‘If I lose my freedom’: How China’s human rights defenders are preemptively resisting forced confessions

Originally published on 16 May 2017 at Hong Kong Free Press, here.

On May 3, police in Yunnan abducted human rights lawyer Chen Jiangang. He was forced to drive with security over 3,000 kilometres back to Beijing. He remained in their custody for over 80 hours, coincidentally missing the trial of his client, Xie Yang, whose torture he had exposed in January.

At his trial, Xie Yang “admitted” to having been brainwashed by foreign agents, and on Hunan state TV he repeated that he had sensationalised cases and denied that he had been tortured. Xie Yang had anticipated his forced confession.

Xie, detained in July 2015, wrote in a January 2017 affidavit, “If, one day in the future, I do confess – whether in writing or on camera or on tape – that will not be the true expression of my own mind. It may be because I’ve been subjected to prolonged torture, or because I’ve been offered the chance to be released on bail…” Soon after his trial, Xie was released on bail, but he is not free.

It seems police abducted Chen Jiangang to ensure his silence during Xie’s trial, but as soon as he was taken, reasonable fears circulated that he would be “disappeared”. Like Xie Yang, Chen’s understanding of the cruelty of China’s police state bred prescience. Three months earlier he had recorded a video statement to be released if he lost freedom. It was published on the China Change website soon after he was taken.

A sombre five minutes, Chen states that he has committed no crimes and won’t accuse others. Any spoken, written, or video confession will only have been made under duress, threat, or torture. If, in the future, he ends up on television accusing others or revealing names, he asks for forgiveness. Emotionally, he ends with, “If I am seized, dear kids, your father loves you. If I lose my freedom, release this video.”

While such prerecorded statements are becoming more common for human rights defenders in China, still more should learn from those like Chen Jiangang that protecting their clients or themselves also involves controlling narratives. Such statements are an important innovation in protection tactics in response to China’s increasing fetish for disappearances and forced confessions.

China is a fan of forced confessions

Forced confessions violate Chinese law and international norms. For those awaiting trial, broadcasting forced confessions violates their right to a fair trial. Many forced confessions come following hundreds of days in pretrial detention, which itself should be the exception, never the rule, and only for the shortest time necessary. The risk of torture is already high in a criminal justice system reliant on confessions, while the pursuit of forced confessions drastically increases the risk. Victims of enforced disappearance and secret detention are especially vulnerable to torture.

Emblematic is the case of my friend and former colleague lawyer Wang Quanzhang, whose exact fate and whereabouts have not been verified since police abducted him in August 2015. In January 2017, it was revealed that he has been tortured. Likely, Wang’s ongoing abuse is largely due to his refusal to perform a forced confession.

Part of the “709 Crackdown,” several prominent human rights lawyers have been forced to deliver televised confessions, from Wang Yu to Zhang Kai, who later disappeared a second time after he publicly recanted his initial forced confession. A couple months earlier, in June 2016, Hong Kong bookseller Lam Wing Kee also revealed that he and his colleagues at Mighty Current publishing had been forced into confessing, including Gui Minhai who remains incommunicado.

In his televised “confession,” Gui, a Swedish citizen, asked not to receive diplomatic assistance and renounced his Swedish citizenship. This has been rightly dismissed as arising from coercion but what if Gui, like Chen Jiangang, had left a video preemptively dismissing such absurdity? For many who disappear into China’s Orwellian darkness, and reemerge to “confess,” their last credible speech act may be what they leave with others, which in turn may offer some protection.

Scholars have identified the dramatisation of glaring state contradictions as creating opportunity for resistance. In practical terms, if preventive protection measures against certain forms of repression are increasingly adopted, the authorities are more likely to abandon them, ultimately protecting human rights defenders from being subjected to them in the first place.

Preventive protection and forced confessions

Video is powerful and rights defenders at risk of disappearance or forced confession should record their statements rather than just writing them down.

Before recording, it is important to conduct a thorough threat assessment, which should be detailed and constantly reviewed and updated.

