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The good, bad and ugly in Myanmar

Asia Times - November 8, 2011

Benjamin Zawacki, Bangkok On November 7, 2010, on the occasion of Myanmar's first elections in 20 years, Amnesty International commented that the polls which had "presented an opportunity for Myanmar to make meaningful human rights changes on its own terms" were instead "being held against a backdrop of political repression and systematic violence." A year on, what is the state of play?

Reading the commentary of the past several months much of it in this newspaper is of limited help. That optimists and pessimists have emerged would normally be productive, except that these camps are more and more categorically opposed to one another. With few exceptions, Myanmar watchers of all stripes have increasingly dug their heels firmly into doctrinaire territory, unwilling to concede even the most basic (and often simply factual) points to the other side.

This has not only left the Myanmar debate in a polarized state, but more importantly has hindered the sort of clear, objective assessment on which the right human rights and other policy decisions depend. To a certain degree, this confusion is understandable since for years (if not decades) there was little room for nuanced thinking on Myanmar.

"To sanction or not to sanction" was one of the few points of contention, itself located within a broad consensus certainly in the West and among much of Asia and the global South as well that Myanmar was a (choose your adjective: political, economic, humanitarian, public health, educational, human rights...) disaster on a bleak trajectory.

Since the elections last year, however, that trajectory has changed direction, such that it is no longer possible to interchange the litany of adjectives or speak of Myanmar as many commentators still do as a black-or-white situation. Nor is it advisable to do so. The human rights situation in Myanmar must be disaggregated, and addressed on that basis.

The qualified good

There is political and economic change underway in Myanmar, much of which could be to the improvement of people's civil and political, as well as economic, social and cultural rights. Those who deny this are simply not paying attention or are allowing their personal, political or institutional agendas to get in the way.

Aside from releasing pro-democracy icon Aung San Suu Kyi from house arrest a week after the elections and a late April 2011 inaugural speech by President Thein Sein that promised increased political participation, for six months Myanmar's new government enacted few positive changes.

Since July however, a steady stream of new moves and policies has become apparent, albeit of greatly varying significance to the human rights situation. Other than the appointment of a National Human Rights Commission (discussed below), a guardedly positive development but whose focus is largely uncertain, almost all have been confined to the political and economic spheres and centers.

Myanmar's Labor Minister Aung Gyi has met four times with Suu Kyi, and Thein Sein has met her once in talks she described in contrast to those with Aung Gyi four years ago as a "positive development." She has twice been permitted to travel outside of Yangon, and unlike in May 2003 when government-backed thugs attacked her motorcade in Depayin and killed or injured over 100 of her supporters, her trips this year occurred without incident.

And contrary to declaring her National League for Democracy (NLD) political party illegal after it refused to register under new electoral laws in 2010, the government has invited it to reregister under amended provisions of those laws. These events show a small improvement in the freedoms of expression and association, particularly as they involve a former prisoner of conscience whose house arrest was illegally extended just months before last year's elections.

More significant, if still tentative, steps toward increased freedom of expression have come in relation to Myanmar's once robust media industry. In October, Radio Free Asia cited Tint Swe, director of the Press Scrutiny and Registration Division, as saying that censorship is inconsistent with democratic values and more political content has been allowed in recent months.

Again, enter Suu Kyi: previously strictly prohibited in the domestic media, her name and picture have been allowed to appear and for the first time in 23 years the authorities permitted her in September to publish her own piece in the Pyithu Khit News Journal. Internet restrictions have also been substantially reduced; the websites of both international outlets and those run by Myanmar exiles almost uniformly critical of the government are no longer blocked. The authorities recently signaled a lifting of a six-year ban on satellite television receivers as well.

While these changes improve freedom of expression in Myanmar in relation to both the transmission/dissemination and reception of information and mark a relaxation of draconian restrictions during (when the Internet was severed altogether) and after 2007's "Saffron" revolution, they are not supported by changes to the relevant laws.

Nor are they unqualified in practice. Not only did the authorities cut all political content from an exclusive interview of Suu Kyi by the Messenger News in September, but more seriously, on the day after UN Special Rapporteur on the situation of human rights in Myanmar visited the country in August, former military officer Nay Myo Zin was sentenced to 10 years in prison for allegedly sending abroad a political document on how to achieve democracy.

One month later, Sithu Zeya, a young reporter with the exile-run Democratic Voice of Burma, already serving an eight-year prison term, had his sentence extended by a decade under the 2004 Electronic Transactions Law. Extensive legal reform in relation to not only the media but to freedom of expression generally is long overdue in Myanmar, and the persecution via prosecution of journalists should stop immediately.

