to reform those laws that do not conform with international standards. Beginning with a review of the Penal Code would be a good start.

Taiwan: Can Tsai Ing-Wen Change the Politics of Death?

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.

Nonviolent activism around the Olympic Games: History and lessons learned

This article was originally published at openDemocracy.net on 24 November 2015 and is available here.

Whereas countless public figures have insisted that the Olympics be kept “apolitical” for decades, nonviolent action and civil society together have succeeded in revealing the hollowness of such a notion.

A Tiananmen Square-themed Olympic logo. Creative Commons. Some rights reserved.Bringing the International Olympic Committee (IOC) to act on human rights has been the product of decades of international and local resistance, from boycotting South Africa in 1968 to obstructing China’s torch relay in 2008. The key message of this resistance has consistently been that the Olympics is more than just a sporting event. Many campaigns have used the Games to draw attention to myriad rights violations ranging from minority discrimination and the loss of indigenous land to the treatment of political prisoners. There is an opportunity for civil society to build on its achievements, in particular by taking on a proactive role in holding future host countries more accountable.

The empowering spirit of the Olympics motto “Faster, Higher, Stronger” is increasingly out of step with the global decline in freedom and assault on human rights defenders over the past several decades. These problems are sometimes pronounced in Olympics host countries.

When the IOC votes to award cities like Beijing or Sochi, it is partially complicit in legitimizing repression and permitting ongoing persecution. Until recently, the IOC could brush aside calls from the international community to acknowledge its place within the politics of repression. Today, that is no longer the case.

Indeed, following decades of pressure from civil society groups and activists, the IOC in October 2014 updated host city contracts with a reference to human rights. The 2024 bid — to be announced in September 2017 — will be the IOC’s first official opportunity to demonstrate its newfound stated commitment. And yet the entity is already coming under criticism for not going far enough with the new group of potential cities between now and 2024 — a sign that public opinion on just how “apolitical” the Olympics can really be has shifted.

The 1936 Berlin Olympics

When the IOC votes to award the Olympics to cities like Beijing or Sochi, it is partially complicit in legitimizing repression and permitting the ongoing persecution of human rights defenders.

The history of the Olympics reveals its contentious nature and illustrates how civil resistance has shaped or been shaped by the Games. The narrative naturally begins in 1936 in Berlin. While Jesse Owens’ glory is widely remembered, what is not so well known is just how close the United States came to boycotting Hitler’s Olympics.

Concern that rising anti-Jewish discrimination should preclude Germany from hosting the 1936 Olympics began in earnest in 1933. In 1934, American Olympic Committee President Avery Brundage was invited to Germany to judge for himself whether or not Jewish citizens of the Third Reich faced discrimination. With no expertise in the matter, Brundage was a poor choice for such an important fact-finding mission and proved pliable in Hitler’s hands. In a trip that was deplored by the US ambassador to Germany, in Berlin Brundage was wined and dined. Following his trip, he argued that sporting events should not “interfere in the internal political, religious or racial affairs of any country or group.” A few months later, Hitler passed the Nuremberg Laws, stripping German Jews of citizenship and other basic rights.

Ignoring substantive grounds for concern, and the growing domestic movement for a boycott, Brundage succeeded in convincing the AAU to support US participation in Berlin. Advocates of a boycott were narrowly defeated.

Under pressure, Apartheid South Africa drops out of 1968 Games

Smith and Carlos raised fists in Black Power salute at 1968 Olympics in symbolic act of civil resistance. Thirty years later, Avery Brundage would again come under fire leading up to the 1968 Summer Olympics in Mexico City.

Formed in 1967, the Olympics Project for Human Rights (OPHR) was a central actor utilizing the Olympics spotlight to expose widespread, systematic racism and exploitation of black athletes in the United States. The organization had five central demands, among them the removal of Avery Brundage from his then role as the president of the US Olympic Committee, and the denial of Apartheid South Africa and Rhodesia from participating in the 1968 Olympics.

Brundage had disregarded previous demands that South Africa be banned from participating in the 1960 Olympics following the Sharpeville Massacre in March of that year. During the massacre, South African security forces opened fire on a nonviolent demonstration of some 5,000 people. For OPHR, allowing South Africa to participate in 1968 would be tantamount to failing to revoke the 1936 Games from Berlin. They announced a boycott.

