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March 28, 2022
Posted by Gerald L. Neuman
It appears that on April 1, Harvard Law School will be hosting a lecture by Peter Berkowitz, formerly the Executive Secretary of the Trump Administration’s “Commission on Unalienable Rights” (CUR), whose appalling Report has been repudiated by the Biden Administration. The lecture, entitled “Reflections on the Commission on Unalienable Rights,” is presumably part of the ongoing efforts to keep alive the CUR’s misguided project of reorienting and reducing international human rights law, like his presentation at a November 2021 conference at Notre Dame.
While the CUR Report was evidently a compromise document, its overall message was dismissive and hostile toward the current systems of international human rights law. Secretary of State Mike Pompeo had convened the commission in order to weaken respect for human rights law, and cut it back to eighteenth-century principles. The Report favored letting each country give treaty provisions the meaning that it prefers consistent with its own traditions.
The project was not only inward-focused. Pompeo’s State Department had the Report translated into the other five UN official languages (Arabic, Chinese, French, Russian and Spanish) and also into Farsi and German. It actively promoted the report at the United Nations and in other countries, thereby encouraging autocrats and right-wing populists abroad to follow its example. Just what the world needs at the present historical moment.
Harvard’s association with the CUR, which was chaired by a faculty member, is regrettable but the University has also been active in critique. For a fuller set of “reflections” on the CUR Report, I can recommend the panel held by the Human Rights Program in September 2020, or this article by one of the participants.
June 11, 2021
Posted by Jessica Olney and Shabbir Ahmad
Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first posted to Just Security on June 10, 2021).
This installment reflects conversations with Rohingya residents of refugee camps in Bangladesh about the coup in Myanmar. Camp residents’ views were collected by Shabbir Ahmad and other members of a team of Rohingya researchers during a recent community feedback collection project. The opinions expressed here are the views of the authors and camp residents, not those of any institution with which the authors are affiliated.
The Rohingya community of Myanmar has been isolated and persecuted for decades, leading to waves of mass displacement, isolation, and resistance. The situation of the Rohingya deteriorated further into crisis after the National League for Democracy (NLD) took power in 2015, starting with a 2016 crackdown and culminating in the massive 2017 violence that displaced over 700,000 people.
Refugees in Bangladesh believe the situation could worsen even further under the current junta, creating new risks for the Rohingya who remain in Myanmar and indefinitely delaying any prospect of a safe repatriation for those displaced. According to one camp resident: “The democratic government didn’t do well for us Rohingya. However, the current conditions will be even worse for us, and maybe for everyone in Myanmar.” According to another, “We Rohingya people don’t expect anything positive to come from the military coup. We know very well that the Myanmar Army is merciless and doesn’t feel afraid of committing injustice.” The greatest fear for many camp residents is that repatriation at a large scale will be impossible as long as Myanmar remains under the control of the Myanmar military, the Tatmadaw. In recent comments, junta leader Min Aung Hlaing affirmed these concerns, reiterating once again that the Tatmadaw does not recognize the identity of the Rohingya people or their right to return home. As long as the junta remains in place, there is little possibility of forging solutions to the outstanding political, legal, and justice questions surrounding the Rohingya crisis.
But there is another dimension of the coup in which an unanticipated, positive change has emerged: There has been a wave of social and political reconciliation between Rohingya and other Myanmar people. Though the situation remains formidable both for Rohingya in Myanmar and for those who seek to return from Bangladesh, certain social and political fault lines that have been present throughout Myanmar’s recent history seem to be shifting.Continue Reading…
June 9, 2021
Grounded in an April 2020 symposium hosted by the Human Rights Program at Harvard Law School, the latest issue of the Harvard Human Rights Journal focuses on indirect discrimination on the basis of religion. HHRJ’s Volume 34, Issue 2 (Summer 2021) invited scholars who attended the private workshop to explore the concept in more detail, exploring issues in a comparative and international manner. The April event was hosted by Gerald Neuman, HRP Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, who also contributed an essay to the journal on the “normative background to prohibitions on indirect discrimination” and “the current state of indirect discrimination law domestically and internationally.”
