Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


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Collective punishment: home demolition in Israel and Occupied Palestine

By Meredith McBride

On June 8, two Palestinian men from Yatta, a small town near Hebron in the occupied West Bank, opened fire on a café in Tel Aviv, killing four Israelis. On June 9, the Times of Israel reported that the homes of the men’s  families were marked for demolition by the Israeli Defense Forces  (IDF).

Khaled Mahamra, one of the alleged shooters, was in third grade in 2002 when the IDF destroyed his family’s house. According to Israeli newspaper Haaretz, the IDF demolished the home where Khaled Mahamra’s extended family lived in response to accusations that his uncle, Taleb Mahamra, had killed Israelis. In October 2002, as family members looked on, the IDF launched a missile at the three-and-a-half story house while Taleb Mahamra was trapped inside by bulldozers.

The IDF completed the demolition of the Mahamra home in 2003. Mohammad Mahamra, Khaled Mahamra’s cousin who was also detained for the attack in Tel Aviv, watched on as the IDF arrived at 1:00 a.m., surrounded the home with tanks, and ordered the family out, not allowing them to remove their personal belongings before demolishing the home. The explosion destroyed documents, clothing and schoolbooks, and left the family homeless.

The Mahamras’ story raises questions about the punitive nature of home demolitions and whether they comply with local and international law.

This year is the 50th year that Palestinians have been living under Israel’s military occupation. Israeli Military Order 378  grants the military courts broad jurisdiction to apply military law to both occupants and non-occupants of the Occupied Palestinian Territories, regardless of where an alleged offense took place.  In practice, however, outside of IDF disciplinary proceedings, military law is applied only to persons of Palestinian origin. Occupants of Israel’s more than 100 settlements within the Occupied Territories are governed by Israeli civil and criminal law rather than military law.

In the Yale Journal of International Law, Dan Simon wrote that home demolitions can be divided into three categories: administrative, military-need, and punitive. Administrative demolitions are granted by Articles 43 and 55 of the Hague Regulations to restore and maintain “public order and safety” while Article 53 of Geneva Convention IV grants that a demolition can be used to secure an area in an operation that requires the use of military force.

A third type of demolition, the one used by the IDF, is a punitive measure taken against the family members of Palestinians who have allegedly committed crimes. Israel’s use of home demolitions against innocent persons in the Palestinian Territories, East Jerusalem and the Gaza Strip has been documented and discussed extensively by academics, NGOs, and the press, and even prompted the creation of NGOs such as Israeli Committee Against House Demolitions (ICAHD).

According to the ICAHD, such demolitions do not narrowly target suspects, but rather are a form of collective punishment. One report documents an instance when a suspect’s rented home was demolished, which suggests that demolitions are not limited to homes owned by the suspect. The report also notes one demolition of a suspect’s father’s home, which displaced dozens of extended family members, including young children, who were left homeless as a result of the demolition. After a home is destroyed, the IDF confiscates the land, and prevents the family from rebuilding on it. ICAHD estimates that since 1967, total of around 48,038 Palestinian structures have been demolished in East Jerusalem, the West Bank and Gaza Strip, using a variety of justifications.

LEGISLATIVE PRECEDENT

Israel justifies its use of home demolitions under military law, a colonial holdover from the British mandate, which governed Palestine from 1923 to 1948 and authorized punitive demolitions of Arab homes in the 1936-39 Arab Rebellion. According to Israel, regulation 119 of Britain’s Defense (Emergency Regulations), which granted Britain the authority to demolish structures, was never repealed when the territory came under Israeli power, and now applies to the whole of the West Bank. The United Kingdom says that it repealed the Regulation.

Many human rights bodies and organizations have expressed that Israel’s policy of home demolitions is illegal under international human rights mechanisms to which Israel is a signatory. Examples include violations under Articles 12 and 17 of the International Covenant on Civil and Political Rights protecting freedom of movement and the family, respectively.  Freedom from all forms of violence and right to health and welfare listed in numerous Articles in the Convention on the Rights of the Child and in Article 11 of the International Covenant on Economic, Social and Cultural Rights, protecting the right to adequate housing and living conditions.