 Enthusiasts for the boycott included Dr. Martin Luther King, Jr. who, months before his assassination, offered his absolute support saying, “This is a protest and a struggle against racism and injustice and that is what we are working to eliminate in our organization and in our total struggle.”

OPHR succeeded in one of its demands. Under the threat of boycott and related international mobilization, the IOC eventually advised South Africa not to participate. During the 1968 Games, in a well-known instance, OPHR members Tommie Smith and John Carlos raised their fists in the Black Power salute after receiving Gold and Bronze medals — in solidarity with the broader civil resistance campaign (see image).

In this way, OPHR also succeeded in establishing a repertoire for activists to utilize the spotlight of the Olympics to draw attention to oppressive conditions within host countries and also to more universal grievances.

A new millennium for the Olympics?

Activism around the 2008 Beijing Olympics was built on a similar repertoire of international mobilization to draw attention to widespread human rights violations within the host country.

When I first traveled to China in 2006, especially in Beijing, one could not escape banners proclaiming China’s motto for the Games, “同一个世界,同一个梦想,” (One World, One Dream), as China hoped to leverage the Games for increased soft power and a projection of a “harmonious society.” Two years later, this narrative was challenged at many stops along the international Olympics Torch Relay.

The torch was lit in Greece, on 24 March 2008, about a week after a security crackdown on what had begun as a nonviolent demonstration in the Tibetan capital of Lhasa. The demonstration resulted in an unknown number of Tibetan deaths and detentions. Images of crimson-clad monks surrounded and beaten by Chinese police shocked international audiences. For many around the world, it was the first they learned of widespread human rights concerns in China.

There were a few scattered incidents along the route but the first major demonstration took place on 6 April in London. Free Tibet flags and placards voicing myriad human rights concerns contrasted with Chinese flags and “One China” supporters. In similar rhetoric as Brundage’s toward the Berlin Olympics, Beijing torch relay spokesperson Qu Yingpu told the BBC, responding to events in England, that, “This is not the right time, the right platform, for any people to voice their political views.”

Other organized nonviolent actions in Paris, San Francisco, Southern China and elsewhere succeeded in interrupting the Torch Relay, drawing major international attention to a number of human rights issues. Sadly however, the international demonstrations ultimately had little concrete impact on the 2008 Games. What’s more, China has since then come to represent an even bigger missed opportunity for the IOC to demonstrate commitment to upholding human rights.

Since President Xi Jinping came to power in March 2013, human rights organizations have documented over 1,800 cases of arbitrary detention. A new criminal law along with legislation on national security and NGO management have increasingly constrained Chinese citizens from exercising their rights. Torture and enforced disappearances remain a state practice. Notwithstanding this regime’s deplorable track record, the IOC went ahead this July with awarding the 2022 Winter Olympic Games to Beijing.

Tibetan rights protesters come face to face with pro-China counter-demonstrators along the torch route in San Francisco.

No Olympics on Stolen Native Land”

At the 2010 Vancouver Winter Olympics, the dominant narrative for many focused on the Olympic Games as an institution, as a corrupt or repressive symbol.

In 2010, Amy Goodman of Democracy Now reported it was an historic convergence as indigenous rights defenders and poverty and civil liberties activists joined together under coalition titles such as the “2010 Welcoming Committee” and the “Olympics Resistance Network” to protest the Games and the some $1 billion dollars spent on police and security. Advocates of broad-ranging issues from women’s rights and rights of the homeless to anti-war and globalization also took part in the demonstrations. The Seattle Times traced parallels in coalition formation and other tactics in Vancouver back to the 1999 anti-globalization movement against the World Trade Organization in Seattle, my own introduction to civil resistance.

Despite the fact that the 2010 Games made history as the first time indigenous people were recognized as official partners, for many the rallying cry in Vancouver was still, “No Olympics on Stolen Native Land.”

Vancouver activists raise concerns about land destruction and neglect for native peoples in the lead-up to the 2010 Winter Olympics.