Closely related to freedom of expression are the freedoms of peaceful assembly and association, which in passing the Labor Organization Bill last month Myanmar took a substantial step toward promoting and protecting. The law allows workers to form trade unions effectively banned previously under the 1962 Trade Unions Act and to legally go on strike. The important matter of whether the unions will be independent of the government, however, remains to be seen.

In the same speech in which he promised increased political participation, President Thein Sein also pledged to fight poverty in Myanmar. This was a welcome message considering the government's initially obstructive response to Cyclone Nargis in 2008. Recent months have seen a mixed record in Myanmar, still weak on the humanitarian side, somewhat stronger but still with much room for improvement on development.

Currently, the humanitarian situation in Myanmar is especially grave in several ethnic minority states where armed conflict is taking place, as well as in Rakhine and Chin States where food insecurity is severe. Despite slow movement in the right direction, however, the government has kept in place lengthy and complex administrative procedures for obtaining travel permits both for those who already have a presence and for new humanitarian agencies seeking permission to work in the country.

In conflict areas, authorities have in some cases simply blocked any and all access to the tens of thousands of persons internally displaced by the fighting, especially those in camps on the Myanmar-China border. These practices should cease immediately.

At the same time, the international donor community needs to respond to the "humanitarian imperative" in Myanmar, especially by addressing people's lack of access to minimum essential levels of economic, social and cultural rights. In particular, this requires them to meet pledges made for relief and/or recovery after Cyclones Nargis (May 2008) and Giri (October 2010) so long as they are satisfied that distribution of humanitarian aid is provided transparently, is for the purposes agreed upon, and is based solely on need.

Organizations and local communities have also highlighted the need for a stronger international response to the humanitarian disaster in the latest conflict areas (near the Myanmar-China border). The rights of people whose lives have been devastated by these events should not be held hostage to politics by either Myanmar's new government or the international community.

Myanmar's development situation is slightly better but more complicated. Five years after the Global Fund to Fight AIDS, tuberculosis and malaria decided to leave Myanmar, partly on account of reported government interference, the new administration signed an agreement in November 2010 welcoming it back. This move, most positive in itself, should have the additional effect of allowing the Three Diseases Fund, which had filled the gap left by Global Fund, to focus more on other critical health care issues such as maternal and child health.

In July, the Myanmar government also raised substantially state pensions for nearly a million people, most of them poor, and announced plans to provide micro-credit for poor farmers. Last week it finished hosting a visit by the International Monetary Fund (IMF) to discuss unifying its foreign exchange rate policy and lifting certain currency restrictions, something which could also be to the economic benefit of its cash-strapped citizens, and agreed to increase its assistance to migrants working in Thailand.

These initiatives should be acknowledged by the international community. At the same time, there are reasons for continuing concerns such that increasing international assistance and cooperation and lifting the restrictions under which multilateral agencies (such the IMF, World Bank, Asian Development Bank, and the UN Development Program) continue to work in Myanmar should be matched by the government making additional moves of its own.

It should reallocate more resources to the social, educational, and public health sectors, which currently combined receives only about 5% of gross domestic product (GDP).

Myanmar should also utilize the estimated $5 billion in foreign reserves it has accumulated over the years, mostly from the sale of natural resources, toward advancing the economic, social, and cultural rights of its people. Last month on a bilateral basis Japan at least partly demonstrated this attention to Myanmar's domestic policies by citing unspecified "progress" in Myanmar in its reported decision to resume official development assistance there, which it had suspended after the Saffron Revolution in 2007.

Pessimists take note: politically and economically there are limited but real human rights changes taking place in Myanmar. While the government must do a great deal more, nothing in the way last year's elections were orchestrated suggested this would be the case a year on.

The categorically bad

Unfortunately, what many optimists disregard is that these changes are confined to Myanmar's political and economic centers. There is another story in Myanmar concerning a substantial portion of the civilian population that has been ignored, sidelined or outright dismissed by many since the story of the "qualified good" broke: serious human rights and humanitarian law violations in several ethnic minority areas.

The irony is that the event most often referenced in relation to the recent political and economic reforms last year's parliamentary elections is the same event that marked the start of this "categorically bad" development.

On the very day of the polls, ethnic minority Karen elements launched an attack on the Myanmar army in the border town of Myawaddy. March and June this year marked respectively an intensification of conflict with various ethnic minority armed groups in Shan State and the breaking of a 15-year ceasefire with the Kachin Independence Army (KIA) in Kachin State. Smaller conflicts continued or resumed as well in Kayan (Karenni) and Mon States.

While the civilian population almost always suffers in conflict zones, the critical difference in this fighting for both the Myanmar government and the international community is that civilians have been a target set of the Myanmar army. From Kayin (Karen) State (and bordering parts of Bago and Tanintharyi Regions), there are recent and credible accounts of the army using prison convicts as porters, forcing them to act as human shields and mine-sweepers.