Protection from arbitrary deprivation of property is protected by the Universal Declaration of Human Rights, which some argue has the status of binding customary law. The UN Committee against Torture also expressed regret over Israel’s resumption of “punitive” house demolitions in the Gaza Strip and East Jerusalem when it reviewed Israel’s policy in 2009 and stated that Israel should stop these violations of international law. The Committee also noted in its 2016 review that Israel’s policy violated Article 16 of the Convention Against Torture, which expressly prohibits cruel and unusual punishment.

Citing international humanitarian law, Human Rights Watch has called house demolitions “a war crime” that collectively punishes innocent families, often women, children, and the elderly that rely on the family home. The Hague Regulations of 1899 in Article 50 expressly prohibit general penalty, pecuniary or otherwise from being inflicted upon “the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” Collective punishment is also prohibited in Israel’s Manual on the Laws of War.

Israel has not ratified the Rome Statute of the International Criminal Court (ICC) , which in article 8(2)(a)(IV) prohibits extensive destruction of property, defining it as a war crime.  In April 2015, Palestine became a party to the ICC, and  lodged a complaint  against alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” These crimes include home demolitions.

Geneva Convention IV also provides protections for persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”  Though Israel had intended to apply Geneva Convention IV to the Palestinian Territories after the beginning of its occupation in 1967, political influence encouraged an ideology that the West Bank was rightfully part of Israel, and was ‘liberated’ rather than ‘occupied.’  Thus, the order enacted for governing the territories had no reference to the Convention, meaning that Israeli law continues to trump customary international law in these circumstances.

JUDICIAL PRECEDENT

The Israeli military suspended most punitive demolitions in 2005, based on a report which found that demolitions did not prevent attacks or serve as a deterrent. The report was conducted by a military commission under Maj. Gen. Udi Shani, whom was appointed by then Chief-of Staff Moshe Ya’alon. Despite this, Israel recommenced demolitions in 2014 after the abduction and murder of three Israeli students in East Jerusalem, and the High Court of Justice has since then refused to prohibit the practice. The Court has also continued to uphold the legitimacy of Rule 119, despite arguments that it contravenes Israel’s obligations under international law.

In 2006, in Awawdeh et al v. Military Commander of the West Bank Area, the Court acknowledged that it would be impossible to conduct a scientific study to prove the effectiveness of the home demolition policy in preventing terror. The resulting stalemate in the efficacy of home demolitions as a means to prevent crime indicates that such considerations should be left out of the debate altogether, focusing instead on the relevant law and principles of equal justice and human dignity.

Despite recognizing the difficulty in proving any efficacy of the policy of house demolitions, the Court stated in 2014 “that the terrorist is expected to be punished in a criminal proceeding does not prevent the exercise of the authority” [to demolish the home]. The Court’s frequent reference to suspects as ‘terrorists’ is problematic as it often predicts the outcome of a criminal trial that has yet to finish. The Court additionally stated that the exercise of the authority to demolish is not conditional on the court finding the person guilty of the offense. Rather, the IDF can rely on their own evidence and independently determine whether or not there was sufficient reason to proceed with the demolition outside of the criminal justice system.

Justice Turkel in Sa’ada v. GOC Home Front Command, heard in 2003, stated in a frequently cited opinion:

“The idea that the terrorists’ family members, that as far known did not help him nor were aware of his actions are to bear his sin, is morally burdensome… However, the prospect that the demolition or sealing of a house shall prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be victims of terrorists’ heinous acts, more than it is appropriate to spare the people dwelling in the house. There is no other way.”

In this opinion, Justice Turkel expresses clearly to value the security of Israeli citizens, whom are often seen as the victims of attacks, more than the lives and security of Palestinians who have no role in the violence.

RENEWED CALLS TO END HOME DEMOLITIONS

Since an upsurge in violence began in October 2015, Israeli human rights NGO B’Tselem estimates that the Israeli authorities’ policy of home demolitions has displaced 149 people, of which 65 are minors. Ten more families await rulings on their petitions to stop demolitions of their homes from Israel’s High Court of Justice.

As recently as June 12, 2016, the Israeli High Court approved the demolition  of the homes of family members of two 21-year-old men who carried out a knife attack in Jerusalem in December 2015, despite the attackers themselves dying from gun wounds shortly after the attack. The Court denied an appeal by the family who argued that the policy was discriminatory against Arabs. The appellants pointed out that home demolitions are almost exclusively used against Arabs, and that the attackers could no longer be punished as they were deceased.

