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The situation of the Rohingya people in Burma remains dire. Even as President Thein Sein has launched political and economic reforms to move the country away from its authoritarian past, and even as Aung San Suu Kyi, Burma’s champion of human rights, has been freed from house arrest and is now in the middle of an historic, emotional, and heavily publicized visit to the United States, there is still a threat of genocide for the Rohingya.
With this in mind, Christine Lim traveled to the campus of Columbia University on Sept. 14 for a discussion titled “Burma in Transition: Minorities, Human Rights, and Democratic Process.” Speakers for the event were Amartya Sen, 1998 Nobel Prize laureate in Economics; Wakar Uddin, director general of the Arakan Rohingya Union; T. Kumar, director of international advocacy for Amnesty International USA; and Elaine Pearson, deputy director of the Asia Division at Human Rights Watch.
Opening the event was Wakar Uddin of the Arakan Rohingya Union and the Burmese Rohingya Association of North America. His graphic, eye-opening slideshow relayed the horrific facts of everyday life for the 800,000 Rohingya Muslims who live in Burma as a stateless minority with virtually no rights, having been stripped of their citizenship in 1982.
Even those who have lived in the country for generations are denied citizenship and birth certificates, Uddin said. They need permission from the state to reproduce at more than the replacement rate, marry, or travel outside their villages. Illiteracy is incredibly high among Rohingya, and fewer than 1 percent of them graduate from high school. Uddin described land confiscation, arbitrary arrests, and forced labor as rampant, and incidents of armed child soldiers waiting outside mosques to ambush attendees. He also said that the police routinely engaged in a practice officially known as “population reduction monitoring,” illustrating the sinister-sounding policy with a photograph of an old man shot to death.
Uddin declared that the Burmese government’s “massive ethnic cleansing” of the Rohingya, carried out with the help of the military, amounted to genocide and that full citizenship for the Rohingya was the only viable long-term solution. To this end, Uddin called on the audience to pressure the international community not only to supply aid but also to press Rangoon to repeal the 1982 citizenship law. He also urged the current Burmese government to grant the right to return to the estimated 1.5 million Rohingya who have fled to neighboring countries.
Elaine Pearson of Human Rights Watch said she recently visited Burma and did see some unexpectedly good changes in limited areas such as Rangoon, but that in Arakan the situation had only gotten worse. She expressed hope that Aung San Suu Kyi would take a more definite stand on the Rohingya issue during her tour of the United States.
Although Suu Kyi has shown concern over other Burmese social issues, such as the continued recruitment of child soldiers and prostitutes, she has remained silent regarding the treatment of the Rohingya minority in Burma. When asked during her June visit to Oslo, where she received the Nobel Peace Prize she was awarded in 1991, whether she thought Rohingyas should be considered citizens, Suu Kyi replied, “I do not know.”
Pearson pointed out that President Thein Sein and the National League for Democracy, Suu Kyi’s party, agreed on the confinement of Rohingyas in refugee camps and warned listeners not to be misled by the romantic idea of “cease-fire capitalism,” borne of the highly publicized peace agreements, signed but not acted upon, between Rangoon and military forces representing ethnic minorities. She said it was dangerous that civil society had been left out of discussions about the distribution of limited natural resources, since ethnic minorities were likely to lose out as a result. Pearson also stated that military reform would be necessary for positive steps toward democracy and human rights, because the military was currently “not on board” with those goals.
T. Kumar, of Amnesty International USA, spoke in greater detail about the difficulties of attending school, finding a job (as opposed to forced labor), or seeking medical care without citizenship and the right to travel freely.
Amartya Sen, the best-known of the speakers, urged listeners to keep a sense of balance with regard to the plight of the Rohingya, to avoid being either too discouraged or complacent about acting to improve matters where possible. He characterized the issue as a modern problem not only of human rights but of citizenship, saying what was necessary was a non-sectarian approach that truly sought to understand the tensions between ethnicities, as the problem was a complex one, stretching across religious, ethnic, and linguistic boundaries, and could not be solved by what he called a kind of wishy-washy “secularism” that insists upon giving the same five minutes of recitation from various holy texts before every communal gathering.
In a speech at the Asia Society on Sept. 18 in Washington, DC, Suu Kyi touched upon the conflict in Rakhine state, though she limited her discussion to abstract principles rather than concrete policies, such as the granting of citizenship, framing them as the responsibility of the government, as opposed to that of her party, the NLD:
“The government has formed a commission to look into the situation in the Rakhine. The NLD [. . .] want to give the government all the opportunities it needs to diffuse the situation there and to bring about a peaceful settlement. We do not want to criticize the government just for the sake of making political capital. We want to help the government, in any way possible, to bring about peace and harmony in the Rakhine state. Whatever help is asked from us, we are prepared to give—if it is within our ability to do so. But it is not for us—we are not in a position to decide what we do and how we operate—because we are not the government. I think this has to be understood by those who wish the NLD to do more. What we can do is to declare our principles and our preparedness to help in every way we can. [. . .] But I am not going to talk about the Rakhine issue in greater detail now.”
