Donald Trump’s proposal to slash UN funding: a threat to international peace and security

Originally published on 24 March 2017 at Open Democracy. Here.

On April first the United States assumes the rotating monthly presidency of the United Nations Security Council amid widespread alarm over talk from US President Donald Trump that his government is considering drastically reducing its financial contributions and involvement in the UN. This could pose a serious blow to the global body tasked with international peace and security.

In mid March, the Trump administration released its “America First” budget proposal. The full budget will not be released until May and will still need to be approved by congress. While the budget proposal has met with bipartisan criticism, longstanding mostly-Republican hostility toward the United Nations and tough talk from the administration gives rise for serious concern. In nearly Orwellian vocabulary, the Trump budget calls for the pursuit of ‘peace through strength,’ while attacking the very institutions working to preserve peace.

In nearly Orwellian vocabulary, the Trump budget calls for the pursuit of ‘peace through strength,’ while attacking the very institutions working to preserve peace. It calls, inter alia, for the elimination of funding for the United States Institute of Peace and a 28 percent reduction in funding to the Department of State. This despite a letter from over 120 retired military leaders addressing the security imperative of diplomacy and development. The budget also calls for unspecified reductions to the United Nations and a cap on US contributions, to not exceed 25 percent of the total peacekeeping budget.

Taken as a reflection of the administration’s priorities, this budget proposal might as well be the pyre upon which peace is sacrificed to strength.

At present, the United States contributes around $2.5 billion, nearly 29 percent of the total $7.87 billion peacekeeping budget. The other top five contributing countries are China (10.29 percent), Japan (9.68 percent), Germany (6.39 percent), and France (6.31 percent).

The UN regular budget for 2016-2017 is $5.4 billion, of which the United States pays 22 percent, around $1.2 billion.

Voluntary contributions cover the humanitarian, development, and human rights work of the United Nations. This includes the Office of the High Commissioner for Human Rights and the High Commissioner for Refugees. These are vital functions for the preservation of peace and security and yet a draft executive order leaked in January 2017 hinted at a 40 percent cut in US voluntary contributions.

The “America First” budget proposal is vague in exact reductions to the UN. However, in what Colum Lynch at Foreign Policy describes as an unprecedented retreat from international operations, State Department officials have reportedly been instructed to slash up to 60 percent of all assessed and voluntary contributions, including a $1 billion reduction in peacekeeping contributions.

Meanwhile, in a clear signal of priorities, the Trump administration has called for a $52 billion increase in defense spending, the United States already spending nearly as much on defense as the next 14 countries combined.

Explain that

The Trump administration is attempting to legitimize its unprecedented retreat from the UN with claims that its present contributions are disproportionate, a hollow argument. As Rosa Freedman, professor of law and conflict at Redding University, argues, “given that the US makes up more than 24 percent of the world’s total GDP, it’s actually contributing less than it should.”

Member State contributions, established by the UN Charter, are apportioned by the General Assembly based on a formula taking into account such things as the size of economy and per capita income. The five permanent members of the Security Council (US, UK, France, Russia, and China) are furthermore required to pay additional shares for peacekeeping given their responsibility for maintaining international peace and security. However, as pointed out by Anjali Dayal at Political Violence at a Glance, “an existing Congressional cap already sets the US’s annual contribution to the peacekeeping budget below the assessed contribution the US is required to make as a UN member.”

Budget cuts on the magnitude threatened by the United States will have the biggest impact on voluntary contributions, particularly important for supporting humanitarian and development efforts. But what is also at stake is the impact on needed reforms already under way, including the mainstreaming of human security, which will require leadership and diplomatic support alongside financing.

An imperfect system

The UN is not perfect. Perhaps two of the most damning examples of recent UN failure are negligence by Nepali peacekeepers in Haiti in 2010 – over 700,000 people were infected and more than 8,500 died from cholera – and a pattern of sexual exploitation and abuse by peacekeepers, especially in the Central African Republic since 2013.

In large part, the pattern of sexual exploitation and abuse by peacekeeping forces across missions has been prolonged by the past hesitation from the UN to name and shame countries whose forces are guilty of such crimes. This, of course, has been a product of political expediency. But this is slowly changing, as the UN is increasingly likely to publically name countries whose troops perpetrate such atrocities and to send guilty contingent commanders or whole contingents home. It is moving to encourage troop-contributing countries to conduct trials in domestic courts, although this remains a challenge, and to refuse future peacekeepers from those countries that fail to uphold human rights obligations. Scholars are also contributing great work to tackling such peacekeeping failures, for example Sabrina Karim and Kyle Beardsley propose a comprehensive gender-sensitive approach to reform in Equal Opportunity Peacekeeping.

There are real concerns but they require reform and leadership by powerful Member States, not abandonment.