In Kachin State, sources report extrajudicial executions, children killed by shelling and other indiscriminate attacks, forced labor, and illegal confiscation of food and property. And last week Amnesty International spoke with ethnic Shan civilians who recounted stories of torture, arbitrary detention and forced relocation.

As a result, there are roughly 30,000 "new" internally displaced persons in Shan State and a similar number in or near Kachin State (including a small number of refugees), in addition to approximately 36,000 internally displaced persons in Kayin State. In October, the Thailand-Burma Border Consortium reported that in the past year alone 112,000 persons were forced from their homes in Myanmar (to say nothing of the more than 150,000 Burmese refugees in Thailand and those in other neighboring countries).

Nor are these ongoing human rights violations just recent or unprecedented. They recall the findings of an Amnesty International report published nearly three and a half years ago: extrajudicial executions, torture, arbitrary detention, forced labor, confiscation of land and food, and forced displacement of Karen civilians on a large scale, starting in late 2005.

Moreover, as that report's title indicated, some of the violations amount to crimes against humanity in eastern Myanmar and elsewhere in the country, as well as to war crimes. They are widespread and systematic, and they are pursuant to known attacks targeting ethnic minority civilian populations.

It is the ethnic minority situation where the gap between Thein Sein's words, in both his inaugural speech and with his meeting with Suu Kyi, and his actions is most apparent. Indeed, human rights violations are not confined to the conflict zones either, as reports of forced labor on a large scale in Chin and Rakhine States (usually targeting the Rohingya ethnic minority in the latter) indicate. Either a contentious policy division between the civilian government and the army has emerged, or no proper division between the two has in fact been established.

The exception proving the rule is the president's decision in September to suspend construction of the controversial Myitsone Dam in Kachin State. The project was fueling not only intensified hostilities but the forced displacement of Kachin civilians as well. Although the authorities have shelved their plan to have all ethnic minority armed groups become official Border Guard Forces, stated that refugees and exiles may return home, and engaged in talks with certain groups, these moves have not been accompanied by a cessation of the grave violations noted above.

This and the fact that no one has been held accountable for them is not acceptable. Yet beyond calling on the Myanmar government to immediately halt the violations, there is disagreement among observers as to what else, if anything, should be done. Since May 2010, Amnesty International has called on the United Nations to establish an international commission of inquiry into grave crimes in Myanmar as a means toward determining the facts, pressuring the army to cease targeting civilians and holding perpetrators accountable.

First and foremost, this commission (not a court) would inquire and investigate (not prosecute individuals) as to what has taken place in Myanmar's ethnic minority areas. It would be objective and impartial, looking at the policies and actions of all sides. Second, in carrying out its work, the commission might well convince the combatants to stop attacking and otherwise persecuting civilians, and deter them from doing so in the future. Finally, once the facts were established they could be employed in any number of ways including but not limited to legal prosecutions toward holding perpetrators of international crimes to account.

While Suu Kyi has herself clearly expressed her support for this initiative, arguments abound as to why it should not move forward. Most relate to its political viability, both inside and outside Myanmar, and its strategic advisability. None withstands scrutiny.

It is not a foregone conclusion (though risks becoming one should the international community abandon or give up on the idea) that a UN Commission of Inquiry would not have access to Myanmar. Even if it was denied, however, a similar 1997 commission by the International Labor Organization compensated for lack of access partly through the testimony of forced labor victims outside Myanmar and various experts, among them Amnesty International. Two years later, Myanmar passed a law prohibiting forced labor.

Indeed, a consistent argument for opposing a commission of inquiry is that it would not have "buy-in" from the Myanmar authorities. This view is supported by Article 445 of Myanmar's Constitution (as well as by decades of impunity) which codifies immunity from prosecution for officials for past human rights violations.

One caveat to this argument is the formation in September of a National Human Rights Commission. Some opponents of an international commission of inquiry in Myanmar have suggested that the national commission, which according to its chair is empowered to investigate complaints of human rights violations, might eventually fill the role.

This is most unlikely, however, considering its questionable composition (some members with a public record of denying human rights violations in the country), its doubtful level of independence from the government (appointed by the president), and especially its legal underpinning in the Constitution (Article 445).

Yet the lack of "buy-in" is precisely why an international commission is needed; if the Myanmar government was willing to initiate its own process of fact-finding and accountability (to say nothing of ceasing the ongoing violations), the UN would not have to. It is because of Myanmar's refusal to institute a domestic option, and not in spite of it, that the international community must step in.

"Must" in the case of international crimes is the operative word, because though there are options in how accountability can be established, accountability itself is not optional. Absent Myanmar's domestic "buy-in", it is the responsibility of the international community to ensure justice for the victims of crimes against humanity and war crimes in Myanmar. And an international commission of inquiry is the only option left.