Israel’s justification for its policy of punitive home demolitions is that it deters others in the community from committing crimes against Israel by making a suspect’s family homeless and robbing them of the value of their land  (though Israel also has a parallel policy of demolishing Palestinian homes to make way for Israeli settlements and even forests). But in a case brought by HaMoked Center for the Defense of the Individual and seven other human rights organizations, Justice Sohlberg acknowledged that the goal of the program was collective punishment: “…the demolition of terrorists’ houses will add to the cost-benefit calculation conducted by a potential terrorist the knowledge that his family members will pay the price for his actions.”

Despite the questionable foundation of international and domestic law seeking to justify the legality of home demolitions, Israel’s own justification for this policy is all the more problematic in light of the aforementioned 2005 study undertaken by the Israeli military that home demolitions are not effective deterrents. This is exacerbated by the fact that home demolitions are almost exclusively used against Palestinians, not Israelis who have committed similar attacks.

In addition, the Courts’ complicity with the IDF to condone the policy of home demolitions against Palestinians shows a clear disregard for the dignity and worth of individuals by seeking to punish them outside of the criminal justice system. The June attacks on civilians in Tel Aviv cannot be condoned, but neither can the collective punishment of innocent Palestinians through the wanton destruction of family homes.

Meredith McBride is a 2016 Leitner Center Summer Fellow.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit:Creative Commons/michael loadenthal

 


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Witnessing occupation, apartheid and resistance in Palestine/Israel

By Urooj Rahman

On a recent trip to the West Bank, I struck up a conversation with a member of the Waqf—the Jerusalem Islamic Trust, which manages the edifices of the Al-Aqsa Mosque compound—while waiting by the entrance of the mosque. “Here we have no haquqal-insan [Arabic for human rights],” he said. His truthful and cynical remark was a response to my statement on what I was doing there in Palestine/Israel. I knew, even as I told him that I was there to do human rights work, he would find it amusing, though he still thanked me so as not to be rude. And who can blame him for finding human rights work in Palestine inconsequential? My fieldwork confirmed for me that the lives of Palestinians in the occupied Palestinian territories as well as inside Israel are seen as expendable and less valued by the Israeli government. The systematic oppression they face is viewed as a necessary consequence to keep the Israeli military state in power and to assert dominance over the indigenous Palestinian population.

I witnessed this oppression quite vividly on my initial visit to the West Bank. I was greeted by heavily armed Israel Defense Force soldiers (aka the Israeli Occupational Force) ushering people through Qalandia Checkpoint, one of the main points of entry into Ramallah in the West Bank from Jerusalem and a potent symbol of Israeli occupation. While taking part in one of the largest protests in the West Bank since the second intifadah this past July, I saw how peaceful protests at Qalandia (and other places) can turn into violent clashes when IDF soldiers provoke violence using tear gas, stun grenades, rubber-coated steel bullets and, often, live ammunition at civilians exercising their free speech. Over 40,000 strong, this protest was composed of youth, families, women, men, children and grandparents, all of whom marched together from the center of Ramallah to Qalandia checkpoint on the road to Jerusalem. What started out as a peaceful demonstration of resistance to the occupation and in solidarity with fellow Palestinians in Gaza—who were at this time facing aerial bombardment while under an occupational blockade with nowhere to escape—turned into an all-out clash. Young Palestinians were forced to resort to throwing rocks, their only form of self-defense, as IDF soldiers fired tear gas and skin-penetrating bullets into a peaceful crowd.

With the reelection of Israeli Prime Minister Benjamin Netanyahu, who promised that no Palestinian state would form under his leadership, and the continuing brutality faced by Palestinians living under an illegal occupation, it is more important than ever to reexamine the situation of human rights in occupied Palestine.

BACKGROUND

Palestinians are the indigenous people of the land between the Jordan River and the Mediterranean what is now present-day Israel, the West Bank and Gaza Strip. At the time of the creation of the state of Israel between 1947 and 1948, also known as the Nakba [Arabic for catastrophe, signifying the loss, theft and ethnic cleansing of Palestinian land], many Palestinians were forcibly removed or were forced to flee historic Palestine—present-day colonial Israel—out of fear of persecution from the invading Zionist forces. Many became either internally displaced within present-day Israel or refugees in the West Bank, Gaza, East Jerusalem, Lebanon, Syria, Jordan and many other countries throughout the world. Today, approximately five million Palestinians remain refugees in Jordan, Lebanon, Syria and elsewhere, unable to return to their former homes and land in present-day Israel, even though the right of return for refugees is enshrined in the Universal Declaration of Human Rights and under U.N. Resolution 194.

