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.

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.

Matching resistance to repression in China

Pu Zhiqiang

First Published at openDemocracy on April 8, 2015. Also available here.

Prominent human rights activist Pu Zhiqiang has languished in pre-trial detention since his arrest last May – in the lead-up to the twenty-fifth anniversary of the Tiananmen Square massacre – on charges for several crimes including “picking quarrels and provoking trouble”. His case remains at a crossroads today. Any day now prosecutors should decide whether to indict and begin his trial or hand the case again back to the police for further investigation – meaning more time to conjure up criminal intent. It is unfortunately highly unlikely that he will be released.

Pu Zhiqiang is another high-profile prisoner of conscience suffering under a severe crackdown on civil society under President Xi Jinping since 2013. But is this vocabulary of a crackdown, with its connotations of sudden escalation, constructive?

Throughout 2013 to 2014, I remember many grassroots activists around China relating to me their perceptions that the ferocity of government repression should be understood as steadily increasing pressure, not as a swift crackdown. It is severe and inexcusable, without question, but in this sense it is more similar to the ‘frog in boiling water’ folk tale than the sudden purges of past dictatorships.

For domestic rights defenders, the challenge has therefore become matching their resistance efforts to this sort of slow-onset repression. Rather than pursuing tactics of sudden unrest and demanding high-profile victories, more can arguably be achieved – especially within a high-capacity authoritarian regime such as China – through strategic actions, producing limited but sustained improvements.

The importance of such realizations is universal. Activists and movements that demand sudden systemic change can become upset when they fail in their mission, causing participation to dissipate or making participation in successive waves harder to secure. They may refuse to abandon or adapt their tactics accordingly, such as refusing to evacuate a public occupation until all their demands are met. The world witnessed the gruesome consequences of this logic in Beijing in the early hours of 4 June, 1989.

Observers and analysts began to issue similarly cautious remarks regarding Occupy Central and the Umbrella Revolution in late 2014. Victoria Hui, speaking with the International Center on Nonviolent Conflict, for example, outlined the need for tactical evolution in the form of methods of dispersion, which might garner less publicity but ultimately have more impact. Focusing on more systematic, grassroots, or small-scale change can ultimately be more productive for civil resistance and rights campaigns.

Broad resistance is harder to repress

Mark Lichbach came up with the five percent rule, that no regime can withstand the collective force of five percent of its population mobilized against it. Research by Erica Chenoweth and Maria Stephan actually puts that number even lower, showing that the sustained active participation of 3.5 percent of a population is sufficient for a successful campaign.

While 3.5 percent is a lot larger than it sounds (nearly 45 million people in China), it is not an impossible number. As Chenoweth and Stephan have shown, it’s been done before. But it does require diverse tactics that can appeal to broad sections of society, and the ability to outmanoeuvre repression and think in terms of grand strategy over immediate rewards.

The Chinese government is likely aware of the possible threat posed by sustained collective action achieved through small-scale victories for activists. This, in part, explains the sophisticated attempts to circumscribe collective action and to respond with draconian measures against even minor civil dissent. Indeed, the government is notorious for issuing harsh sentences for moderate voices and activists.

The year 2014 was marked by a procession of reprisals against all manifestations of nonviolent civil resistance and domestic rights defenders, from Xu Zhiyong’s four year prison sentence and Liu Ping’s six and a half year sentence to Ilham Tohti’s life sentence. Figures released by the US-based Chinese Human Rights Defenders indicate nearly 1000 cases of detention and torture of Chinese rights defenders in 2014, with more than 100 detentions drawn from seven provinces and three municipalities as simple reprisals against those who supported the Hong Kong demonstrations.

Much of this repression has come through the manipulation of Chinese law. In this sense it is persecution through prosecution, or what is called legalist repression. The vaguely worded crimes of “Picking Quarrels and Provoking Trouble” or “Disturbing Public Order,” outlined in Chapter VI, Section I of the Criminal Law, articles 290 to 293, have become a canvas applied to virtually anything the state finds discomforting. However, far more serious crimes have also been conjured to silence rights defenders, such as the appalling life sentence for Ilham Tohti on absurd charges of separatism.

