Myanmar: New Government Inherits Problems and Promise of Special Economic Zones

By Vani Sathisan (International Legal Advisor, International Commission of Jurists) and Bobbie Sta. Maria (Senior Researcher for Southeast Asia, Business & Human Rights Resource Centre)

Myanmar Special Economic ZoneWhile SEZs are supposed to be a driver for Myanmar’s economic growth, their impacts on the rights of affected communities indicate that this growth is reserved for businesses and investors.

This is a long form version of this article published by Reuters on 1st April 2016.

More than half a century of military rule ostensibly comes to a close on April 1, when Daw Aung San Suu Kyi’s National League for Democracy (NLD) officially takes over Myanmar’s government and the first civilian President since 1962 starts leading the nation. Despite these extraordinary developments, daunting challenges remain in Asia’s second poorest country. Myanmar’s military still controls key governmental functions; the country is barely emerging from decades of civil conflicts; rule of law and institutions are weak; the economy is fragile and dominated by crony companies; corruption, and human rights abuses remain stubbornly persistent.

The outgoing government initiated a number of significant changes, including efforts to encourage economic development through foreign trade and investment. This strategy included heavily promoting foreign investment through three major special economic zones (SEZ): a Japanese supported zone focused on manufacturing in Thilawa, near Yangon; a Thai supported zone initially focused on heavy industry including petrochemicals in Dawei in the south; and a Chinese supported zone in Kyaukphyu in the northwest, envisioned as a trade corridor connecting the Chinese, Indian and ASEAN economies. These were said to build on Myanmar’s strategic location and low-cost production base for export destinations in the region.

The NLD recently announced that while it supports the zone in Thilawa, it will reconsider the continuation of the Dawei and Kyaukphyu SEZs, study commitments made by the former government to investors, and speak with relevant stakeholders. This is a crucial process and many hope that the NLD does not lose sight of its commitments in its Election Manifesto, including encouraging “foreign investment in line with the highest international standards”, and laying down “paths for economic cooperation that can bring sustainable long-term mutual benefits”. Continue reading

The Yugoslavia Tribunal also Engages in Debt Collection

by William A. Schabas*

ICTYAlongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.

Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.

All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.

It doesn’t have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems. Continue reading

Myanmar: Rule of law depends on reform of Union Attorney General’s Office

By Daniel Aguirre and Vani Sathisan*

Recent political discussion in Myanmar revolves around the formation of a new government and selection of a president, but not enough attention is focused on the position of the attorney general, who holds a critical function in upholding rule of law and respect for human rights.

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

The attorney general is Myanmar’s most powerful legal officer: As a member of the executive, the AG provides legal advice to the President and the hluttaw, analyses international treaties, drafts and amends laws, and represents the government in judicial proceedings. The attorney general also directs the prosecutors’ office and ensures that cabinet actions are legally valid, in line with the constitution and international human rights law.

The International Commission of Jurists (ICJ), international donors and development partners discussed the attorney general’s powerful role on the sidelines of the launch for the Union Attorney General Office’s (UAGO) Strategic Plan 2015-19 in Nay Pyi Taw last week. All expressed hope that the incoming National League for Democracy (NLD) government will appoint an attorney general committed to reform, the rule of law and human rights, in line with their election manifesto promise to ensure that executive and judicial systems support the rule of law. Continue reading

Japan’s Apology to South Korea Shows What Public Apologies Should (Not) Do

by DavildTolbert*

South Korea Comfort WomenJapan’s most recent and controversial apology to the government of South Korea for sexual slavery committed by its military against “comfort women” during WWII has raised important questions about apologies for crimes and serious human rights violations during armed conflict. What is the proper role of an apology for such massive crimes against humanity? What can apologies do and what should they not be meant to do for survivors and victims?

The latest Japanese apology, which some have seen as part of a strategic geopolitical deal struck between Japan and South Korea, has led to protests among the 46 surviving South Korean victims as well as the victims in other countries occupied by Japan during the war.

After working for 15 years on reparations for victims in over 50 countries, ICTJ has found that many victims feel that an apology unaccompanied by other forms of reparation does not constitute justice, even as material reparations, such as compensation, without a meaningful acknowledgement of responsibility also falls short.