Other essays in the series explore the nuances between indirect discrimination and reasonable accommodation, the inclusion of religion in public education to promote tolerance, and the difference between the right to freedom of religion and the right against religious discrimination. Expert contributors included Tarun Khaitan, Professor of Public Law and Legal Theory at Wadham College, Oxford University; Rashad Ibadov, Assistant Professor of Law at the School of Public and International Affairs, ADA University, and a former HRP Visiting Fellow; and Sarah Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School; among others.
Two commentaries round out the issue. Victor Madrigal-Borloz, Eleanor Roosevelt Senior Visiting Researcher and Independent Expert on Sexual Orientation and Gender Identity, spoke to how the theory of indirect discrimination might be applied to the lived realities of lesbian, gay, bisexual, trans, and other gender diverse (LGBT) persons; and Yuval Shany, Hersch Lauterpacht Chair in Public International Law at Hebrew University, wrote about the choices made by national and international human rights bodies in employing guarantees of religious freedom and prohibitions of indirect discrimination as alternative bases of protection.
For the last two years, HRP has hosted three private workshops focused on indirect discrimination and other factors. Most recently, workshops explored indirect discrimination on the basis of sexual orientation or gender identity (SOGI) and indirect discrimination arising from the pandemic, with a discrete focus on SOGI.
June 3, 2021
Posted by Dana Walters
In Panama, Peru, and Colombia, gender-based quarantine schedules created a culture of fear and risk for transgender individuals. With men allowed out of the house on certain days of the week and women others, gender-diverse persons faced an increased threat of persecution and discrimination by the state and the public. Human Rights Watch and the Inter-American Commission on Human Rights were but some of the groups to note alarm. Just a few months after they were enacted, many of these laws were wiped from the books.
These gendered pandemic measures were an example of the practices and laws up for discussion at a February workshop hosted by the Human Rights Program (HRP) at Harvard Law School. The event, which focused on indirect discrimination resulting from the pandemic, with a particular emphasis on sexual orientation and gender identity, was one in a series of indirect discrimination workshops HRP has convened in the last year. In spring 2020, HRP hosted a virtual convening exploring indirect discrimination on the basis of religion with several former and current members of the UN Human Rights Committee. During the 2020-2021 academic year, HRP hosted two additional workshops drawing on other categories of indirect discrimination. Convened with Columbia Law School’s Human Rights Institute, the October 2020 workshop addressed indirect discrimination on the basis of sexual orientation and gender identity, laying the foundation for February’s discussion on the pandemic.
“One way to think about the purpose of indirect discrimination norms,” said one expert at the October convening, “is that they compel government, or other actors subject to the norms, to actively think about or know about the lives of people who are not like themselves.”
Indirect discrimination is a term that encompasses rules or laws whose intent may not be to discriminate against one group “on the face of it” but has the effect of doing so. In the workplace, for instance, a policy that requires employees to work on Saturdays may have severe effects for those of the Jewish faith, who observe Saturday as a holy day of rest. Indirect discrimination affects a range of protected groups on the basis of race, religion, and other factors.Continue Reading…
May 28, 2021
Posted by Ambassador Kelley Currie
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first posted to Just Security on May 27, 2021).
When Myanmar’s ambassador to the United Nations Kyaw Moe Tun took the floor of the General Assembly on Feb. 26 to condemn the weeks-old military coup and announce his loyalty to the elected government, he not only shocked all those tuning in who expected a pro forma defense of the Tatmadaw’s power grab and denunciation of U.N. interference. He also provided Myanmar’s democratic movement a potentially powerful new tool, both to help secure their legitimacy, and to shift the historic dynamics of U.N. failure in Myanmar. To make the most of this tool, the nascent National Unity Government (NUG) must quickly learn how to work with the U.N. system and leverage it for its intrinsic utility as well as to build out their footprint internationally. To date, the results have been mixed, but there are signs that the NUG is learning. Whether these efforts ultimately will be effective also depends on whether the U.N. system can learn from its own failures in Myanmar and make the necessary course corrections at this pivotal moment.
The U.N.’s history with Myanmar has been a multi-decade case study in the moral hazards that international organizations face when dealing with regimes that do not care about either the welfare of their own people or the opinions of outsiders. After being one of the first of the newly independent post-colonial countries to join the U.N., Myanmar enthusiastically participated in U.N. activities during the parliamentary democracy period. It even requested the U.N.’s help in dealing with spillover from the Chinese civil war, when both Kuomintang (KMT) and Communist troops breached Myanmar’s border.