Approximately four million Palestinians live in the occupied territories collectively, including the West Bank, Gaza and East Jerusalem. They have their lives and daily movements controlled by a government they did not vote for while living under a military occupation that oppresses and dehumanizes them. In addition to controlling the land, borders, air space, water, housing, electricity and other crucial aspects of life under occupation, Israel solely controls how identity cards, which hold the key to freedom of movement and right to work, are issued. The human rights abuses faced by Palestinians living under Israeli occupation include daily and nightly raids of refugee camps, housing demolitions, arbitrary and indefinite detention (increasingly of children), torture, collective punishment, restrictions on freedom of movement and the violent stifling of protest or dissent. This is in addition to the killings of and attacks on Palestinians on nearly a weekly basis in the West Bank and the aerial bombardments of Gaza every few years. Palestinians have almost every aspect of their lives controlled by the Israeli occupying forces with very little power or political clout to resist the occupation and oppression they face.

APARTHEID

According to the International Convention on the Suppression and Punishment of the Crime of Apartheid, apartheid is defined as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” This definition is consistent with what I witnessed for Palestinians in the occupied West Bank, with separate and segregated roads, buses, schools and infrastructure—one set for use by Palestinians and another for Israeli colonial-settlers. Palestinians are also often deprived of their rights to life, liberty, freedom of movement and non-discrimination. Even more evident is the intentional use of the law and the application of two different and unequal legal standards to subjugate and dominate Palestinians with ease. Israeli military law is applied to Palestinians in the West Bank, while Israeli civil law is applied to Israeli settlers. This dual legal system allows for harsher penalties and less due process for a Palestinian, in comparison to their Israeli peers. Moreover, the unequal treatment of residents on an ethnic-national basis has led to systemic discrimination that affects almost all aspects of Palestinians’ lives. Much legal scholarship, including a report from South Africa, has documented apartheid in Israel and occupied Palestine. This segregation is not only unjust, but it also exacts a heavy toll on Palestinian residents.

One of the most grueling reminders of apartheid is the separation wall dividing the West Bank from Jerusalem and Israel along the Green Line, which demarcates the 1967 armistice line between Israel and the Palestinian territories. The building of the wall was seen by many as an illegal act under international law and received condemnations from the International Court of Justice. Further highlighting the illegality of the wall is how the Israeli government has built the wall several feet off of the actual Green Line in an attempt to grab more land, on top of the illegal, unilateral annexation of East Jerusalem in 1967.

CONTINUING VIOLENCE

Aside from many forms of non-physical violence, Israel continues to wage a campaign of relentless physical violence against Palestinians. Prior to the aerial bombardment and ground offensive on Gaza in July of 2014, the Israeli government and the IDF conducted an indiscriminate, all-out raid in the West Bank while searching for three kidnapped Israeli settler youths near the city of Hebron, though it was believed that Israel already knew of their fates before conducting the raids. During the search, the Israeli government rounded up and arbitrarily detained many innocent civilians for indefinite periods of time and killed at least 19 Palestinians during the months of June and July as a form of collective punishment.

Later in July, the IDF engaged in an aerial bombardment and ground offensive that disproportionately targeted civilians in Gaza. Israel engaged inter alia in the indiscriminate bombing of residential neighborhoods, killing over 2,200 Palestinian civilians, including nearly 500 children as well as first responders, according to the U.N. Additionally, the IDF targeted civilian infrastructure, including hospitals, power plants and UNRWA schools, in violation of international humanitarian law. Some of these structures were serving as U.N. designated shelters for those displaced by violence.