At the 2014 Sochi Olympics, undoubtedly LGBTI issues took center stage. Many of the tactics employed by activists over the preceding decade were repeated, from international coordination in multiple cities to boycott movements. There was also a sense of rising disgust with the IOC and the Olympics in general. How could the IOC allow such a blatant violation of IOC Principle 6 on discrimination, asked the eponymous movement.

The IOC responds to direct challenges

Human Rights Watch and others outlined the need for the IOC to change in a 2014 submission to the “Olympic Agenda 2020.” This included media freedom, labor rights, freedom of expression and association, and nondiscrimination based on race, religion, sexual orientation or gender identity. ” Too often major sports events have seen people forcibly evicted from their homes to make way for infrastructure, workers exploited, campaigners locked up, the environment damaged beyond repair and notoriously opaque bidding processes.” 

In a February 2015 open letter to IOC President Thomas Bach of the Sports and Rights Alliance (SRA) wrote, “As you know, too often major sports events have seen people forcibly evicted from their homes to make way for infrastructure, workers exploited, campaigners locked up, the environment damaged beyond repair and notoriously opaque bidding processes.” SRA identified the need for concrete and measurable indicators in the future host city bidding process.

In late 2014, the IOC added a human rights clause, meaning countries must meet minimum standards to be awarded host. The problem is, the IOC isn’t set up to be a human rights monitoring body. It will need help, from IOC member countries and civil society.

This is a good step forward and should be lauded, with caution. Whereas countless public figures have insisted that the Olympics be kept “apolitical” for decades, nonviolent action and civil society together have succeeded in revealing the hollowness of such a notion. But without concrete action, the IOC may inadvertently continue legitimizing repressive regimes.

Eyes on 2024 and beyond

Ongoing innovation in civil resistance and organizations such as Principle 6 and the SRA have contributed to forcing the IOC to recognize its place within the politics of repression. Decades of civil resistance succeeded in shifting the narrative.

Nevertheless, the IOC lacks monitoring and enforcement mechanisms, other than the threat of refusal to award host city status. Human rights defenders and civil society organizations should take this on as a new objective in their work around the Olympics.

These actors would benefit from tactical innovation that engages with the IOC’s updated Charter in a new, more proactive and direct way. In addition to many of the previous tactics such as boycotts or collective action, this will also at times require less disruptive actions. For example, civil resisters should deepen coalitions with human rights law practitioners, especially those most skilled in practical fact-finding and reporting. Different tactics can be combined, but they must be done so as part of a broadly inclusive grand strategy that aims to hold the IOC accountable to its recently stated embrace of human rights. If the IOC is sincere, it should welcome such civil society participation and monitoring at all phases. If it is unwilling to do so, then it makes itself vulnerable to such visible, popular nonviolent actions as those chronicled in this article.

The Truth About Myanmar’s New Discriminatory Laws

This article was originally published 26 August 2015 at The Diplomat. Available here.

Last Thursday, Myanmar’s parliament approved the remaining two of four “Protection of Race and Religion” bills. ASEAN Parliamentarians for Human Rights Chairperson Charles Santiago prefers to call them the “Race and Religion Discrimination bills.” Their passage—which would allow local governments to impose a host of repressive measures—comes at a time of ongoing racial and religious discrimination and violence, part of a concerning trend in systematic Rohingya persecution. It is only more alarming as it coincides with the widespread disenfranchisement of previously registered Rohingya voters, including former parliamentarian U Shwe Maung.

These bills are inconsistent with international norms and standards and represent a clear violation of Myanmar’s obligations under the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Myanmar is a party to both conventions. The bills are likely to not only legitimize anti-Muslim sentiment but also provide a legal framework for increasing discrimination of Rohingya.

The package of laws has been a long time coming. They were first proposed following the establishment of the nationalist Buddhist organization known as Ma Ba Tha, which presented them as a draft to President Thein Sein in mid-2013. In December 2014, the laws were tabled for parliamentary debate beginning in January. Civil society and the international human rights community campaigned against their adoption and encouraged the Government of Myanmar to observe its human rights obligations rather than succumbing to nationalist hysteria.