Improving the UN now is especially needed in the face of what some UN officials are describing as the worst humanitarian crisis since the end of World War II. The threats of terrorism, the destabilizing effects of climate change, poverty, and gross discrimination that trigger conflict and drive mass displacement, are all serious tests to the preservation of peace and security. But they require more than engorging military budgets.

To tackle such challenges, the new Secretary General, Antonio Guterres, has pledged comprehensive reforms of UN strategy to build and sustain peace. Guterres has also pledged management reform, including accountability, the protection of UN whistleblowers, and gender parity at higher-level positions.

In February 2017, Guterres announced the creation of an internal review board that will move forward with reforms to UN peace and security strategy. The result of this review is expected in June and will produce recommendations that may have financial implications, the implementation of which could be severely limited by the withdrawal of US funds and other support.

The new US Ambassador to the UN, Nikki Haley, has issued similar calls for reform, especially over corruption and accountability for sexual abuse. But her government’s hinted reduction or ending of support for “international organizations whose missions do not substantially advance US foreign policy interests” risks holding the global body hostage to the nationalist interests of “America First” that prioritize American military might over multilateralism and human security.

Rather than approaching peace through strength, as the Trump budget shortsightedly proposes to do, the new administrations’ approach to peace and security must be peace though prevention.

Peace through prevention

In April 2016, the General Assembly and Security Council adopted a joint resolution establishing the concept of ‘sustaining peace.’ The resolution is a reflection of four reports, including the High-Level Independent Panel on Peace Operations and the report on the implementation of resolution 1325 women, peace, and security. Arguably, in drawing together a variety of concepts the year before both the new Secretary General and US President were to assume office, the resolution served as a placeholder for a conversation about the future of the UN in peace and security.

Seeking to operationalize prevention, the resolution calls for “activities aimed at preventing the outbreak, escalation, continuation and recurrence of conflict, addressing root causes… and emphasizing that sustaining peace is a shared task and responsibility…[that] should flow through all three pillars of the United Nations.” The three pillars are human rights, peace and security, and development. They are interconnected and interdependent.

It emphasizes the importance of a comprehensive approach through the prevention of conflict and its root causes, poverty eradication, social and sustainable development, inclusive dialogue, rule of law, transitional justice, gender equality, and the protection of human rights.

Such comprehensive measures by definition require more than the strict reliance on military might and narrow national interest-based approach to international peace and security as put forward by the US Government.

Speaking at the annual high-level panel discussion on human rights mainstreaming in February 2017, Oscar Fernandez-Taranco, assistant secretary general for peacebuilding support, highlighted the need for inclusive cooperation between Member States.

The problem with the US fetish for a bloated defense budget, threatening to retreat from international diplomacy, or constrict funds to the UN is what that would mean for cooperation toward more comprehensive peacebuilding approaches. It could well lead to the opposite, limiting peace operations to stabilization and a minimal approach to peace and security that disregards governance, human rights, or development.

The other big factor, says Ian Johnstone, professor of international law at the Fletcher School of Law and Diplomacy, is countering violent extremism (CVE). If this becomes the principle motivator to establishing peace operations, we are likely to only see significant political support for new missions where there is the threat or perceived threat of terrorism. CVE needs to occur but, again, narrow military solutions and unilateralism are ultimately self-defeating.

The threat of violent extremism presents a dilemma for traditional peace operations, because CVE is generally outside of established mandate parameters. But, as Johnstone writes at Peace Operations Review, drawing from the 2015 Plan of Action to Prevent Violent Extremism, addressing the challenges of CVE within peacebuilding efforts calls for adaptability and creativity. This is precisely where a peace through prevention approach has value, to not only address insecurity but also its root causes through poverty reduction, inclusive dialogue, and the mainstreaming of gender and human rights concerns. Unfortunately xenophobic rhetoric from the Trump administration signals in the opposite direction.

Ultimately, the impact of the Trump administration on the ability of the UN to develop a more comprehensive and preventative approach to peace and security will be based as much on signaling as on financial constraints.

Looking forward

President Trump’s “America First” budget proposal, in name and stated financial commitments, reads as an indictment of multilateralism. The alarming reduction of budgetary contributions to the United Nations will certainly be amended in congressional review, although general hostility toward the UN among the Republican controlled congress indicates some reduction in US contributions is almost certain. However, whatever the ultimate figure it is less likely to derail reform or have as devastating an impact as the signaling of a US no longer interested in the UN.

Cooperation and support from powerful Member States is vital for the UN to serve its function of preserving international peace and security, promoting development, and protecting human rights. This requires diplomacy. Of course, this is not to completely discount the significance of being a membership-based body reliant on dues to hire personnel and support aforementioned peacebuilding efforts.

With the United States assuming the April presidency of the Security Council, notably before the White House issues its formal budget proposal in May, it presents an opportunity for the US to reevaluate its priorities and leadership role in line with the trend of peace through prevention. How the US uses its Security Council presidency, what thematic meetings it convenes in New York for example, will offer further clarity on administration priorities and may provide chances for the other members of the Security Council to negotiate those priorities. Arguably, it also provides non-Security Council government and non-governmental representatives the opportunity to lobby the United States regarding peace through prevention.