There are several lessons in this for domestic actors and those who would support them – particularly the importance of steady, strategic development and a focus on details. This requires recognizing the dynamic between rights abuse and repression on the one hand, and the interconnectivity of resistance tactics on the other. Put another way, because repression is most often the context for a series of rights abuses, resistance that is too narrow is also more susceptible to persecution. The Chinese rights defence community has begun to recognize this.

For example, what begins as a land rights violation or forced eviction can escalate into a situation of arbitrary detention or disappearance of villagers who intervene between developers, hired thugs, police and local officials. Village petitioners might blockade township government offices or issue open letters. Some have resorted to mass public suicide. They also travel from the village or township to cities seeking government redress, file open information requests to expose the corrupt development negotiations, or organize small campaigns against corruption. By doing so, they may find themselves detained in black jails and abused by thugs or charged with illegal assembly.

Some turn to citizen lawyers or licensed lawyers for support at different stages. More tech-savvy petitioners and rights defenders post evidence of land theft and abuses to Weibo and other social media, or communicate with domestic or international media and organizations, at which point some might be arrested on charges of sharing state secrets. Sometimes the victim, jaded by an endless petitioning cycle, sees independent candidacy in local elections as a means of holding officials accountable.

How to protect a movement from state repression

Effective rights defence campaigns and civil resistance must prepare for the protection challenges of steady state repression. For a time, certain civil society actors such as lawyers, journalists, scholars, petitioners and labour, land or LGBT rights activists were focused on narrower solutions to their own causes. The mentality is shifting, however, in favour of more coordination and horizontal networking between groups.

This is not to say that issue-specific rifts don’t still exist. I’ve been frustrated in conversations with licensed rights lawyers who claim that grassroots ‘barefoot’ lawyers aren’t worth collaborating with. Similarly, freedom of religion activists have told me that gender issues aren’t an important civil society concern or that women don’t make as good ‘barefoot’ lawyers as men. But the broader preference is a trend toward more integrated communication and exchange.

These are among the lessons I have learned from nearly five years of supporting civil society and human rights in China.

The main protection challenges stem from the government’s manipulation or outright disregard of domestic law. However, despite the more traditional inclination of civil resisters to work outside of established state institutions, couching resistance in Chinese law has a demonstrated benefit.

The police often illegally detain rights defenders and activists. In some cases merely the presence of a lawyer or ‘barefoot’ lawyer may force the police to release the arbitrarily detained individual or at least begin proper legal proceedings. While the charges may still be contrived, operating within the legal system is preferable to disappearances or prolonged detention and is also advantageous to sustained rights defence and gradual normative change. Furthermore, even a flawed trial often supports greater coordination of civil resistance or advocacy campaigns than more illegal alternatives such as disappearance or detentions without trial.

The degree of international attention and domestic pressure and the profile of the activists are important factors in the effectiveness of rights defence. The Nobel Peace Prize-winning Liu Xiaobo is unlikely to be released from prison any time soon nor will Gao Zhisheng realistically be free of revolving detention and harassment despite considerable domestic and international advocacy. These high-profile cases are important to the central government and maintaining a strong stance is related to demonstrating their supremacy. On the other hand, in 2005 Rebiya Kadeer was released from prison and permitted to leave China following international advocacy. More recently, in 2011, following sustained domestic and international efforts, journalist Qi Chonghuai was transferred out of Tengzhou prison where he was being savagely beaten under direct order of local officials.

While Beijing likely later grew to regret releasing Rebiya Kadeer, these cases demonstrate that concessions have been made but only in cases where the central government doesn’t have a direct interest in the detention. One of the most successful tactics in rights defence and civil resistance to date is recognizing and capitalizing on cases where central and local government interests do not overlap. Although no easy task, identifying targets for support within the pillars of the state can have a drastic impact.

What role can the international community play? Recognizing the differences on the ground and the specific needs of Chinese rights defenders and civil resisters is essential. This can be accomplished through greater support of civil society, especially through increasing attention to activists outside of Beijing and Shanghai, supporting less high-profile rights defenders and activists throughout the country. Pressure must also come from within Chinese society. The greater rights defence campaign successes have tended to come most from domestic organizations working from the grassroots.

This can be achieved through the creation of space. Chinese rights defenders and activists must be provided greater opportunities to simply come together and exchange ideas and skills. This can be done through more training programmes and experience sharing but also just through creative ways to gather freely. While digital networking is important for direct exchange in individual cases, the sustainability of a rights movement is built on face-to-face interaction. This increases trust and supports more intimate exchanges about grievances and tactics.