Once taken, it is often too late to ask that person what assistance they want. Even if allowed to meet a lawyer, pressure often limits what one is able to say. This is why recording in advance is so important. The message depends on the individual. Gui Minhai could have expressed that he had already given up Chinese citizenship and would never renounce Swedish citizenship. For others it could be stating that they would never accept a state appointed lawyer. Some might want to issue a statement about family members, that except if subjected to threat or torture they would never deny access to the family bank account, a measure the state has used to target family members’ economic livelihood.

It is also important that the video preempts likely accusations, such as noting that under no circumstances but duress or torture would one admit to being a criminal, or denounce colleagues. One might state they have never colluded with foreign forces to cause trouble, that they believe in human rights and the rule of law, respect their work, and would never denounce their efforts to strengthen the rule of law in China, except if under threat to do so.

Human rights defenders should make sure they have a safe contact responsible for sharing the video if anything happens. Sorting out power of attorney issues before detention is vital, even if the state is likely to refuse a meeting with lawyers on other grounds. The person responsible for releasing the video, family members, and lawyers should all be in contact and aware of the video statement.

It is a travesty of the rule of law that anyone would need to think of preemptively recording their own defence against baseless charges and forced confessions but if more human rights defenders did so then potentially the power of this repressive measure will ultimately be lost through the unmasking of contradictions.

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To strengthen digital security for human rights defenders, behavior matters

Article originally appeared on 9 May 2017 as part of the Data and Human Rights discussion at Open Global Rights, and is available here.

Most conversation about digital security for human rights defenders (HRDs) tends to focus on privacy and data protection. This is necessary, but what good is a strong passphrase or Virtual Private Network (VPN) when you are at risk of enforced disappearance and torture by the police? In such situations, even the most seasoned HRD is likely to give up access. A strong digital security strategy adds to protection from physical threats, but for many HRDs operating in hostile environments such threats are sadly inescapable and protection strategies need to be more practical.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention. But technical tools only extend so far after an HRD is detained or subjected to torture by police intent on gaining access. I know very tech savvy HRDs who have quickly given over their passphrases at the threat of torture. No one can judge them. In such horrific, and sadly common, scenarios, a more holistic approach to digital security is needed.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.


The United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst, addressed these multiple insecurities in a February 2016 report, calling for HRDs to foster a culture of ‘holistic security’ that interlinks physical security with digital security and psychosocial well-being. The notion of ‘holistic security’ has been gaining traction in HRD protection frameworks since before 2016 but often in otherwise compartmentalized ways.

On the ground, however, this often means transplanting digital security tools from one context into another alongside other physical or psychosocial strategies, and thinking less holistically about the physical and psychosocial realities of digital security.

This problem is crucial for HRDs operating within authoritarian regimes and shrinking civic spaces, where absent the rule of law there are no such legal protections as habeas corpus, the right to counsel, or freedom from torture. And, as Zara Rahman recently articulated, “technologies are sometimes mentioned or adopted not because they are the most strategic or necessarily useful tools for the job,” but due to uninformed pressure.

Take the most common technical advice offered for enhancing digital security: encryption. Most digital security literature recommends, among others, encryption tools like Protonmail, Signal Messenger, or Vera Crypt. Such tools are necessary but insufficient. Yes, encryption done right ensures that only the intended parties have access, protecting data from third-party monitoring, except the most sophisticated and time-intensive intrusion efforts. But this only offers short-term security in authoritarian regimes.

For several years, I have been working with rights defenders in China, and elsewhere, to develop practical approaches to various protection challenges, including digital security. The project I’m part of is based on the active participation of local feedback groups among the target beneficiaries, and is ongoing with support from Reporters Without Borders and others. Initial conclusions of this project arguably offer transferrable value for HRDs in other repressive environments.

After considerable reflection, my collaborators and I have found that more attention to behavior is critical in providing digital security for HRDs in hostile environments. This means addressing how HRDs relate to and act with the digital security tools they choose to use, how HRDs understand local realities, and how HRDs are supported (or not) based on their specific contexts and threats. This can be called localizing a behavioral approach to digital security.