A US withdrawal now stands to upset the reforms in theory and practice currently underway and to potentially derail the future of international peace and security.

Japan Detains Movement Leader to Silence Struggle Against US Military Bases

Originally published on 14 March 2017 at Waging Nonviolence. Here.

On October 17, Hiroji Yamashiro was arrested for cutting a wire fence at a protest against a U.S. military base in Okinawa. He has been held in detention ever since. Yamashiro, the chairman of the Okinawa Peace Movement Center, has been a fixture of the nonviolent opposition to military base expansion on the island for years.

The 64-year-old Yamashiro had undergone cancer treatment in 2015, and medical tests two months into his detention revealed a decline in his health. Nevertheless, since his arrest almost five months ago, he has been held in pre-trial detention — mostly in solitary confinement, denied bail and any contact with his family. Three days after his arrest, the authorities added additional charges of obstruction and assault. A third charge of obstruction was added a month later, for an incident that allegedly took place almost a year earlier.

The two others arrested with Yamashiro also remain in detention.

“Prosecutors have repeatedly gone through pre-trial procedures that are usually not required for petty offenses such as the ones Mr. Yamashiro is accused of, and every time they do that, the date of the first hearing has been pushed back,” explained one of Yamashiro’s lawyers, Shunji Miyake. “I think the prosecutors’ intention is clearly to prolong Mr. Yamashiro’s detention.”

Retired judge Isamu Nakasone agreed, saying, “It’s clear that the purpose of detaining him is to stop the anti-base protests … He took a central role in opposing the military base. His detention is a warning to others, just as construction enters a key phase.”

This January, Amnesty International launched an urgent action campaign for his release, noting, “the arrest of Hiroji Yamashiro, a symbolic opposition figure, has had a chilling effect on others who are peacefully exercising their rights to freedom of expression, association and peaceful assembly. Some activists now hesitate to join the protest for fear of reprisals.”

At a press conference on February 18, six prefectural parliamentarians released a statement reiterating calls for Yamashiro’s immediate release. Their statement read, in part: “This is a political crackdown on the struggle in Henoko and Takae and nonviolent resistance by Uchinanchu [Okinawan people] who are seeking peace and the restoration of their dignity.”

Despite coordinated advocacy, the Japanese Supreme Court rejected an appeal last month for Yamashiro’s release, pending trial. The opening hearing is scheduled for March 17.

A history of resistance

Today, Okinawa hosts some 30 separate American military installations, some in densely populated areas, that are not popular with the local population.

Yamashiro was leading resistance against the relocation of a U.S. airbase from Futenma to Henoko Bay, which is particularly unpopular. According to one survey, 84 percent of Okinawans are in opposition.

In Okinawa resistance to the U.S. military presence has a long and complex history.

In 1952, Japan and the United States signed the Treaty of San Francisco, which ended post-war U.S. occupation of Japan but allowed for the retention of military control over Okinawa. By the time the United States returned overall administrative authority for Okinawa to Tokyo in 1972, 27 years of military occupation and impunity had left a deep impact and also a culture of civil resistance.

In 1955, amid widespread forced demolition and eviction at the hands of U.S. troops, Shoko Ahagon — who lived from 1901-2002 — began organizing Okinawans in resistance. Remembered by some today as the “Gandhi of Okinawa,” Ahagon, a Christian, was inspired by Gandhi’s struggle against British rule in India. In July 1955, Ahagon organized a seven-month march around the main island of Okinawa to raise awareness of mistreatment at the hands of U.S. forces. It was dubbed the “Beggars’ March” in local, U.S.-controlled media. Ahagon also drew up nonviolent principles for resisting the U.S. military that continued to influence the movement even after Okinawa was returned to Japan in 1972, including Yamashiro, who adheres to them.

Some argue that Okinawa’s objection to U.S. military base construction is about more than uncompleted post-colonial independence.

Taisuke Komatsu, U.N. Advocacy Coordinator for the International Movement Against All Forms of Discrimination and Racism, argues that the issue of U.S. military occupation is more about the structural discrimination Okinawans have suffered for decades. He described the situation as a slap in the face to a people who have been neglected by Tokyo for so long.

The delegitimization of Okinawan lives has been further exacerbated by a history of impunity for sexual violence perpetrated against the local population by U.S. military personnel, beginning in the 1950s when six-year-old Yumiko Nagayama was raped and murdered. Several high-profile cases in the intervening decades remain central tenants of anti-U.S. base grievances from Okinawans.

Looking at Tokyo’s present disregard for local civil and political opposition to further base construction reinforces Komatsu’s claims of second-class treatment by the central government.