An estimated 200,000 women in Asia were forced into sexual slavery by the Japanese Imperial Army just prior to and during World War II. Japan systematically established an extensive network of “comfort stations” throughout its occupied territories, to which “comfort women” were trafficked and used as sexual slaves. Many of these “comfort women” were barely teenagers when they were enslaved and the surviving few are now of very advanced age and dwindling in numbers. Continue reading

Time for a Genuine Commitment to Rule of Law

by Vani Sathisan*

Court HammerThe world observes Human Rights Day on 10 December to mark the momentous strides in international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In Myanmar, recent political changes have been both momentous and transformative. Nonetheless, what was proclaimed by the UDHR as the “equal and inalienable rights of all members of the human family”, continue to be infringed upon by the arbitrary and highly subjective interpretation and application of laws, some of them dating back to British colonial times.

Successive governments in Myanmar have used overly broad or vaguely defined laws to curtail freedom of expression that is protected under international law. They often invoke the justification, typically inappropriately, of protecting national security, or to prevent public disorder or avoid outraging the religious feelings of a class. None of these efforts have served or can serve to address or respond to sectarian and religious violence.

On behalf of the International Commission of Jurists (ICJ), I have observed trials of those arrested and detained on criminal defamation charges for their Facebook posts that allegedly defame either the Tatmadaw or a political leader. One of the laws used to charge the accused is the Penal Code, first drafted in 1860.

The ICJ released a briefing paper last month highlighting how the enforcement of Myanmar’s defamation laws can result in violations of a number of international laws and standards protecting human rights, and also have an overall chilling effect on the freedom of opinion and expression and freedom of assembly in the country. Continue reading

How Africa Can Fix the International Criminal Court

By John Dugard*

ICCThe ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.

Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman – Fatou Bensouda of The Gambia – and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.

Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.

But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading

Why Myanmar Needs to Stop Prosecuting People Over Facebook Posts

By Vani Sathisan*

facebookTo say that Facebook and other internet-based social media networks have revolutionized modern day communication would be an understatement. According to a report by the Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the global number of internet users has reached more than two billion. One million log onto Facebook every month. Twitter claims 500 million users and YouTube is viewed about 4 million times per day. After ideas expressed online have had an instant “viral” spread, revolutions  have unfolded .

And so have the prosecutions.

Judiciaries worldwide have had to struggle with what content is defamatory and what is self-expression.

The US Supreme Court, in Elonis v. United States [2015], considered the case of a defendant who had written, and posted on Facebook, apparently violent rap lyrics, including “I want to kill my wife” while he was undergoing a divorce. The court had to weigh up whether convicting a man of threatening another person requires proof of subjective intent to threaten or whether it would suffice to show that a “reasonable person” would regard the statement as threatening. It ruled in favour of the defendant stating that “negligence is not sufficient to support a conviction.” The defendant’s lawyer argued that his client was exercising his First Amendment rights and that governments may not prohibit the expression of an idea simply because certain factions of society find it offensive. Continue reading

Le Tribunal spécial pour le Liban, cet énergumène judiciaire: Observations d’un expert avisé

Compte-rendu d’entrevue avec Me Philippe Larochelle

par Pascale Langlais*photo_tsl

En 2009, la justice pénale internationale a mis au monde un petit nouveau, une entité judiciaire bien spéciale et unique en son genre : le Tribunal spécial pour le Liban (ci-après « TSL »). Né de la résolution 1757 du Conseil de Sécurité des Nations Unies à la suite des attentats terroristes ayant coûté la vie à l’ancien premier ministre du Liban, Rafiq Hariri, en 2005, le TSL se distingue des autres juridictions internationales à plusieurs égards et semble parfois évoluer en orbite des autres tribunaux phares de la justice internationale. À ce sujet, on doit notamment souligner le fait qu’il s’agit du premier tribunal international pénal à juger de crimes uniquement définis en droit national, à savoir le terrorisme selon le Code pénal libanais (pour plus d’information). Il s’agit également du premier tribunal international pénal à prévoir dans son Statut la possibilité de tenir des procès in absentia, donc en l’absence de l’accusé. Autre innovation, le TSL est aussi le premier tribunal en son genre à se reconnaître une compétence en matière de responsabilité de personnes morales[1].