Here are a few examples for securing behavior from our work so far.

For practical purposes, relying on secure communication tools is important under authoritarianism but, once in detention the concern is less about preventing access than limiting what is accessible. HRDs should adopt dedicated emails for work and maintain a Zero Inbox Policy—that is, always deleting content, either manually or through automatic destruction such as offered in Protonmail, or Signal and Telegram for chat-based communication. This should be standard HRD communication behavior.

Another, often-overlooked behavioral issue, is how HRDs delete sensitive information. Encrypting sensitive data from intrusion is meaningless if it is left easily accessible after deletion through file recovery programs. Several HRDs I spoke with recounted that during police interrogations they were questioned based on whole or partially recovered documents they had thought they had deleted. In short, the way we usually ‘delete’ something does not necessarily delete anything.

Ultimately, any approach to digital security must combine increasing security with a realistic understanding of what behavior is practical. For example, realistically, most people aren’t going to remember the login information to sign into every account they hold, including for shopping or friendly chatting. They would be happy for some passphrases or account details to be saved, and would quickly abandon a procedure that requires otherwise. As such, one of the most practical behavioral approaches is maintaining a dual browser strategy. HRDs should keep one browser, say Firefox, for all rights defense work. Here they use the relevant browser extensions and conventional best practices, with automatic erasure upon exit. On the other hand, they should keep a separate personal browser for entertainment, say Chrome or Opera, in which, for example, non-sensitive passwords can be saved for easy use.

The approach should also be local. This means language localization, as far too many technical tools remain available only with English language interfaces, but above all it means contextualization and regionalization. This is in line with a recent piece by Danna Ingleton, on the importance of recognizing agency and centralizing the experiences of HRDs in their own protection.

In this sense, developing practical digital security strategy requires extending a greater degree of agency to the HRDs who are most affected and who will most benefit. One way to achieve this is for donors to support the creation of local feedback groups, which has been the foundation of the project I have been involved with, whether to inform the creation of new versions of existing digital security guidebooks, identify the most practical behavior for how technology is used, or devise bottom up advise for institutional support.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.

 

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.

Exposing falsehoods in Chinese law: Tibetan language advocate Tashi Wangchuk is no separatist

Originally published at Hong Kong Free Press on 27 January 2017. Here.

A year ago today, Tashi Wangchuk disappeared. He was recently indicted and is now awaiting trial, facing a 15-year sentence for the baseless charge of inciting separatism.

His crime: advocating Tibetan language rights in an interview with the New York Times – hardly a threat to national security.

tashi wangchuk

On 27 January 2015, two cars filled with men not wearing uniforms or presenting identification arrived at Tashi’s home, claiming he needed to go with them to handle some business registration. Two hours later, he was in police custody at the Yushu Public Security Bureau, locked into a tiger chair where he was kept until the following evening, continuously interrogated. They threatened him and his family. They demanded if he was in touch with Tibetan separatists abroad. A few days later, in a different detention center, he was subjected to a week of constant interrogation, during which he was repeatedly beaten by two Tibetan police officers. His family wasn’t notified of his detention until 24 March, 57 days later, when they were told that he was being charged with inciting separatism.

The charge arises from a distorted investigation into the New York Times video carried out in February by the Tibet research branch of the Ministry of Public Security, well before Tashi’s first meeting with his lawyers in June. According to the February investigation, in the video Tashi had intentionally acted to incite separatism, break Tibetan social stability, and discredit China internationally.

Tashi has also been active on Weibo and his last post before being detained is illustrative of the type of vocabulary in the video that the government claims discredits China and incites separatism. As reported by the New York Times, on 24 January, Tashi reposted a comment urging Chinese legislators to enhance bilingual education and hire more bilingual civil servants – hardly the rhetoric of an insurrectionist. The charge against Tashi is absurd.