In January 2013, all of Okinawa’s 41 municipal governors and members of its parliament submitted a petition to Tokyo to block the transfer of the U.S. airbase to Henoko Bay. The next year, rather than ceding to organized local opposition, Tokyo announced it would move forward with its plans.

Following the announcement, protests swelled to several thousand in September and October in 2014, although some had already been occupying the space since 1996, when the proposed relocation was first discussed. Activists swarmed the bay in kayaks. Others marched to nearby U.S. Marine Corps Camp Schwab. Campaigners organized speeches in which Okinawan legislators and others denounced the re-militarization of Japan under Prime Minister Shinzo Abe and the ongoing discrimination of Okinawans. The authorities responded with disproportionate force.

In November 2014, Takeshi Onaga’s election as governor of Okinawa was seen as a victory for the peace movement. Onaga had campaigned on strict opposition to military base construction, unlike incumbent Gov. Nakaima who was sympathetic to base expansion. Before the election, a high-level cabinet secretary said the results of the election wouldn’t impact Tokyo’s plans, and in January 2015, Tokyo kept its promise, announcing that the airbase relocation would still continue.

Since then, demonstrators have maintained a 24-hour sit-in, swarmed the bay in kayaks and organized large-scale demonstrations in Okinawa’s capital. In June 2016, a few weeks after an American working at another U.S. airbase was arrested for raping and murdering a Japanese woman, an estimated 65,000 people demonstrated in the Okinawan capital against U.S. military base expansion.

The Okinawa Peace Movement Center, Hiroji Yamashiro’s organization, has been active in leading nonviolent resistance against the Henoko relocation. His apparent politically-motivated and lengthy detention marks a concerning escalation in Tokyo’s abusive treatment of nonviolent Okinawan activists, which must be countered by an escalation in resistance tactics.

An uncertain future

Prime Minister Shinzo Abe has frequently cited the security concerns of an unpredictable North Korea and increasingly aggressive China as justification for what many have argued is a policy of re-militarization. This influences his administration’s unflinching support for military base expansion in Okinawa regardless of local civil and political opposition.

Japan is clearly entitled to ensure its national security, but international standards are clear that human rights are fundamental to peace and security. It is a shame that Japan seems willing to embrace authoritarian tactics to suppress nonviolent activism in the name of security. Japan’s human rights obligations toward Okinawans resisting further base construction will surely be tested by the new relationship between Abe and the United States under President Trump.

Unfortunately, with the wave of state-level Republican-backed anti-protest bills sweeping the United States and Trump’s own embrace of the criminalizing or delegitimizing of nonviolent activists, Japan is unlikely to find itself rebuked for its repressive handling of Okinawan dissidents unless alternative channels of pressure are strengthened.

In early March, several supporters gathered in New York outside the Japanese consulate, holding banners calling for Yamashiro’s release. A week later, on March 10, Akira Maeda of the Japanese Workers’ Committee for Human Rights criticized Japan before the Human Rights Council in Geneva over its treatment of Yamashiro. Such gestures are an important scaling up of tactics in civil and political resistance to Japan’s persecution of nonviolent activists, aimed at attracting broader international attention.

When local channels of resistance stall, such tactics are often capable of generating new allies and coalitions to pressure domestic governments. What is needed is not only the growth of solidarity networks but also the expanding of resistance efforts that target Tokyo’s international pillars of support. Utilizing U.N. human rights mechanisms — such as the Human Rights Council or the Special Rapporteurs on the freedom of expression, assembly or human rights defenders — are worthwhile moves from Japanese civil society.

Activists in the United States are in a position to pressure the U.S. government — either through letters to Congress regarding U.S.-Japan relations or by including such demands in active efforts against broader U.S. military expansion.

A strong showing of international support for Yamashiro — especially through actions like the Amnesty International letter campaign to Prime Minister Abe, along with a general campaign for an end to Tokyo’s persecution of nonviolent Okinawan activists — may contribute to holding Tokyo accountable. Ultimately, this is not only about Yamashiro’s release but also a guarantee from Tokyo that it will respect the rights of everyone engaged in nonviolence resistance.

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.

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.

In Myanmar, students test the sincerity of democratic transition

Originally published at openDemocracy on 10 June 2015. Also available here.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

In Myanmar, as university students around the world begin to exalt their summer freedom, a national student movement continues to demand greater political freedom. At the end of May 2015 Myanmar’s parliament was still discussing proposed amendments to a National Education Law put forth by a coalition of student groups. The students have expressed their concern over the lack of academic freedom and the centralized control inherent in the law, which was passed in September 2014. Since its adoption, students and other activists have been campaigning around the country. In many ways, the struggle around education reform can be seen as a prism through which to assess the sincerity of democratic transition in Myanmar today.

It began in March 2014 with the release of the draft law. Later, a national coalition of student groups issued an 11 point manifesto. They demanded, among other things, student representation in enacting education legislation, teaching that ensures the freedom of thought, multilingual education for ethnic minorities, inclusion of children with disabilities, and the expansion of compulsory education from primary school to middle school. In November 2014, students in Yangon, the capital, issued a statement explaining that if the government failed to negotiate within 60 days there would be nationwide mobilization.