As an occupying power engaged in hostilities, Israel must abide by its obligations under international humanitarian law, which are set out primarily in the Regulations Annexed to the 1907 Hague Convention respecting the Laws and Customs of War on Land and the Fourth Geneva Convention of 1949. This includes ensuring the safety and welfare of civilians living in occupied territory. However, the actions taken by the IDF in the months of June and July of 2014 run counter to these obligations and are expressly prohibited under humanitarian and human rights law. A new report by the U.N. Independent Commission of Inquiry on the 2014 Gaza conflict found evidence that Israel (and Palestinian armed groups) committed war crimes during the 2014 conflict. Nonetheless, impunity continues to be the norm, as noted by the U.N.

EXPANSION OF ILLEGAL SETTLEMENTS

Another major point of provocation is the constant expansion of illegal settlements throughout occupied East Jerusalem and the West Bank, as well as the often-accompanied housing demolitions of Palestinian homes. The prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies is set forth in the Fourth Geneva Convention and its Additional Protocol I. Under the Statute of the International Criminal Court, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts. During a six month period in 2014 alone, 7,500 new Israeli settlers moved into the occupied West Bank, alongside the 382,031 Israeli settlers who already reside in illegal settlements that surround various Palestinian towns and villages, effectively making the Palestinian-controlled West Bank an archipelago of small land islands. As the new settlers continue to slowly take over the small parcels of land left for Palestinians, there are rising reports of violent attacks on Palestinian civilians, including kidnapping, torture and murder of Palestinian youth, and the destruction of olive trees that have been planted by Palestinian farmers.

In Hebron, for example, local Hebronites are faced with abuse, assaults and harassment from both Israeli settlers and the IDF. There are multiple internal checkpoints within the city restricting the movement of Palestinian residents, while Israeli colonial-settlers who have moved into Palestinian homes in Hebron are allowed to attack Palestinians and their businesses with impunity. The settlers often throw stones at the Palestinian Hebronites, insult them, throw garbage down on their shops, assault or intimidate them, all while the IDF soldiers sit idly by, making the city an occupied territory within an occupied territory.

IN SEARCH OF JUSTICE

This all comes at a time where the Palestinian Authority (PA) has acceded to the Rome Statute, thereby giving the International Criminal Court (ICC) jurisdiction to investigate possible war crimes and violations of international humanitarian law committed by all parties. This step was not taken lightly, as the PA knew the backlash it would receive from the Israeli government.

While the many nations of the world—including our own, which provides nearly $8 million a day in military aid to Israel—allow this oppression to go on, Palestinians have now joined the ICC as its 123rd member. We will wait to see if any justice, or at least recognition of Palestinian suffering, will at all be achieved from this move.

 

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Urooj Rahman is a Staff Writer for Rights Wire. She was also a 2014 Leitner Center Summer Fellow, who spent her summer interning with Mada Al-Carmel and Palestine Works in Israel/Palestine, where she conducted research, fact-finding and advocacy work on political, social, economic and legal issues affecting Palestinian citizens of Israel.

This post was originally published on June 23, 2015.

 


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Developing strategies for advancing women’s rights using international law (part 2 of 2)

By  Carolina van der Mensbrugghe

“Why are you interested in learning more about women’s rights?” This icebreaker kicked off our training on women’s rights advocacy in Myanmar, and in response, one participant turned to me and said, “I used to love listening to a Burmese pop artist’s music until he came out with a song that compared women to pigs—lyrics noted that women would eat anything and everything if they didn’t have noses.” After noting the inherent misogyny in this Burmese “Blurred Lines,” she continued, “My brothers didn’t believe me when I told them our society isn’t equal, until I reminded them that they never have to ask permission to leave our house unaccompanied, never have to wash the dishes or do laundry. They agree with me now. These are moments I realized how important women’s rights are, and this is why I am here.”

On May 21, the Leitner Center helped to facilitate a dialogue on the international human rights legal framework with women’s rights activists in Myanmar. Our presentations were aimed at providing participants with ways to compliment international advocacy with the multi-pronged domestic strategies. As my fellow Crowley Scholar, Zahava Moerdler, discussed in part one of this two-part series on the Leitner Center’s recent training, we sought to empower and collaborate with women’s rights activists in Myanmar during our time there. As Myanmar undergoes its transition towards democratization, our capacity-building dialogue took advantage of a newfound space for dialogue on the nature and potential of human rights advocacy.