After Ne Win’s 1962 coup, however, successive military regimes rigorously limited their engagement with international organizations out of an almost fanatical devotion to neutrality. Like other autarkic dictatorships, the Ne Win regime deeply distrusted the U.N. and particularly eschewed involvement with its field-based activities, even though his countryman U Thant served as U.N. Secretary General during much of the first decade of Burmese Socialist Program Party (BSPP) rule. It was not just the U.N. that drew Ne Win’s suspicions: nearly all foreign organizations were kicked out of Myanmar during the 1960s and diplomats based in the country were heavily restricted. The BSPP’s fetishization of neutrality was such that Ne Win withdrew Myanmar from the Non-aligned Movement in 1978 because he was concerned it had become too partisan toward the Soviet Union. Given the role of Southeast Asia as a major theater of Cold War contestation, and China’s mercurial role in these geostrategic games, one can hardly blame Myanmar for wanting to remain aloof from it all. But Ne Win’s autarky also ensured that Myanmar essentially was suspended in amber for more than a decade.
Faced with a ruinous economic situation, however, the post 1974-BSPP and its successors in the State Law and Order Restoration Council (SLORC), while no less xenophobic, recognized that the U.N.’s rapidly expanding aid agencies could be useful as they attempted to address the country’s disastrous economic situation. The Tatmadaw generals seemed to innately grasp that these various humanitarian and development agencies cared more about their agency’s particular development and humanitarian mission set than about the quality of Myanmar’s governance and these agencies were competing for “clients” in the developing world. Having been locked out of Myanmar at the height of the BSPP’s autarky, these agencies were desperate to experiment on its broken economy and what they viewed as a tabula rasa society ripe for their modernization efforts. This gave the BSPP the ability to arbitrage aid agencies’ ambitions and silos, strictly limiting their staffing and physical access and insisting on a high degree of control over their activities in the country. Even after Ne Win resigned as BSPP chairman in 1988, the SLORC and SPDC continued to use humanitarian access as a bargaining chip to ensure that agency operations were compliant. In the most striking—but far from the only– example of its extreme suspicion toward the U.N., the Burmese regime initially rejected U.N.-led humanitarian assistance in the wake of 2008’s devastating Cyclone Nargis, which killed tens of thousands of people, wiped out the critical Irrawaddy Delta rice production zone, and left millions homeless.Continue Reading…
May 21, 2021
Posted by Carmen Cheung
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 20, 2021).
If the current crisis in Myanmar is one “born of impunity”, any response that is rooted in accountability needs to acknowledge that the Myanmar military’s crimes span decades and across its ethnic regions. Some in the international community may have first learned about “clearance operations” in the context of the devastating attacks in recent years that have destroyed Rohingya villages and forced an exodus into neighboring Bangladesh. For almost sixty years, however, Myanmar’s military has engaged in forced displacement, sexual violence, torture, and extrajudicial killings against civilian populations as part of its ongoing conflict against armed groups in the country’s ethnic regions. A proper accounting in Myanmar must be inclusive of crimes committed against all its people, and inclusive of all the communities who have suffered at the hands of its military.
Decades of Impunity: A Brief History
For close to six decades, Myanmar has suffered from a crisis of impunity, one which the international community has never adequately addressed. Almost immediately after its independence from British colonial rule in 1948, civil war broke out between the Tatmadaw (the Myanmar military) and armed organizations in the country’s ethnic nationality areas. The Tatmadaw overthrew civilian rule in 1962 and cracked down on all threats to its power, from journalists and political dissidents to the armed groups in the ethnic areas. Throughout the period of military rule (1962-2011), serious human rights violations such as extrajudicial killings, torture, arbitrary detention, sexual violence, and forced labor were commonplace.Continue Reading…
May 19, 2021
Posted by Grant Shubin and Akila Radhakrishnan
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 18, 2021).
In his first speech since illegally attempting a coup d’etat, Commander-in-Chief Min Aung Hlaing told the people of Myanmar that, “no one is above the law.” He went on, “no one or no organization is above the national interest in state-building and nation-building.” But in reality, Min Aung Hlaing and indeed all of the military (Tatmadaw) are very much above the law in Myanmar.