With little progress toward their demands, on January 20, 2015, they held true to their word. Several hundred students from Mandalay and elsewhere began marching the some 400 miles to the capital to demand negotiation. Less than a week later the government agreed to hold four-party talks. As a show of faith several of the groups marching on Yangon agreed to halt their processions. However, after only a few days the talks stalled. More than 250 civil society organizations pressed for their resumption and several protests were staged around the capital in solidarity with the marching students.

Sustained pressure appeared successful in mid-February when government negotiators surprisingly agreed to the students’ demands. A few days later a new version of the law was sent to parliament for discussion.

Throughout the months of demonstrations students overwhelmingly maintained nonviolent discipline with one noting: “we don’t have any weapons, not even a needle, so if there is a crackdown we will just have to bow our heads and face it.”

A tradition of student activism

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

These students are following a long tradition of student-led nonviolent civil resistance dating back to pre-independence Myanmar. Not long after General Ne Win’s March 1962 coup, students at Yangon University began demonstrating against the military dictatorship and the sudden loss of academic freedom. In early July that year, the military cracked down savagely, massacring between 100 and 1000 students and dynamiting the student union building, the epicentre of student activism since the colonial period. There would be no student unions again until 2010.

In 1974, following the death of U Thant, the United Nations Secretary General from 1961 to 1971, the regime denied him a burial with honours. Thousands of students and monks seized his body and marched to Yangon University, where they buried him close to where the student union stood. The armed forces soon drove tanks onto the university campus and exhumed his body. Upwards of 4,500 students were arrested in the ensuing melee, and some 100 were killed.

Student mobilization was salient in the better-known 1988 pro-democracy movement from March to August. In Unarmed Insurrections, Kurt Schock calls this period the “Rangoon Spring” — Rangoon is the former name for Yangon — in reference to the 1968 Prague Spring, a brief period of political liberalization in Czechoslovakia that ended with military intervention. Amnesty International even established a short-lived office in Yangon at this time. But by September the state responded with pure brutality. The military assumed control under General Saw Maung and the State Law and Order Restoration Council (SLORC). More than 3,000 were killed by the end of the month. Human Rights Watch’s Asia Director, Brad Adams, has called the ongoing impunity for these mass killings an unaddressed wound challenging the rhetoric of reform.

The inspiration and guidance of what became known as the 88 Generation would inspire incremental episodes of resistance and repression that followed. And in 2007, scattered demonstrations that began in April spread around the country reaching around 100,000 demonstrators in Yangon on September 24. This episode is known as the Saffron Revolution, in reference to the overwhelming presence of bright orange and red-clad Buddhist monks among the demonstrators. The spread of images, made possible by social media, of police and military savagely beating monks contributed to the international outcry and condemnation of the regime. In addition to monks, students made up sizeable numbers, as new student organizations such as Generation Wave, inspired by the 88 generation, began to organize and innovate strategies of resistance.

The government loses patience

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Despite a long tradition of student-organized civil resistance, those who began in November 2014 exhibited a stark difference with their predecessors. They were engaging in collective action in an ostensibly democratizing Myanmar.

In November 2010 Myanmar held its first general election since 1990, although they took place amid concerns of intimidation and corruption, as well as laws that strongly favored the military. International election monitors and foreign journalists were banned. Anyone serving a prison sentence was barred from party membership, a questionable regulation in light of the more than 2,000 political prisoners. In April, Lieutenant General Thein Sein resigned from the military and formed the ‘civilian’ Union Solidarity and Development Party (USDP), absorbing several military organizations. USDP won vast Parliamentary representation. A week later Aung San Suu Kyi was released from house arrest, although she is still banned from running in the 2015 election. In the years following, Thein Sein released hundreds of political prisoners and has presided over certain welcome legislative reforms. In response, the United States and European Union have restored diplomatic relations and lifted decades of economic sanctions.

In light of this narrative of political liberalization, one would have hoped that the negotiation of a National Education Law would comport with Thein Sein’s attempts to maintain legitimacy by appearing more sympathetic to political reform. Unfortunately, after the student’s preliminary successes at convincing the Parliament to review their demands, the trajectory began to take a familiar arc.

In February 2015, even as positive negotiations were under way in the capital, several hundred security personnel were being deployed along the route of those marching south from Mandalay. Kyaw Thet, a student from Pathein, about 60 miles from Yangon, told The Irrawaddy: “if they shoot, we will be hit… We have no plans to back down, but we want to say there is no benefit to anyone if violence is used against students. If the government agrees to our demands, we will call off our strike and go home.”