Our training also coincided with build up to the Committee on the Elimination of Discrimination’s Against Women’s (CEDAW Committee) review of Myanmar’s implementation of its international gender equality obligations, took place on July 6 .  This UN mechanism is a crucial international legal tool for advancing women’s rights due to the obligations it places on governments to enforce the treaty mandate, which enshrines the commitment to end gender-based discrimination in all sectors of society at the hands of both public and private actors. One of the civil society NGO participants, The Women’s League of Burma (WLB),  had recently submitted its shadow report  to the CEDAW Committee detailing gender rights violations, in particular the ongoing impunity for acts of sexual violence in ethnic conflict areas. WLB was notably eager to discuss strategies that representatives would present in Geneva at the CEDAW Committee review to stop these grave international crimes from continuing.

After a brief overview of the international legal framework, the focus of the May 21 dialogue narrowed to address how this framework protects gender equality. The discussion opened by asking the participants, “Do we need women’s rights when we already have human rights?” This question set the groundwork for an extended discussion on how certain laws and patriarchal values within Burma’s society have a disproportionately negative impact on women, including when intersectional social identities, including LGTI, rural and ethnic minorities, overlap.

A participant from Akhaya,  an organization dedicated to sexual health education, spoke of the detrimental impact the withholding of reproductive health has had on women in local communities. While health education is afforded to all, women are at best not taught about changes occurring during puberty and, at worst, are told that their menstrual cycles render them impure, with the ability to steal the hpoun (more of less, a concept of “masculine power”) of men.  While rural areas overall experience a greater impact, the participant noted that these views were pervasive and common in urban areas and all socio-economic backgrounds. This anecdote, among others, reinforced CEDAW’s importance in articulating a state’s obligation to not only enforce, but also to fully implement measures that eliminate practices entrenching gender equality.

The remainder of the dialogue consisted of unpacking how international law defines and protects against sexual violence in conflict, domestic violence, sexual harassment and damaging cultural norms and traditions that violate women’s right to marriage and family planning. When discussing international legal protections against domestic violence and sexual harassment, many participants expressed frustration towards government inaction on these issues. The government’s unwillingness to “interfere” in domestic partnerships or deal with “harmless” sexual remarks led participants to believe these were issues that place no imperative on action in the domestic civic space, let alone international spheres.

The solidarity among all the women as they shared of anecdotes addressing frustrations towards rights violations was palpable and, at times, infused with plucky and insightful humor. While discussing the substantial impact sexual harassment has on women’s career prospects and work life, one participant asked whether “mansplaining” is included as a violation under the law.

Participants were empowered by the knowledge that international law obligates the government of Myanmar to end impunity for all acts of gender discrimination—including those that occur in the bedroom or the workplace, spaces often deemed outside government oversight. The international legal framework by no means provided the solution, but rather supported and strengthened the strategies devised to develop meaningful policy reform in these ill-attended areas.

The conversation subsequently shifted towards connecting interaction with UN with domestic advocacy. Participants cited the current climate of cultural norms and traditions, as the major impediment to gaining traction with local officials and society at large—women’s initiatives and activists are often de-prioritized and segregated from overall peace process, investment projects and development deals shaping the country’s future.

Change in this respect, must come from within, and by one mind at a time. However, by the end of the training, the participants discovered renewed excitement and newfound tools to engage with and apply pressure in solidarity with the international community.


Carolina van der Mensbrugghe is a 3L at Fordham Law School. She was a 2015-16 Crowley Scholar in International Human Rights.

Photo credit: Carolina van der Mensbrugghe

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

 


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Myanmar’s democratic transition and the role of international groups in promoting human rights (part 1 of 2)

By Zahava Moerdler

Since Myanmar’s transition from military rule to democracy began in November 2010 , there has been increased space for democratic debate and human rights advocacy. This opportunity presents a unique historical moment for those working in human rights to help propel and sustain real change.

In November 2015, Myanmar hosted elections where, for the first time in decades, non-military civilian leaders were voted into power. Unlike past elections, the military allowed the election results to stand and pledged to support a transition in leadership.  The military generals who had controlled the country for over fifty years ceded power to the National League for Democracy (NLD), led by Nobel Peace Prize Laureate Aung San Suu Kyi. Despite the NLD’s victory, the military still retains control over the country through de facto parliamentary veto power authorized by the constitution. The military also has control over all national security matters. Although the military could have suspended or reversed the country’s progress towards democracy, the military chose to accept and back the democratic election outcomes.