Despite such concerns, in May the Population Control Healthcare Bill was the first to be approved. UN Special Rapporteur on the Situation of Human Rights in Myanmar,Yanghee Lee cautioned that the “Protection of Race and Religion” bills “risk deepening discrimination against minorities and setting back women’s rights in Myanmar.”

The bill grants regional officials the ability to establish 36-month birth spacing for target groups. The bill lacks human rights safeguards and raises serious concerns for abuse against Rohingya Muslims, who have already been subjected to decades of similarly abusive local orders.

Muslim couples that wish to marry must obtain official approval, which can sometimes take years to secure and require bribes. The Two Child Policy requires them to sign an agreement that they will not have more than two children, under threat of fine or imprisonment. The policy has led to amateur abortions that threaten women’s lives, influenced the number of women refugees, and led to the birth of blacklisted children who may never be registered, explains Engy Abdelkader, an expert on freedom of religion with the OSCE. The CRC requires birth registration and establishes the right to a nationality and identity, noting that the state is obligated to ensure these rights “in particular where the child would otherwise be stateless.”

The desire to control Muslim populations in Myanmar comes from the widespread belief in the Buddhist-majority country that Muslim communities have exceedingly high birthrates and are planning a population takeover. However, as Abdelkader points out, based on official government data, researchers at Harvard University have revealed that Rohingya actually have one of the country’s lowest population growth rates. Unconvinced by such data, Ma Ba Tha founder and ultra-nationalist monk U Wirathu continues to infuse his Buddhist millenarian sermons with narratives of Muslim population growth, and the forced conversion or widespread rape of Buddhist women.

In July, parliament passed the Buddhist Women’s Special Marriage Bill, which requires Buddhist women and men from other religions who wish to marry to register their intention publicly. They may only get married if there are no objections. It will apply retroactively to existing unions who must register as interfaith marriages. This violates the universally recognized rights to marriage and privacy, as well as equal protection of the law by applying only to Buddhist women and non-Buddhist men. It is a blatant attempt to curb interfaith marriages says Phil Robertson, deputy Asia Director for Human Rights Watch.

The justification for protecting Buddhist women in marriage appears to arise from a gender discriminatory narrative that equates women with purity and assigns a patriarchal society with the task of protecting a Buddhist women’s purity at the expense of her agency.

In August, parliament approved the final two bills, the Religious Conversion Bill and the Monogamy Bill. The conversion bill requires anyone who chooses to change their religion to apply with a district level “Registration Board,” submit to an interview and a 90-day waiting period. Such restrictions violate the right to freedom of thought, conscience and religion and the right to freely have or adopt religion. It is an assault on privacy, also found in the monogamy bill, which targets religious minorities who are often seen as sexual deviants.

According to Human Rights Watch, at least the most recent bills are still awaiting final signature by President Thein Sein. As the November election approaches he will likely come under increasing pressure, along with the rest of his USDP Party, from Ma Ba Tha to enact them into law.

Throughout the drafting period and especially once the package of bills was introduced to parliament, Ma Ba Tha was active in campaigning for their enactment. In October, U Wirathu organized thousands in Mandalay to demand the passage of the bills. May Sabai Phyu, a human rights defender and member of the Kachin ethnic minority, revealed that Ma Ba Tha challenged parliamentarians who did not approve the bills. Senior monks told their congregations not to vote for those who did not support the bills. Some critics were labeled “traitors” and at least four civil society leaders reported receiving death threats.

Article 364 of Myanmar’s Constitution forbids the abuse of religion for political purposes, and several sections of the Penal Code criminalize deliberate assaults on religious feelings and the incitement of hatred or violence against racial or religious groups. However, there has been no investigation into these activities.

One problem that remains seemingly unanswered, as pointed out by Amnesty International and the International Commission of Jurists, is whether and how the bills would apply to non-citizens. This is a particular concern for the Rohingya, who have been denied citizenship and subjected to unofficial discriminatory local orders for decades.

When asked whether non-citizens living in the country would be burdened with the requirements under the religious conversion or the marriage bill, U Win Mra, Chairman of the Myanmar National Human Rights Commission, merely stated “that it is a very complicated thing, which the state must consider carefully.” The inability of the national human rights commission to conclusively dissuade concerns that the law would disproportionately target non-citizens raises serious concerns about implementation.