Despite the agreement at the four-party talk, it soon became clear that the Parliament would not welcome student representatives. A few days later the government warned that action would be taken and Minister of Home Affairs Lieutenant General Ko Ko cautioned the organizers that demonstrators would be considered a threat to national stability. On February 16 two foreign freelance journalists were expelled from the country for documenting protests. In early March, police in Letpadan, about 85 miles from Yangon, surrounded the students marching from Mandalay. A tense standoff ensued with students demanding to continue, and the police, who outnumbered them 5 to 1, refusing to abandon their blockade. In Yangon, police assaulted a small group of activists on March 5 who had gathered in solidarity with those at Letpadan. Then, despite the authorities and students appearing to have reached a consensus in Letpadan, violence erupted on March 10.

In a move that was widely condemned by human rights organizations and governments, police and hired thugs, armed with truncheons and riot gear, mercilessly beat back the some 200 assembled students. Some passed out and others were badly cut from barbed wire or suffered broken bones, some were dragged into trucks, chased into the fields, or later snatched from their homes at night. The police also chased away journalists from documenting the abuse but evidence quickly spread through traditional and social media, such as the “We Support Myanmar Students” Facebook page, which, at the time of writing, has generated more than 25,000 likes. Soon afterwards, the Ministry of Information claimed to have arrested 127 people.

By truncheon or by gavel, the law as a repressive tool

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

The police violence at Letpadan, although thankfully low in casualties, bears a striking similarity to the state-sponsored violence of previous military governments. It is a disturbing return to past tactics of repression, says Human Rights Watch. But what seems equally, if not more troubling, is the instrumentalization of domestic law as a repressive tactic. This is part of what Thomas Risse and Kathryn Sikkink call a tactical concession. Repressive regimes will make certain concessions such as signing international treaties, passing new legislation, or releasing a few political prisoners. They do so to attempt to gain a little standing in the international community, to get human rights organizations off their backs, while not necessarily fully implementing such reforms. What this often means is that repressive regimes favour political crimes and show trials over mass killings or disappearances. It is a midpoint between traditional state repression and rule-consistent behaviour.

Of the 127 people arrested over Letpadan some 70 were later charged, such as Po Po, who had evaded initial detention but was rounded up in the weeks following. After the crackdown, the 20-year-old history student Po Po had gone home, where she was arrested on April 8 and brought to the infamous Insein Prison, while many others were held at Tharrawaddy Prison. Most of them have been charged with violations of the Penal Code and Peaceful Assembly Law, some facing the possibility of 10 years in prison. Enraged by the audacity of the state, activists and students in 11 cities around the country carried out protests in solidarity with the detained, prompting further arrests and charges of violating the outdated Penal Code.

The previous UN Special Rapporteur on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana, has called for the abolition or amendment of the antiquated Penal Code, in many ways identical to when it was first enacted in 1860, to ensure that it complies with international human rights standards if there is to be a transition to democracy. Assessing Myanmar’s transition should be based on far more than the upcoming election. As we move closer to the November election we should remain cognizant of the growing numbers of activists behind bars who have done nothing more than engage in nonviolent civil resistance.

In testimony to premature talk of transition, the number of political prisoners since Thein Sein’s much touted amnesty at the end of 2013 has actually increased by nearly 600 percent, according to some figures – the vast majority of whom have been placed behind bars for their parts in various nonviolent campaigns, for violations of the Penal Code and the 2011 Peaceful Assembly Law. This law requires, in Article 18, that organizers obtain permission from township police chiefs five days prior to any demonstration and for any slogans or signs they intend to display. Each violation is prosecutable based on township, which means the students marching from Mandalay could theoretically be charged with a violation for each township they passed through without prior permission. As an indicator of scale, there are 33 townships in Yangon alone. A coalition of more than 50 activists and civil society organizations have been campaigning for years to amend Article 18. The group includes the 88 Generation Peace and Open Society and Generation Wave.

“I would say that Article 18 is related to everything, every issue. Because when people are repressed, while people’s rights are violated, they must have the right to express themselves.” Over an avocado smoothie at a roadside café in Yangon I speak with Moe Thway, co-founder of Generation Wave, one of the more active student movements that came out of the Saffron Revolution, about the detrimental impact of the Peaceful Assembly Law. “My worry about Article 18 is the first rank. It is the most important thing because it is the freedom of expression.”

The freedom of expression is a fundamental right enshrined in Article 19 of the Universal Declaration of Human Rights, which in Article 20 also recognizes the freedom of peaceful assembly and association.

Reform must come from below

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Students have been mobilizing around the country, seizing the right of free, peaceful expression and assembly by protesting, marching, sending open letters, engaging through social media, and negotiating with the state. Those who have been beaten and detained are engaged in active civil resistance to renegotiate the meaning of political participation in a changing Myanmar. In many ways, it is about more than just the National Education Law. In their expression of resentment toward the state, and in the level of national coordination unachieved in decades, the opportunity for civil society to influence social or political policy in Myanmar is great, even in the face of Thein Sein’s demonstrably thin commitment to democratization.