To withhold support by citing political constraints (in the form of votes in the UN Security Council or consensus in the UN General Assembly), is both conveniently self-fulfilling and contradicted by the 16 nations that have thus far publicly signaled their support for such a commission. To claim that it is not the correct political strategy is to overstate the breadth and depth of recent human rights improvements, and to pretend that engagement and pressure are mutually exclusive. Both excuses are an abdication of responsibility to Myanmar's ethnic minorities.

Optimists take note: Any human rights changes in Myanmar's ethnic minority areas since last year's elections have been for the worse. While modest improvements in political and economic rights should be built upon, they should not come at the expense of ongoing international crimes or impunity for their perpetrators.

The plain ugly

In May, the Myanmar government released 77 political prisoners under a one-year reduction of all prison sentences in the country. In September, the first substantive act of the new Myanmar National Human Rights Commission was its publication of an open letter to President Thein Sein in three state newspapers calling on him to release "prisoners of conscience" who do not pose a threat to state or public stability. While 239 political prisoners were set free two days later (pursuant in fact to a parliamentary decision), the release exposed several ugly realities in Myanmar.

The first is that while the Commission's use of the term "prisoners of conscience" is welcome there is debate over how many political prisoners are actually being held in Myanmar. This fact was underscored not only by the mixed reaction both inside and outside Myanmar to the release Amnesty International called it a "minimum first step" but by subsequent contradictory statements by Ko Ko Hlaing, a senior political adviser to the president.

On October 19, he was reported as saying that there were "about 600" remaining prisoners of conscience in Myanmar but in an interview with the Irrawaddy magazine eight days later he conceded that he did not "have exact figures." He also said that differences may "depend on how people define prisoners of conscience and ordinary prisoners."

The government must clarify who they classify as political prisoners and who they don't. As there are significant differences between the government's figures and those put forward by some opposition groups, the authorities should resolve this issue transparently and cooperatively. No political prisoner should be subject to an unjust prison term on account of a dispute over definitions.

 While primary responsibility for resolving this issue rests with Myanmar, the United Nations should assist the Myanmar authorities in convening a panel, including the NLD, to ensure that all political prisoners are identified. Encouragingly, the International Committee of the Red Cross was recently authorized for the first time in years to conduct an international staff-led engineering survey in three of Myanmar's prisons, despite it not involving contact with detainees and so not amounting to a prison visit according to its protection criteria.

The second ugly reality, related to the confusion over political prisoner numbers in the wake of last month's release was an emphasis on "quality" over quantity. The unfortunate (if doubtless unintentional) implication in Suu Kyi's statement that "There still are a number of important political prisoners who need to be released as soon as possible", is that there are unimportant political prisoners.

This is not the case and cannot afford to be accepted as such by the Myanmar authorities. Indeed, the reverse is true: the "who" among the released should not merely be secondary to the "how many", but totally irrelevant to it. All political prisoners should be released as soon as possible.

Note that this point is distinct from being particularly concerned, in the event of an only partial release of political prisoners, with certain groups and individuals: Amnesty International was able to identify only five political prisoners among the 239 released last month as being from ethnic minorities. Many such political prisoners some of whom are members of armed opposition groups may be wrongly classified as common criminals in the country's extensive prison system.

If political prisoners have committed an internationally recognized offence, authorities should give them a prompt, fair and public trial, or release them. Of course, prisoners of conscience, having clearly committed no such offense in their entirely peaceful political expression, should be released immediately and unconditionally. And as evidenced by Amnesty International's dissemination of two Urgent Actions (about Buddhist monk U Gambira and a hunger strike) just last week, both on account of torture or other ill-treatment, conditions for the remaining prisoners have not improved.

This speaks to the final ugly reality in Myanmar, namely that the release of prisoners of conscience in Myanmar is being staggered in a seemingly calculated way by the government. Whether to win similarly staggered concessions from the international community (including a relaxation of economic sanctions), curry domestic favor in stages in the run-up to national by-elections within the next few months, or merely keep at bay both domestic and international criticism, there is no room for a "process" in the release of prisoners of conscience.

Does Amnesty International really expect, as per the proverbial and rhetorical words, that this should literally "happen overnight"? Yes, we do. By their definition, prisoners of conscience should never have been detained in the first place; they should be released every last one of them immediately and unconditionally.

That 316 political prisoners have been released by the post-election Myanmar government marks a modest improvement of the country's human rights record, but until and unless all are freed it will not be improvement enough. In that sense, the situation of political prisoners in Myanmar is a microcosm of the human rights situation there generally one year after the elections. For the sake of further human rights progress in Myanmar a country, not a cause both pessimists and optimists would do well to keep this in mind.

[Benjamin Zawacki is Amnesty International's Myanmar researcher and a member of the US Council on Foreign Relations.]

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