Furthermore, as activists around the world know, you don’t always need a strict schedule of events and curriculum; sometimes just facilitating gatherings of activists is the best way to support the development of rights awareness and resistance tactics. Again, the government of China is aware of such moves, which is why it responded mercilessly to the New Citizens’ Movement dinner meetings and the small apartment gathering organized by the Tiananmen Mothers in 2014 for which Pu Zhiqiang was detained.

Additionally, increasing awareness of the needs and limitations of front line rights defenders in China can be reflected in more flexible donor contributions, through international organizations or government mechanisms, to support small initiatives and start-up organizations. The Chinese government investigates and has persecuted foreign funded Chinese organizations and individuals receiving money from abroad. Leaking state secrets continues to be an opaque legal charge and method of repression, as with Gao Yu, and many activists have been detained or had funding seized for collaborating with international donors. Financial security for domestic activists is a serious challenge and should be part of the agenda of international rights defence support moving forward.

This assessment is far from comprehensive. These are some of the principal means of state repression and small tactical changes that Chinese rights defenders and activists engaged in civil resistance campaigns have begun to recognize. Focusing on more daily routines and details rather than higher profile events is an important step for the sustainability of civil resistance and rights defence in China. The utility of such principles, however, is not confined to China.

A common refrain among activists in many countries is that their struggle is unique, oppression too institutionalized, dictatorships too brutal, or causes not well supported by the international community. One can differentiate between the conditions for domestic resistance in China, Zimbabwe and Russia from the United States, Spain and Australia but civil resistance trainers are wont to repeat that conditions do not dictate outcomes.

While specific country conditions do not determine the outcomes of resistance, they do affect the availability of tactical options for a given act or campaign of resistance. And recognizing the importance of building sustainable campaigns through a series of small-scale victories, matching resistance to repression, and horizontal networking are therefore not only important guidelines for civil resistance in China. They also have universal value.

In China: Citizenship on Trial

This article was originally published in a shortened version on 7 February 2014 at Waging Nonviolence. Available here.

Last week China observed the lunar New Year. The Spring Festival is celebrated with two weeks of fireworks and food, when hundreds of millions of Chinese travel home to be with their families, but this year a group of activists will be conspicuously missed as their families ring in the year of the horse. The Chinese Communist Party scheduled the majority of trials for some 20 activists related to the New Citizens Movement for the week preceding the Chinese New Year with the expectation that the overlap would diminish public awareness of the trials.

When Xi Jinping became the new president of China in March 2013 there was a general feeling, although perhaps naïve, that he would be more politically liberal than his predecessor, Hu Jintao. Even before assuming full position, in early 2013, Xi Jinping was inspiring hope for reform by calling for a comprehensive crackdown on graft. Corruption, mainly related to illegal demolitions and evictions, health and labor exploitation, is a serious issue in China. It is at the source, in one form or another, of the majority of demonstrations, online campaigns, legal challenges, and millions of petitions filed every year. However, the jubilation over his declared war on corruption soon receded with the parallel crackdown on civil society activists, many whose principal grievance ironically was corruption.

The year before, Xu Zhiyong, a well-known human rights defender, had published an article calling for enhanced civil society participation and this impetus soon became the spirit and master frame of civil society activism and the government’s response. In certain respects, Xi Jinping’s repressive policies against civil society participation in the first year of his administration as much created the New Citizens Movement as a unified movement as the activists who have been or are awaiting trial for their involvement. Who are some of these individuals? What are their grievances and how have they mobilized?

The Jiangxi Three and Other New Citizens

On April 21, 2013 Liu Ping, Wei Zhongping, and Li Sihua, along with nine others staged a demonstration in Xinyu, Jiangxi Province. They posted photos online of themselves holding posters in solidarity with several recently detained activists. A week later they were detained. While most of the demonstrators were subsequently released, the three organizers were arrested on charges of ‘gathering a crowd to disturb public order.’  On December 3rd, 2013 the Jiangxi Three would become the first group formally tried in relation to the New Citizens Movement. But these three were far from new to civil resistance and their singling out is as much related to their previous activism as their association with the nascent movement.