Part 2 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 2 in the course is titled Introduction to the UN human rights system. The first section lays out the purpose and structure of the United Nations human rights system. Given the course objectives, this section delves right into the most pertinent part of the UN Charter—Article 55, which reads:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Here we see a differentiation between charter bodies and treaty bodies. The former are those which have been created using the authority of the UN Charter. “They are political bodies, meaning that either members of the body represent their governments or individuals are appointed to their role by governments. Charter-based bodies can address issues in any country, but it is important to keep in mind that their political nature also has an impact on their effectiveness.” In contrast, treaty-based bodies get their authority from UN human rights treaties (legal agreements between states). “Treaty bodies are considered more effective than Charter bodies, as they come from legal instruments. However, they can only address issues in states that have accepted the treaty.”
Nongovernmental organizations (NGOs) also play a pivotal role in the UN human rights system by providing support and lobbying the UN and its member states. Roles of NGOs include:
- Contributing to policymaking and legislative debates at the international, regional and national levels
- Highlighting issues concerning violations and abuses when governments and international organizations tend to be ineffective or even silent
- Bringing such issues to the attention of monitoring bodies operating under the auspices of international and regional organizations
- Providing information available to the various monitoring bodies and procedures
- Submitting cases on behalf of individuals where bodies or mechanisms permit
- Identifying needs for technical assistance projects and contributing to their implementations
- Putting political and public pressure on governments to live up to their obligations under the human rights instruments
- Lobbying for more effective implementation of existing standards and mechanisms and for the creation of new ones
After considering some of the constraints NGOs experience within the UN, we move on to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM). Per MRG, “A declaration is a statement of the aims or ideals of states. Declarations apply to all states; however, they are not legally binding. . . . UNDM is not the only UN instrument protecting minority rights, but it is the first and only one addressing the rights of minorities in a separate document. The UNDM constitutes the main UN reference for minority rights.”
Article 1 protects the right to existence and identity and to expression of identity through culture, religious practice, and use of language. Article 2 protects the right to participation—both in public life and in decisions affecting the minority. The UNDM grants members of minorities the right to exercise their rights freely and in community with others in Article 3.
Under the UNDM Article 4, states must not discriminate against minorities and they should create the conditions necessary so minorities may develop their culture. States must take measures so that minorities can learn their mother tongue and encourage knowledge about minority cultures within the country. Minorities may not be excluded from economic development.
The UNDM also provides in Article 5 that when national and international programs are being designed, the interests of minorities should be taken into account. Article 8 reiterates that special measures taken to implement the UNDM by redressing historic marginalization of minorities are not discriminatory. Another provision of note is Article 9, which states, “UN Agencies should contribute to the realization of the rights in the UNDM.” MRG explains, “This is an important provision, because it means that all UN agencies, such as UNDP, UNICEF, ILO, etc., should be paying attention to minority rights within their areas of work.”
Although minority rights are not the only protection necessary to prevent genocide, where minority rights are lacking or altogether absent, the likelihood of genocide—or any other type of violent conflict involving minorities—is that much greater. As Minority Rights Group International (MRG) wrote in a 2004 briefing paper, titled “Genocide and Minorities: Preventing the Preventable,”
“The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities captures the spirit of the Genocide Convention in that it emphasizes that the right of national, ethnic, linguistic and religious groups to physically exist is not enough: states have a duty to protect the existence and identity of such groups (see Article 1  of the UN Declaration on Minorities). Governments must respect and support the rights of minorities to use their own languages, enjoy their cultures, profess and practise their religions, and participate effectively in public life.”
The authors of the paper also note:
“Sustainable prevention requires the development of ways for groups to at least peacefully coexist, and in time to integrate on the basis of shared values and interest. This implies the entrenchment of the rule of law based on the full and equal respect for human rights, including the rights of persons belonging to minorities, and governance for the good of the whole population. The principles of non-discrimination and effective participation in public life both protect minority groups and ensure that their voices are heard in decision-making.”
With that in mind, this post marks the first in a series by Marissa Goldfaden as she works her way through a new online course offered to the public free of charge by MRG, “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy.” The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
The first course topic is basic concepts in human rights and minority rights. The first question posed is, Who are minorities? MRG uses the following working definition: The term minorities refers to ethnic, national, religious, linguistic or cultural groups who are smaller in number than the rest of the population and may wish to maintain and develop their identity. In differentiating between minorities and indigenous peoples, MRG provides another definition: Indigenous peoples are distinct ethnic communities who are the first inhabitants of a geographical region, and whose identities and cultures are inextricably linked to the land on which they live and the natural resources on which they depend.