For Wai Wai Nu, a Rohingya rights defender and founder of Women Peace Network Arakan, there is little uncertainty. For her, the central government’s intent with the adoption of the “Protection of Race and Religion” bills is precisely to legalize discrimination.

Against Letpadaung: copper mining in Myanmar and the struggle for human rights

 This article was originally published at OpenDemocracy on 3 August 2015. Available here.

Credit: http://www.e-paolive.net/galleries/images/misc/2012/12/Bur-protest-1-Dec.jpg (All rights reserved).

The Letpadaung copper mine in the Sagaing Region of central Myanmar has become a major fault line in the struggle for human rights in that country. It is also emblematic of a global problem: the damage caused by exploitative resource extraction coupled with impunity for state violence.

Although the complex which houses the mine is some 20 years old, it has attracted increasing resistance since Myanmar began its ostensible transition away from strict military rule in 2011. Fed up with massive forced relocation and environmental degradation, residents have taken advantage of gradual political liberalization to begin staging demonstrations at the mine. But state brutality promptly tramples these actions, including at least one police assault on civil resisters — civilians — using military weapons. Abusive state officials have escaped prosecution while activists have been sentenced for exercising their fundamental rights.

Contention around the project — and especially police treatment of those engaging in nonviolent civil resistance to put an end to it — has grown into a real challenge for President Thein Sein’s rhetoric of civilian government and the development of rule of law. How the situation is eventually resolved will be a serious barometer for democratic transition in Myanmar.

But already its unraveling has revealed the potential for several innovations in rights defense in Myanmar. These innovations include increasing regional networking to facilitate deeper exchange between human rights defenders in neighbouring countries engaged in similar struggles, and developing more sophisticated advocacy and lobbying skills for drawing on the support of the international community. Domestic civil resistance can benefit both from the development of a culture of litigation and from a stronger network of professional human rights lawyers.

How civil resistance and litigation converged

Thein Sein, President of Myanmar. Demotix/Alexander Widding. All rights reserved.

Following a police crackdown on several hundred monks, students and farmers nonviolently protesting the Letpadaung mine in November 2012, an independent investigation by a group of Burmese lawyers and the US-based human rights organization Justice Trust revealed that the police had used white phosphorous grenades against the nonviolent resisters — a chemical weapon of complicated legality under international law. The monks, many shielding the other protesters, suffered the worst injuries: deep burns and lasting pain. “There was something specific about the particular fire,” one of the monk organizers, U Teikkha Nyana, told a group organized by several human rights organizations at Harvard Law School this past April.

This assault strengthened the ties between two groups — civil resisters and human rights lawyers — that have become increasingly inseparable fronts in the struggle for democratic transition in Myanmar. With modest political liberalization, and a generally decreased risk of lengthy prison terms, more Burmese lawyers are willing to take on potentially sensitive rights cases.

Following long periods of hospitalization, victims of the violent repression were finally in a place to embark upon the challenge of holding perpetrators accountable. On 11 March 2015, a group of monks led by U Teikkha Nyana filed criminal and civil suits against Home Minister Lieutenant General Ko Ko, who ordered the crackdown, and others. The case is a “fight for justice and to highlight human rights violations and the lack of rule of law in Myanmar,” Aung Thein, a lawyer involved with the case, explained to me at the same meeting in April.

Monks have become increasingly common litigants in Myanmar, although sometimes causing major polemics such as the ultra-nationalist monk U Wirathu. Civil resistance can help weaker groups increase their leverage over oppressors, while rights lawyers can serve to both maintain activists’ legitimacy and offer some protection against arbitrary abuse. Legal procedures force the state to articulate its persecution in legal terms. When the state clumsily insists on the legality of arbitrary persecution of civil resisters, for example, it often produces a backfire effect and further delegitimizes the state’s position.

On 24 March, the monks’ charges against the Home Minister and police were rejected on the grounds that no lawsuit can be filed against officials who are operating in good faith — a blow to hopes of institutionalizing accountability. Nevertheless, I have been told further legal challenges are likely to follow.

Meanwhile, protests spread as repression intensifies

Police violently evict farmers working near Letpadaung copper mine in 2013. Flickr/Han Win Aung. Some rights reserved.