While much of the international attention regarding democracy in Myanmar remains focused on whether Aung San Suu Kyi will be allowed to participate in the elections in 2015 or who will be the next president, the real hope for transition in Myanmar arguably rests with the burgeoning civil society seizing every political opening to demand accountability. The movement around the National Education Law has managed to do what few in Myanmar have achieved since independence: to create a lasting national, cohesive social movement united around a core set of grievances and demands. Students, monks, and other civil resisters will continue to face repression from the state. But Myanmar’s desire to reconnect to the world after more than two decades of isolation also guarantees that the state will be forced to make increasing tactical concessions, leaving further openings for civil resistance.

Revisiting Kyrgyzstan’s Bloody Summer

Originally published by The Diplomat on June 13, 2014. Available here.

Ethnicity is a convenient but misleading way of explaining the outburst of violence in 2010.

Late in the night of June 10, 2010, outside a casino in Osh a skirmish broke out between several groups of young men. A catalyst for greater belligerence, fighting continued through the night and by the morning Osh was in flames. The chaos lasted for days, with violence spreading to Jalalabad and elsewhere. This week marks the forth anniversary of those deadly riots, which sparked a wave of violence in Southern Kyrgyzstan’s Ferghana Valley.

By August 2010, preliminary UN assessments estimated that 985,000 people had been affected by violence in the Ferghana Valley, resulting in 300,000 internally displaced. The International Crisis Group in late August placed the official casualty rate at 393 but Human Rights Watch quoted some numbers as high as 900. What caused such wanton violence in that summer of 2010?

With headlines from the New York Times’Ethnic Rioting Ravages Kyrgyzstan” to the Guardian’sKyrgyzstan killings are attempted genocide, say ethnic Uzbeks” the cause seems clear: ethnic-violence. But that is a dangerous simplification, not least so because it presupposes ethnicity is monolithic. Ethnicity is a convenient but misleading way of looking at what happened four years ago in Kyrgyzstan. And yet, where it is convenient, the cause of ongoing conflicts continues to be superficially discussed as ethnic-tension. Recognizing this is especially important from a policy perspective because if ethnicity is not at the roots of these episodes of violence then an ethnic solution will simply be another nostrum.

From Tulip Revolution to Burning of Osh

In March 2005, the Tulip Revolution brought an end to President Askar Akayev’s authoritarian reign. His fourteen years in power were marked by corruption, the absence of the rule of law, nepotism, and decreasing quality of life. In July 2005, Kurmanbek Bakiyev campaigned to eliminate corruption and improve living standards. He won the presidential election with a landslide 89 percent. Within a few years, however, his campaign rhetoric had proven hollow.

The changes under Bakiyev were seen as an intensified version of Akayev’s despotism. Bakiyev consolidated power in a new Constitution, appointed family members to key positions, and sold vast amounts of national resources for personal gain, leading to severe energy shortages in the winter of 2007-2008, the coldest in 40 years. In April 2008, after two days of popular mobilization, Bakiyev’s short-lived dictatorial reign came to an end but the country, impoverished by years of corrupt rule, was left with a political and security vacuum.

Tensions erupted on the evening of June tenth when groups of unemployed young men got into an argument outside a small casino in Osh. The violence escalated. Independent observers and human rights organizations quoted witnesses who claimed that security forces responded differently depending on the ethnicity of the perpetrators, that plain clothed security officials were seen distributing weapons to Kyrgyz men or protecting roving mobs. The local government, a long-time supporter and ally of the ousted Bakiyev, claimed that Uzbeks were committing atrocities while Uzebks reported being targeted by violence. Arbitrary detentions, disappearances, and torture in custody were reported.

While much of the violence was perpetrated along ethnic lines, the OSCE High Commissioner on National Minorities, Knut Vollebaek, noted the challenges were not confined to interethnic relations and pointed to the significance of disillusionment with the state and feelings of economic and personal insecurity. Indeed, along these lines Kyrgyzstan was very insecure.

Human Insecurity

In 2008 the official minimum wage was 340 som ($6.45) per month, yet the government estimated that the standard statistical “basket” of goods and commodities cost on average 3,354 som per person per month. Following global increases in basic commodity prices, 2007 saw a 23.5 percent increase in food costs and 2008 an increase of around 20 percent.

By 2010, around 43 percent of the population lived below the poverty line, with an unemployment rate of 18 percent. Many families responded by sending off working-age sons to work in Kazakhstan and Russia, and China to a lesser extent, a palliative for economic woes but destabilizing for traditional family structures. The Economist reported that almost 22 percent of GDP was generated from migrant laborers, with as many as 500,000 in Russia alone.

High levels of unemployment and economic uncertainty often result in illegal economies. The UN Office on Drugs and Crime routinely cites Osh as a regional hub for narco-trafficking, which decreases food security through the loss of croplands, environmental security through deprivation of soil and toxic chemicals, and personal security through gang violence.