Of the coup’s many potential causes, perhaps the most overt is that military leadership thought they could get away with it. The military’s constitutional insulation from civilian oversight and control, the failure thus far to hold them accountable for human rights abuses and international crimes, and even periodic cheerleading from the international community for a “democratic transition” emboldened the military into thinking that subverting the will of the people could be done without major consequence. To quote the Office of the High Commissioner of Human Rights, “This crisis was born of impunity.”
After all, the military has been getting away with genocide, war crimes, and crimes against humanity, so why not a coup?
In the aftermath of Feb. 1, a great many novel and knotted international legal questions have arisen. Chief among them is a question about the status of the constitutional order in Myanmar: the military has strained to claim that it is upholding the 2008 Constitution, while the Committee Representing the Pyidaungsu Hluttaw (CRPH)/National Unity Government (NUG) have abolished the 2008 Constitution and issued a new Federal Democratic Charter that envisions a different system entirely. Rather than getting into the merits of these claims, this piece looks at the related – and in many ways inseparable – issue of how military impunity is an essential part of the narrative of the ongoing crisis and how accountability must be part of the solution moving forward. In doing so we analyze the major areas of concern in Myanmar’s 2008 Constitution, the lack of concerted international action to address the military’s grave crimes, how those collective failings created an environment of impunity that paved the way for the coup, and why this path must be avoided going forward.Continue Reading…
May 17, 2021
Posted by Vanessa Chong and Tanyalak Thongyoojaroen
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 14, 2021).
The Association of Southeast Asian Nations (ASEAN) has long failed to meet its aspirations of supporting the rule of law and human rights, instead emphasizing to a fault the principle of non-interference in the “internal affairs” of its members – even when these internal affairs entail mass atrocity crimes. Most recently, this ambivalence has manifested in a lack of concrete actions in response to the coup in Myanmar. This ineffectual reaction underscores what has long been clear: ASEAN must change its approach to the “internal affairs” of its members and recognize that regional stability depends on respect for democracy, human rights, and rule of law within each member.
ASEAN’s Response to the Myanmar Coup
When the Myanmar military attempted to seize all levers of power on Feb. 1 and detained State Counsellor Aung San Suu Kyi, President Win Myint, and scores of others, the Deputy Prime Minister of Thailand, Prawit Wongsuwan, promptly dismissed news of the coup d’état. “It’s their internal affair,” he said. At the height of the junta’s attack on unarmed civilians, on March 27, three members of the Association of Southeast Asian Nations (ASEAN) – Thailand, Viet Nam, and Laos – sent representatives to a military parade in Naypyidaw, the capital of Myanmar, hosted by coup-leader Min Aung Hlaing. On the same day, strong evidence indicates that Min Aung Hlaing’s forces killed more than 100 women, men, and children in a matter of hours.
When ASEAN foreign ministers met in an “informal” meeting on March 2, the first involving the bloc since the power grab, the ministers failed to muster a collective condemnation of the coup, let alone address the systematic killings underway. On April 24, ASEAN held a special summit on Myanmar, inviting Min Aung Hlaing but not representatives of the elected civilian government he overthrew. Without input from such elected officials, the ASEAN leaders reaffirmed the bloc’s commitments “to the purposes and principles enshrined in the ASEAN Charter, including adherence to the rule of law, good governance, the principles of democracy and constitutional government, respect for fundamental freedoms, and the promotion and protection of human rights.” As he stepped out of the meeting, Malaysian Prime Minister Muhyiddin Yassin celebrated the outcomes of the convening by hastily declaring “We have succeeded.” As the leaders met that day and spoke of rule of law, at least 3 people were killed in Myanmar.
The April 24 meeting resulted in ASEAN’s “Five Points of Consensus,” an agreement on five issues to facilitate a peaceful solution for Myanmar’s current crisis. However, there are clear warning signs that the group will fall short of its commitments. ASEAN not only failed again to condemn the coup or call on Min Aung Hlaing to immediately return power to the elected government, it failed to specifically condemn past attacks on civilians and once again evaded holding Min Aung Hlaing accountable for these attacks.
These clumsy, callous approaches are nothing new. They are sadly consistent with traditions of “the ASEAN way” – a euphemism for a style of regional cooperation that puts national sovereignty first and that emphasizes “non-interference” in the “internal affairs” of other states. But to ensure continued stability in the region, it is clear the old ASEAN way must change.Continue Reading…
May 7, 2021
Posted by Taylor Landis
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School).