Despite the police crackdown, demonstrations continued at Letpadaung and began to swell around the country as others joined in solidarity, directing their resistance toward the Chinese companies involved in exploitative environmental projects in Myanmar.

Small outbursts at the Chinese embassy in Yangon have continued since November 2013, the one-year anniversary of the violent crackdown on monks. At that time, Tin Htut Paing, a leader of the youth movement Generation Wave, burned a Chinese flag in front of the embassy. He was charged with violating Myanmar’s Penal Code and the Law on Peaceful Assembly and detained.

The next year, demonstrating with the “Black Campaign” students, Tin Htut Paing was arrested again for protesting outside of the embassy along with five others. His lawyer Robert San Aung explained that the six protesters were being charged disproportionately for exercising their freedom of expression.

The group of activists was convicted and sentenced to four years and four months in a May 2015 trial condemned by the International Commission of Jurists (ICJ), a Geneva based organization that promotes human rights through the rule of law, and others. Amnesty International called for their immediate and unconditional release while others asserted that the convictions seriously tainted the legal system in Myanmar.

Naw Ohn Hla, one of the women convicted, said she would continue to fight for others’ rights as soon as she is freed but assumed that the government deliberately gave them lengthy sentences to keep them imprisoned during the countrywide general elections in November 2015. The next day, the court added hard labour to the sentence.

Strategic opening for international diffusion

Myanmar protestors in Yangon. Demotix/Manaw Htun. All rights reserved.

The mine at Letpadaung is a joint venture between Wanbao, a subsidiary of Norinco, a Chinese industrial manufacturing company that also specializes in high-tech weapons, and the military-owned Union of Myanmar Economic Holdings Company. This is a reminder of the important role foreign firms and governments play in developing or hindering the rule of law in Myanmar. This is not just about China.

A 2015 Amnesty International report criticized the Canadian firm Ivanhoe Mines, now Turquoise Hill Resources, and others for profiting from a corrupt or unregulated legal climate for resource extraction in Myanmar.

Ivanhoe Mines was involved in the Monywa Complex since the joint venture began in 1996. Between April 2003 and January 2005, it may have violated Canadian, US, and European sanctions for large amounts of copper sales to blacklisted military firms.  Amnesty has called for Canadian authorities and the securities commission to investigate.

In 2007, Ivanhoe Mines claimed that it was divesting from the Burmese mine and transferred its shares to an “independent third party,” the independence of which has been contested by Amnesty.

A 2009 cable published by WikiLeaks shows Ivanhoe was simultaneously negotiating with Burmese and Chinese buyers but was eventually forced to sell to the Burmese state-owned ME-1 for $100 million, on the grounds that ME-1 had already agreed to sell the mine to the Chinese interest for $250 million plus $50 million in consulting fees and $100 million in upgrades. The sale was finalized in 2011.

Turquoise Hill is currently invested in two mining projects in Mongolia. In May 2015, a deal to sell its shares in the underperforming SouthGobi Mine to a Chinese firm fell through. Meanwhile the company has faced domestic opposition at another of its mine sites. Noted in a recent report by the Minority Rights Group, the Oyu Tolgoi Mine has sparked resistance by local herders, environmental and minority rights groups over the destructive impact of the mine on the surrounding landscape. The parallels to Letpadaung don’t need elaboration.

In their 2015 World Report, Human Rights Watch commented on the “enormous collective impact on the human rights of vulnerable communities worldwide” of Canada’s mining industry. HRW expressed concern that the Canadian government neither regulates nor monitors the respect for human rights of Canadian firms overseas. In 2009, Canada did establish a corporate social responsibility advisory, but has yet to empower it with oversight or investigatory powers over Canadian firms operating domestically or in foreign countries, such as Myanmar.

Broadening resistance strategies

Myanmar will continue to open up to more foreign trade and investment in the coming years. And the government is currently in the process of negotiating a contentious Investment Law. In early July, ICJ hosted a workshop with Myanmar’s Attorney General and others to discuss the investment law and protection of human rights in the country. Daniel Aguirre, ICJ Legal Adviser, commented that, “Myanmar needs to update its regulatory system to protect the environment and human rights.”