Malgré toutes ces caractéristiques que certains considèrent comme une avancée du droit international pénal, il n’en demeure pas moins que le TSL essuie son lot de critiques non seulement en ce qui a trait à sa légitimité et à son fonctionnement, mais également en rapport avec la place qu’il occupe dans la sphère de la justice internationale pénale. Ses détracteurs sont nombreux, tant dans la société libanaise que dans la communauté internationale. Parmi ceux-ci, on peut notamment citer Philippe Larochelle, avocat de la défense fort d’une grande expérience devant les tribunaux internationaux. Me Larochelle se montre très dubitatif quant à l’existence de ce tribunal et porte un regard très critique sur la justice internationale pénale de manière générale. Il a d’ailleurs su exposer ses opinons très tranchées sur la question lors d’une conférence présentée à l’Université Laval le 28 mai 2015 dans le cadre de la première édition de l’École d’Été sur la Justice internationale. Il a plus amplement précisé sa pensée lors d’une entrevue accordée à la suite de cette conférence. Continue reading

What South Africa Leaving the International Criminal Court Would Mean

By Milton Nkosi*

International Criminal CourtThe call by South Africa’s governing party to withdraw from the International Criminal Court (ICC) has implications for the rest of the continent. But it is not going to happen any time soon.

When South Africa joined the ICC in 1998 the country had just emerged from the scourge of apartheid.

South Africans were fresh victims of gross human rights violations and had hoped that the rest of the world would join the ICC.

But some of the most powerful countries did not follow.

And now the governing African National Congress (ANC) is calling for the country to leave the ICC – which would make it the first to do so.

‘Hitler of Africa’?

The chairman of the ANC’s commission on international relations, Obed Bapela, said that the ICC had “lost direction”.

Mr Bashir was able to fly out of South Africa in June despite a warrant for his arrest for war crimes

This move away from the ICC comes not long after the South African government was criticised for allowing Sudan’s President Omar al-Bashir to leave the country despite an ICC arrest warrant for alleged war crimes in Darfur. Mr Bashir denies the allegations, saying they are politically motivated.

Mr Bapela insisted South Africans were “very keen” to hear the stories of the victims of Darfur, as they had heard the victims of political crimes committed during the apartheid era at the Truth and Reconciliation Commission.

“Human rights matter to us but we want a fair system,” he said. Continue reading

The Special Jurisdiction for Peace in Colombia and the Cautious Optimism of the Prosecutor of the International Criminal Court

 

by Héctor Olasolo*

International Criminal CourtOn 23 September 2015, the Government of Colombia and the Revolutionary Armed Forces of Colombia – Popular Army (‘FARC-EP’), issued a joint communique, in which they made public the core aspects of their agreement on justice matters (‘the New Agreement’), including, in particular, the establishment of a Special Jurisdiction for Peace. The next day, the Prosecutor of the International Criminal Court (‘ICC’), Ms. Fatou Bensouda, made a preliminary statement thereon, in which she highlighted that “any genuine and practical initiative to end the decades-long armed conflict in Colombia, while paying homage to justice as a critical pillar of sustainable peace, is welcome by her Office”. She also stressed her hope for the New Agreement to comply with this goal, and her cautious optimism as “the agreement excludes the granting of amnesties for war crimes and crimes against humanity, and is designed, among other things, to end impunity for the most serious crimes”.

But, what are the reasons for the ICC Prosecutor’s cautious optimism, if ever since the adoption of Legislative Act 01 of 2012 on the so-called ‘Legal Framework for Peace’ she has expressed, in all her annual reports on Colombia, her concern by the ample powers granted by it to the Colombian Congress?

In my view, this can only be due to the significant difference between the role in an eventual transitional process in Colombia that the New Agreement seems to give to the investigation, prosecution and punishment of genocide, crimes against humanity and war crimes (‘ICC crimes’), and the limited scope of application of criminal justice provided for in the Legal Framework for Peace. In other words, if the Legal Framework for Peace reduced the role of criminal justice to a mere appendage of the transitional process, the New Agreement appears to restore it to its International Law status as an autonomous and necessary pillar of such process. Continue reading