Disclaimer: Taylor Landis is an independent human rights expert who worked in Myanmar from 2013 to 2020. She is serving as the author of this piece on behalf of an individual in northern Burma who wished to contribute to this series but cannot be identified due to the serious security threats she currently faces. The opinions expressed here are solely those of the unnamed individual in northern Burma and do not reflect those of any institution with which Taylor is affiliated.
Over encrypted video chat, a long-time civil society leader from one of northern Myanmar’s many remote conflict-affected communities reflects on life in the midst of the country’s latest crisis. “We are lucky to be from here,” she explains, referring to her small town situated in a valley among what would be picturesque mountains. She explains that each of the five closest peaks is occupied by a different armed entity: four ethnic armed organizations (EAOs) control one apiece and the fifth is the territory of the Myanmar military (or Tatmadaw). The forested hillsides are contaminated with landmines, and the roads cutting through the valley are punctuated by EAO and Tatmadaw checkpoints where heavily armed soldiers closely control all movement. With this layout, travel in and out of town was dangerous and daunting before the military’s Feb. 1 grab for power. Now, with new checkpoints in place, it’s even more difficult. EAOs in this area have been in conflict with the Tatmadaw for decades, some since the country’s 1948 independence. In recent years, escalating armed violence between and among the EAOs has eclipsed their battles with the Tatmadaw. Over this civil society leader’s lifetime, ceasefires, alliances, and new armed entities have come and gone, but active fighting has never been far off. “We really are lucky,” she continues, “we grew up hearing gunfire. Now we are more resilient.”
When the Tatmadaw rolled tanks and troops into cities following the Feb. 1 coup, the woman’s community nervously followed the news, just like others all across Myanmar. The massive urban protests taking place throughout the country remained peaceful for weeks. Then the Tatmadaw began its crackdown. Having seen more than 700 people killed and over 3,000 detained by security forces across Myanmar by the end of April, her colleagues in Yangon have been shocked by the level of Tatmadaw violence they witness everyday. Like most people in Yangon, Myanmar’s biggest city, her colleagues had never seen the Tatmadaw in action before February 2021.
“For them, the first time they saw a Tatmadaw sniper target a woman who was only buying snacks in the street, and they saw her shot in the head even though she was not even participating in the peaceful protest, they were shocked.” She pauses for a moment and goes on, “For us, in the conflict areas, we have seen the Tatmadaw’s human rights abuses. We know they shoot to kill. We are not shocked. We are sad, but we are not shocked.”
In ethnic-minority communities like hers, first-hand experience with Tatmadaw cruelty was common [and well documented] before the crisis brought on by the 2021 coup. Having borne the brunt of Tatmadaw violence, many in ethnic-minority communities had long looked for protection from and been supportive of EAOs, considering them a protective barrier standing between their communities and Tatmadaw violence. Not everyone, however, shared this view. Having tired of the ever-evolving, ever-present armed violence in their areas, some had little patience for any entity taking part. In her community, the civil society leader says people’s views of EAOs varied widely, but no one supported the Tatmadaw.Continue Reading…
May 4, 2021
Posted by Jacqulyn Kantack, Human Rights Watch
Incendiary weapons inflict excruciating physical and psychological injuries on civilians in conflict zones, and those who survive endure a lifetime of suffering. While Protocol III to the Convention on Conventional Weapons (CCW) regulates the use of incendiary weapons, loopholes in the protocol have limited its effectiveness.
“The Human Cost of Incendiary Weapons and Shortcomings of International Law,” a recent online event organized by Human Rights Watch and Harvard Law School’s International Human Rights Clinic (IHRC), brought together an incendiary weapon survivor, a military trauma nurse, a burn rehabilitation doctor, and a disarmament lawyer, who collectively highlighted the problems of these cruel weapons. Drawing on their first-hand experiences and professional expertise, the speakers vividly detailed the humanitarian consequences of incendiary weapons and called on states to strengthen international law regulating their use.
Two of the panelists had personally witnessed the horrors of incendiary weapons. “Abu Taim” (pseudonym) was a teacher at a school in Urum al-Kubra, Syria, that was attacked with incendiary weapons in 2013. In pre-recorded video testimony, he recalled exiting the school right after the strike: “I saw bodies, and those bodies were only black. . . . I came closer to their bodies to know, who are those people? Who are those students? I didn’t recognize their faces.”Continue Reading…
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