Liu Ping had been forced from her job at a steel plant back in 2009, around which time she began petitioning for worker’s rights. In 2011 she decided to run as an independent candidate in a local election. Two days before the vote she was arbitrarily detained by police. Professor Yu Jianrong of the Chinese Academy of Social Sciences posted an online appeal, which was reposted nearly 70,000 times. Liu Ping was released but still barred from running in the election. Wei Zhongping, like Liu Ping, began his activism on worker’s rights and has also campaigned for housing and land rights. He too ran as an independent candidate in 2011, and 2006. Li Sihua had on numerous occasions campaigned for China to ratify the International Covenant on Civil and Political Rights and was also an independent candidate in 2011. Following their failed electoral bids, the three activists were subjected to relentless persecution but their trial was far from isolated in the repressive political climate of 2013.

Liu Yuandong stood trial for his part in the New Citizens Movement in Guangdong province on January 24th, amid the flurry of summary trials preceding the Spring Festival. Liu Yuandong, at the helm of a loose network of activists in southern China, holds a PhD in biology. In February, he was detained for staging demonstrations against North Korean nuclear tests and two months later was arrested on charges of disturbing public order.

On March 31st, several Beijing activists unfurled banners and made anti-corruption speeches in the crowded Xidan shopping area. Among them were Li Wei and Ding Jiaxi, whose trials both begun on January 27th but were postponed until after the Spring Festival when they dismissed their lawyers. Several of the New Citizens Movement trials have been tactically postponed in order to extend public attention of the proceedings beyond the holiday. Ding Jiaxi is a rights lawyer and has been a champion for the rights of migrant worker children since 2010, while Li Wei is an unemployed petitioner. Veteran activist, Zhao Changqing was also part of the March demonstration.

A student protestor during the 1989 Tiananmen pro-democracy movement, Zhao has been imprisoned three times in his career of civil resistance, focusing on the right to education and anti-corruption. He has been active both in the streets and online. At the time of their detention in April 2013, rights defenders cautioned that the repression would engender further unrest. And it was only a few days later that the Jiangxi Three were protesting for their release. Countless others around the country would soon be equally emboldened to demand civil and political reform, inspired by an impassioned article written by Xu Zhiyong.

The Radicalism of Xu Zhiyong

Debonair in a pinstriped shirt with French cuffs, Xu Zhiyong posed for the cover of the Chinese version of Esquire, with a black leather bound legal pad and slightly cocked head he looked the part of the issues theme, Chinese Dream. His dream for China was a country that could be free and happy, where no citizen needed to go against her own conscience. That was in 2009, a year after he made headlines for himself by defending countless families affected by melamine poisoned milk powder but even as he was honored on the cover of Chinese Esquire he was under detention on spurious charges of tax evasion for his nonprofit Gongmeng (Open Constitution Initiative). He was released but the organization was shuttered on the tax evasion charges, which came suspiciously soon after Gongmeng sponsored research into the deadly March 2008 Lhasa riots. He continued his rights defense and lecturing at a university in Beijing.

Xu Zhiyong completed his doctorate of law from Beijing University, classmates and later partners with other high profile human rights defender Teng Biao. Liu Hua, whose husband had been a village chief until he tried to uncover local party corruption and was driven from their home to living in a tunnel in Beijing, recalls the day Xu Zhiyong found them in 2003. She recalls, “He used to come all the time, bringing us quilts that people had donated and he even slept there for three nights so he could experience what it was like.”

After graduating Xu Zhiyong and Teng Biao helped to organize a sophisticated campaign that utilized fledgling online tools in coordination with legal challenges and traditional collective action to abolish an abusive system of arbitrary detention known as Custody and Repatriation. A few years later Xu Zhiyong was at the forefront of campaigns against the even more arbitrary ‘black jail’ system. He also served as an independent candidate in his local Beijing district legislative body stating, “I have taken part in politics in pursuit of a better and more civilized nation.”