The next section poses the query, What are human rights and minority rights? Human rights are freedoms and entitlements that all human beings have because they are human. They are to be enjoyed without distinction of any kind, such as race, color, sex, language, religion, political and other opinion, national or social origin, property, birth or other status. This means they are universal. There are different categories of human rights, all of which have equal importance:
- Civil and Political: These rights protect people’s status and participation in the public sphere, e.g., the right to be free from torture, the right to a fair trial, the right to freedom of opinion and expression.
- Economic, Social and Cultural: These rights concern material and social welfare, e.g., the right to education, the right to health, the right to work and fair conditions of work.
The three main elements of minority rights are non-discrimination, protection of identity, and effective participation. There are two types of discrimination: direct and indirect. Direct discrimination is less favorable or detrimental treatment accorded to an individual or group of individuals due to their possession of one or more specific characteristics (for example, ethnic group, religion, language or sex). Indirect discrimination is when a practice, rule, requirement or condition outwardly appears to be neutral but it impacts negatively on a particular group in a disproportionate way. Protection of the distinct identity of a minority group in a particular country means that governments must guarantee the physical existence of that group. This means protection from genocide, forced expulsion or ethnic cleansing, and forced assimilation into the dominant community.
The right to participation for minorities includes three main elements:
- Participation in decision-making on issues that affect the minority
This principle is especially important. Minorities should be involved at all stages of the decision-making process and at all levels – local, regional, and national.
- Participation in all aspects of public life
It is essential for minorities to be able to contribute to the wider society and effectively participate in decision-making processes as members of the majority do, for example, through standing for elections.
- Participation in economic progress and the benefits of development
Minorities must benefit from wealth they generate, for example when they live in areas with valuable natural resources. Also, minorities should benefit from the proceeds of wider development agendas.
The next section seeks to expose commonly held misconceptions about minority rights. The first is that minority rights are divisive; the second is that they lead to breakup of the state; the third is that they are privileges for groups; the fourth is that taking action to support minorities discriminates against the majority.
As noted above, this blog post is just an outline; the course itself is more in-depth. The following links are suggested further reading for this section:
- UNDP, “Marginalised minorities in development programming,” pages 7–14
- MRG World Directory of Minorities (organized by country)
In a recent lawsuit, current Yale professor and former Mexican president Ernesto Zedillo has been accused of committing war crimes and crimes against humanity during his presidential tenure. But the U.S. State Department is arguing that Zedillo is immune from the suit, since his actions in connection with the 1997 Acteal massacre of 45 indigenous villagers were taken as part of his official duties as head of state.
Zedillo’s lawyer, Jonathan Freiman, motioned to dismiss the $50 million suit in January, citing the same reasoning. According to the Yale Daily News, “Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.”
Though such cases are rare, it is common practice for the State Department to provide immunity recommendations to U.S. courts for cases concerning foreign heads of state. While State Department legal adviser Harold Koh wrote that the agency’s position took into account “the overall impact of [the case] on the foreign policy of the United States,” Curtis Bradley, a professor at Duke University School of Law, said it was primarily grounded in principles of international law. He said a federal court would have considered similar principles, and would likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.
This is an interesting case for those concerned with prevention of mass atrocities, as it raises the question, At what point does immunity become impunity?
Also in the news this week, the United States is refusing to extradite Bolivian ex-president Gonzalo Sánchez de Lozada to face charges of genocide and crimes against humanity. In October 2003, then-president Sánchez de Lozada ordered security forces to suppress popular protests against economic inequality. Sixty-seven men, women, and children were killed, and 400 injured, almost all of them poor and from the nation’s indigenous Aymara communities. Sánchez de Lozada fled to the United States, and has been living here ever since.
Writes Glenn Greenwald in The Guardian:
Bolivia then demanded his extradition from the US for him to stand trial. That demand, ironically, was made pursuant to an extradition treaty signed by Sánchez de Lozada himself with the US. Civil lawsuits have also been filed against him in the US on behalf of the surviving victims.
In the civil case against him, a U.S. appellate court ultimately ruled that Sánchez de Lozada was immune from damages or civil lawsuits, overturning a lower court ruling that there were sufficient allegations of genocide and war crimes against him to allow the suit to proceed.
The topic of immunity for heads of state, both sitting and former, is more widely debated than ever. As it should be. The question of how genocide, war crimes, and crimes against humanity can be legitimately seen as part of a head of a state’s “official duties” is one that must be answered.