Tashi does not advocate separatism. He only sought to promote Tibetan language education, guaranteed under Chinese and international law, and to use Chinese law to pressure officials to faithfully implement Tibetan language rights.

International standards are quite clear. Advocating Tibetan language rights is not a crime. The International Covenant on Civil and Political Rights, which China has signed, holds that minorities shall not be denied the right, among others, to use their own language. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which provides further guidance on international standards, also calls on states to take positive measures to create favorable conditions for minorities to develop their language.

In 2013, UN Special Rapporteur on minority issues Rita Izsák voiced concern that defending minority language rights has been associated with separatist movements by some countries where the unity of the state is largely influenced by the political narrative of a “single national language as a means of reinforcing sovereignty, national unity and territorial integrity.” In such countries, assimilationist narratives often extend to every aspect of minority culture, from language to religion, subsuming it under the oppressive myth of national unity through the forced adoption of majority culture. Minority language, as with folklore or custom, are downplayed to the level of tourist attraction for majority amusement. This is widespread in China.

Rather than treating efforts to reclaim rights for minority language and culture as acts of separation, Izsák explains, protecting the language rights of minorities is not only a human rights obligation but also essential to good governance, conflict prevention, and social stability.

That Chinese law supposedly guarantees minority language rights only makes the charges against Tashi all the more ludicrous. The constitution provides that all nationalities have the freedom to use and develop their own written and spoken language. This is also protected in the Regional Ethnic Autonomy Law, which goes on to note educational organizations with mostly ethnic minority students should strive to rely on textbooks and instruction in their own language. The national plan on education reform places similar emphasis on linguistic minority rights. It states that no effort shall be spared to advance bilingual teaching and that minority rights to education in their native language shall be ensured.

Despite such protections, China has incrementally repressed Tibetan language rights with the same increasing ferocity with which it has assaulted virtually every other aspects of Tibetan culture.

Tashi told the New York Times that his passion for language rights campaigning, in part, began with his desire to find a place for his two nieces to study Tibetan after local officials closed a small school where monks had offered Tibetan language classes. Public schools throughout Tibet have largely abandoned bilingual education, approaching Tibetan the same way it would a foreign language, says the International Campaign for Tibet.

Regulations in 2010, that severely limited the use of Tibetan language in schools sparked major protests in Qinghai and lead to an urgent appeal before the Human Rights Council. In 2015, regulations on bilingual education instructed officials to “unswervingly implement the national common language [Mandarin]…to ensure that minority students master and use the basic national common language.” Such policies give rise to the accusations that advocacy for minority language is a separatist attack on politically crafted national unity. This is wrong.

On 10 December, international human rights day, U.S. Ambassador Max Baucus asked, “China’s constitution states that ‘all nationalities have the freedom to use and develop their own spoken and written languages.’  So I ask why Tashi Wangchuk, a Chinese citizen who is deeply interested in education, remains in jail for his peaceful advocacy of Tibetan language education.”

Now, more than a month later, with the stakes for Tashi highly increased, the answer to Ambassador Baucus remains the same, because in China the law only matters as far as it suits the interests of the state.

Indicting Tashi for insisting on nothing more than for the government to uphold its own laws on language rights is as much an indictment against China’s claims to be a laws-based society. Tashi should be released immediately. Instead, the state now seems likely to condemn him to prison to cover its own falsehoods.

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

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

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

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

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

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

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

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

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

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

MC: What happens in September?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eliminating Statelessness in Southeast Asia

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

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

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

The Right to Have Rights

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

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

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

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

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

Statelessness in ASEAN

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

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

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

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

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

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

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

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

Three Approaches for the Elimination of Statelessness

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

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

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

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

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

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

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

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

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

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

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

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

Myanmar: Prisoner Amnesty Highlights the Need for Penal Code Reform

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

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

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

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

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

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

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

Historical Irony

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

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

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

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

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

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

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

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

Inconsistencies with Burmese Law

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

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

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

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

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

Inconsistencies with International Standards

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

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

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

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

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

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

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

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

Time for Penal Code Reform

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

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