One of his clients remembers, “My impression of Mr Xu is that he is a moderate and prudent man. I have a hot temper, and once I yelled at him for a long time. But after I was finished, he simply asked me to calm down and said things would only be resolved when we were calm.” Xu Zhiyong is often depicted in media in this light, as the equanimous proponent of moderate reform. However, Eva Pils, law professor at the Chinese University of Hong Kong, and Joshua Rosenzweig, a human rights researcher, argue that the China envisioned by Xu Zhiyong is in fact a very radical position in the one-party state. To think of him as a moderate does a great disservice to Xu Zhiyong and the “force of popular resistance he and others have successfully coordinated.” The only thing moderate about Xu Zhiyong, they write,  “is his unwavering advocacy of non-violence.” It is this radicalism and unwavering commitment to strategic nonviolence that encapsulates the New Citizens Movement.

A New Citizens Movement, What’s New?

The New Citizens Movement is an innovative, multi-issue campaign for systemic change, based on institutional and extra-institutional tactics, from launching legal actions, filing freedom of information requests, and staging demonstrations online and in the streets. In the article that called it into being in 2012, Xu Zhiyong writes that is political, championing the end of authoritarianism; social, seeking to destroy corruption, the abuse of power, and the gap between rich and poor, by building new foundations of justice; cultural, to cast off the culture of oppressor and oppressed; and progressive, in heralding a new civilized humanity. “The goal of the New Citizens’ Movement is a free China ruled by democracy and law, a just and happy civil society with ‘freedom, righteousness, love’ as the new national spirit.” It is a spirit that must, “appear on the Internet, flourish in the streets, and, most of all, take root in the deepest part of our hearts.”

The New Citizens Movement is “the lawful defense of citizens’ rights, citizens’ non-violent non-cooperation, and peaceful democracy, all under a new system of ideas and discourse,” a discourse that is not ‘overthrow’ but ‘establish.’

At the core of the New Citizens Movement is the citizen, as an independent, individual, political, and social actor responsible only to the laws that have been commonly entered into. What is important is civil society participation through regular mealtime conversations, political discussions, attention to public life and policy, and community service. Xu Zhiyong’s call to action is,

“Repost messages, file lawsuits, photograph everyday injustices, wear t-shirts with slogans, witness everyday events [specifically referring to the phenomenon of standing in a circle around someone causing a scene to witness it], participate or openly refuse to participate in elections, transcribe [things that you see happen], hold gatherings or marches or demonstrations, do performance art, and use other methods in order to jointly promote citizens’ rights movements and citizens’ non-cooperation campaigns—such as assets reporting, openness of information, opposition to corruption, opposition to housing registration stratification, freedom of beliefs, freedom of speech, and the right of election. Practice the New Citizen Spirit in action. Citizens’ power grows in the citizens’ movement.”

Granted, the activists involved in the New Citizens Movement crackdown were not radicalized by Xu Zhiyong’s article; they were mostly veteran activists. But his moving words provided a master frame for dissent, which served to galvanize civil resistance and political repression. As the Chinese New Year celebrations culminating in the Lantern Festival on February 14th wind to an end, as the last fireworks sparkle and the mountains of red paper are swept away, Ding Jiaxi, Li Wei, and others will return to court for exercising their rights as citizens. As Human Rights Watch researcher Maya Wang observed, “the government is redrawing its red line about what is allowed, and clearly street action with a clear political theme is not allowed.” But, despite the arrests and the trials, no doubt New Citizens Movement inspired street action will continue in the Year of the Horse.

“5 overlooked activist victories in 2013”

On 31 December Wagingnonviolence published their 5 Overlooked Activist Victories in 2013. I am proud to be a contributor to Wagingnonviolence and especially proud that my contribution on cyber resistance in China was number five on their list.

The editors write:

Activists experienced some big wins in 2013 — from the overturning of the Defense of Marriage Act to the ruling against stop-and-frisk in New York City to the revelations uncovered by NSA whisteblower Edward Snowden to an averted U.S. war with Syria. It’s not hard to find mention of these big stories on most year-end news lists. So rather than re-hash them here, we present you with a list of overlooked activist victories from the past year.

The five victories are (1) People power continues to win in the Philippines; (2) A big win against Big Coal in the Pacific Northwest; (3) A sleeping giant wakes up in Brazil; (4) A victory for millions of indigenous people in Mexico; and (5) Online activists gain political clout in China.

I have been on hiatus the last few months, partially traipsing around Southern China and Laos. I look forward to updating content with some travel narratives and some other exciting analytical pieces in the next few weeks. Back by popular demand, happy 2014…