Disillusionment with the state among certain demographics facilitated the rise of criminal groups who seized land and extorted protection money. The continued asymmetric protection of personal security institutionalized those groups and had a negative impact on social tensions and perceived inequalities.

But why did these tensions erupt along ethnic lines?

The Ethnicization of Insecurity and Competition?

Historically, the Ferghana valley was inhabited by sedentary Uzbek traders and farmers. The Kyrgyz tended to be nomadic. Soviet control irrevocably altered traditional structures of communal power through Korenizatsiya: the policy of local administration initiated under Stalin where titular nationalities – here the Kyrgyz – were elevated to positions of power not necessarily previously held by such groups.

Later, as Soviet regional authority waned, Human Rights Watch explains “grievances over land and water distribution increasingly took on an ethnic dimension during the perestroika and glasnost era in the mid-to-late 1980s, as ethnic, linguistic, and cultural identities became stronger.” Eventually grievances over territory and resource access culminated in a violent outbreak in Osh in 1990.

On the eve of the Soviet Union’s disintegration, precipitated by the vacuum of Kremlin control, an Uzbek group called for the establishment of an autonomous region to address concerns that their needs were routinely subjugated to those of the Kyrgyz. The ensuing conflict left more than 300 dead. KGB reports at the time, cited by the Crisis Group, noted perceptions among poorer Kyrgyz that the Uzbeks had become too prosperous. Meanwhile New York Times coverage was noting Uzbek frustration at the pro-Kyrgyz allocation of land for housing.

This lead to what political scientist Paul Brass has called an “institutionalized riot system,” where ethicized violent mobilization in response to perceptions of unequal access to basic human needs became part of the repertoire of popular mobilization. If anything, the perceptions of unequal access that sparked violence in 1990 only intensified under the policies of corrupt leadership in the following decades.

Under Bakiyev, employment in the public sector was skewed in favor of Kyrgyz language; fluency was a prerequisite for state employment. The education system did not require Kyrgyz fluency for Uzbeks, Dungens or Uyghurs, who were largely barred access to state employment and sought to make their livings in the private sector, fueling accusations that minorities got rich at the expense of the Kyrgyz. However, a Eurasianet article published on the first anniversary of the 2010 violence cited Uzbek feelings of alienation from both political and economic life.

The April 2010 rebellion prompted Kyrgyzstan’s neighbors to close their borders. The de-facto embargo from Kazakhstan, Uzbekistan and China caused severe economic concerns for those who relied on cross-border trade, agriculture, fuel and food imports. Border closure lead to sudden unemployment and deprivation, while perceptions of economic and political inequality stoked the growing tensions.

Nowhere were tensions more noticeable than in the Ferghana Valley. After his ouster from Bishkek, for a time Bakiyev returned to his hometown in the South, where he attempted to mold tensions to retake the capital. To counter Bakiyev’s support network and stabilize provisional authority, the interim government under Roza Otunbayeva reached out to elites within the Uzbek population in the South.

Anthropologist Gerd Baumann asserts that ethnic identity is often found in the social processes of maintaining boundaries between groups who perceive these boundaries as ethnic. In this sense the Kyrgyz were political players and the Uzbek were business players.

These boundaries were drawn as much along class and community lines as along ethnic lines argues anthropologist and Central Asia scholar Madeleine Reeves. At the time, she observed that the oft-reported targeted violence should have been balanced by cases where ethnicity was irrelevant, such as when property was looted because it represented inaccessible wealth and opportunity to the looter or when mixed neighborhoods established self-defense groups from attack not because of shared ethnicity but because of shared feelings of community.

Bakiyev had created rifts in the South for political leverage, which were widened when the interim government called for Uzbeks to be included in the traditional political boundaries of the already economically and socially threatened Kyrgyz population. Longstanding hardships exacerbated by border closures further strained society and threatened human needs. These factors created a violent atmosphere prone to manipulation by elites. Because economic, political and community boundaries had mostly been demarcated along ethnic lines the violence took on an ethnic quality that was not actually at its roots. Ethnic violence was a more proximate factor; the ultimate causes of the conflict were serious economic, political, and social insecurity combined with competition.

Looking Ahead

Revisiting the causes of the violence in the Ferghana Valley in 2010 and questioning the narratives of ethnic tension can yield a transferable understanding to other contemporary episodes of conflict. It is a lesson perhaps particularly valuable in geographically close Xinjiang, for example, where a violent encounter near the Chinese border between a group of Uyghurs and a Kyrgyz border patrol left 12 dead at the end of January 2014. Regardless of the motivation of this group of Uyghurs, as militants or refugees, their illegal entry into Kyrgyzstan was undoubtedly spurred by insecurity in Xinjiang, a conflict that is increasingly characterized along principally ethnic divisions but one that could certainly benefit from a more nuanced examination.