At the same time, civil society and human rights defenders may consider updating their strategies of resistance and rights defense. A targeted boycott of foreign-made products from host countries responsible for exploitive industries is one possible next step for national coordination of resistance. Increasing civil society pressure on the political and financial elite of select countries has its limits, as long as Myanmar protects elite interests over those of Myanmar citizens. Resistance to exploitative foreign involvement will require improving transnational activism and communication with activists engaged in similar struggles abroad. Ideally, it would also entail coordinating with networks of human rights defenders in countries whose foreign presence is targeted by civil resisters in Myanmar. This requires financial and logistical support.

International funders interested in supporting rule of law development in Myanmar will play an important role in regional exchange. Organizations like Amnesty and Frontline Defenders have long provided platforms for this type of exchange, but the demand is growing. Imagine the learning potential of combining activists and lawyers who have struggled against Letpadaung with their Mongolian counterparts who have resisted Oyu Tolgoi, or with the organizers of the thousands of Tibetans who have resisted the destruction of sacred or farming land by mining operations across western China. There are other transferable case studies for Myanmar from rights defenders around the world, such as Oscar Olivera who organized the successful resistance campaign against exploitive privatization in Cochabamba, Bolivia by the US construction firm Bechtel.

The upcoming Universal Periodic Review of Myanmar in November, wherein the Human Rights Council will review Myanmar on the totality of its human rights record, presents an opportunity for rights defenders from Myanmar and around the world. It might also provide a platform for putting pressure on other governments to examine their human rights records in Myanmar.

The UPR is a truly unique opportunity for universalizing domestic rights campaigns and forging links with supportive foreign governments. Unfortunately, reports indicate Home Minister Ko Ko will lead Myanmar’s delegation, seriously calling into question the country’s commitment to the process.

Building bridges to broaden tactics of nonviolent resistance

Protesting outside of embassies or burning country flags draws attention but is insufficient for sustainable coalition formation. To guarantee greater accountability for foreign companies operating in Myanmar, and the state officials tasked with protecting the interests of the local and international elite, domestic human rights defenders can target their activism at those firms’ countries of origin and strengthen their networks among human rights defenders in those countries. To complement these efforts, foreign governments with embassies in Myanmar can ensure they are accessible for civil society and guarantee they will not prioritize economic or political alignment with the elite at the expense of substantive commitments to human rights and the rule of law. But international action can only augment domestic mobilization; it cannot replace it.

In the narrative above we see the importance of bridging nonviolent civil resistance with the community of human rights lawyers. While the rule of law is barely poking through the soil in Myanmar, the country has made limited advances in terms of domestic and international law. While such concessions may be more to placate the international community toward abandoning sanctions and stimulating investment, they have created openings for challenging oppression. Addressing resistance to Letpadaung, Ant Maung, a popular poet, commented, “Five years ago this would have been impossible; such a movement would have been cruelly crushed.”

Myanmar has a long way to go but, as Aung Thein noted at our meeting in April, it is time to nurture a domestic culture of litigation. Belief in the rule of law must come from below and strategic litigation should be calculated alongside other tactics of resistance. Through greater training, made increasingly possible by support from international organizations, Myanmar civil society will gain more rights awareness, allowing for more informed rights demands.

At the same time, just as the international community must perform due diligence when supporting top-down initiatives or large-scale investment, it must be cautious in supporting bottom-up programming. Sitting in his apartment in Yangon, Robert San Aung, the idiosyncratic human rights lawyer and six-time political prisoner under the ancien régime, shared his concern with me. Entrepreneurs have emerged to take advantage of legal aid and development funds, just as in other contexts of post-conflict or development, which is upsetting the network of nascent domestic lawyers. For San Aung, funders truly interested in supporting human rights in Myanmar must ensure checks and balances, which can be achieved through deeper engagement on the ground, meaning more language officers and interactions with civil society.

Arguably the way forward for rights defenders in Myanmar is to continue augmenting domestic rights defense with transnational activism and international law, and to continue finding ways to take advantage of the same international opening that has benefited the government.

Follow

Get every new post delivered to your Inbox.

Join 135 other followers