A resource-rich country with a population of over 56 million people, Myanmar is the second largest country in mainland Southeast Asia. Sixty-eight percent of the country’s population ethnically identifies as Burman, and there are significant proportions of other ethnicities, including Shan (9% of the population), Karen (7%), Rakhine (4%), Chinese (3%) and Indian (2%).  While the largest religion represented in Myanmar is Buddhism, there are also Muslim and Christian populations. Myanmar became a British colony in 1885 and finally achieved full independence on January 4, 1948. Although Myanmar gained independence, the country was ruled by a dictatorial military junta for over 60 years.

Since coming into power, Aung San Suu Kyi —who cannot be President because of constitutional provisions, but has acceded to a role “above the President”—has demonstrated a number of strong policy stances. She reflects the country’s trend towards democracy, which has helped ease U.S. tensions.  However, clear examples of backsliding, from before the election and after, remain troubling. In 2014, new legislation promoting Buddhism over other religions and instituting state control over inter-faith marriages, polygamy, religious conversion and family planning, was introduced.  Additionally, sexual violence, particularly within conflict zones, remains a rampant issue that is not being addressed either at a local or national level.  There are also concerns over freedom of expression and freedom of press. In 2015, student protesters in Letpadan were arrested for refusing to disperse during a protest.  Finally, Suu Kyi has refused to call the Rohingya, the Muslim minority in Myanmar, by their own name or to address the rampant discrimination and abuses they face.  Under Suu Kyi’s leadership, Rohingya are not only to be called Bengalis, which calls into question their nationality and Burmese citizenship, but they are also denied basic human rights and excluded from the peace process. Additionally, there is not a single Muslim legislator in the country.

Despite many challenges since 2010, including the backsliding on democratic advances, many human rights activists now see an opening to push for concrete and widespread change. While reform must undoubtedly come from within Myanmar, there is still much space for international groups to play a role. Close international attention and sustained action in ensuring small steps by the Burmese government may lead to substantive reforms. International groups must, of course, understand the complex political situation in the country, the informal and formal institutions that abound, and the nuanced conflicts in ethnic minority regions.  As Myanmar sees an increase in funding and capital, international groups should work closely with civil society and grassroots organizations to adhere to their in-country mission, support tailored programs and solutions and promote coalition-building at the local, regional and international level.  They must also center and empower local activists and marginalized groups, such as women and ethnic minorities, to take the lead.

Since gender justice remains an urgent issue in Myanmar, the Leitner Center for International Law and Justice worked with Justice Trust, a U.S. based human rights non-profit working with grassroots lawyers and activists in Myanmar, to conduct a training on women’s rights and gender equality this past May. The training was prepared for local civil society leaders to come together and discuss the issues they are tackling and to plan concrete strategies for the future. During this training, we sought to meet the needs of local activists while presenting nuanced information and facilitating meaningful dialogue.

As part of the Crowley Program in International Human Rights, three other Crowley Scholars and I, under the supervision of Executive Director Elisabeth Wickeri and Senior Fellow Joey Lee, worked to prepare and present a training on international legal mechanisms that can be used in the fight for gender justice. The Crowley Scholars each looked as a specific issue within gender justice: sexual violence in conflict, domestic violence and sexual harassment, participation in politics, and rights to marriage and family planning. The training analyzed the topic of gender justice from both domestic and international law perspectives. On the first day of the training, our partner, Justice Trust, led discussion on legislation pertaining to domestic violence and sexual violence in conflict. They also provided a legal framework for activists to understand their rights so as to work on advocacy campaigns and strategy building for their communities. On the second day, the Leitner Center presented international human rights law framework and delved into the international protections provided for our four focal areas. The goal of the training on the second day was to incorporate the strategies developed for domestic and international advocacy together to create a long-term calendar or campaign of human rights advocacy on these issues.

This was our first introduction to the activists working on women’s rights and gender justice in Myanmar—a brave, proud and energetic group. The women and men in the room represented activists working on many different issues from around the country. It was incredible to be able to hear from them and learn from them. One of the most rewarding parts of the training was when activists were given the opportunity to discuss the issues they face in their work. In Part II of this blog post, my fellow Crowley Scholar, Carolina van der Mensbrugghe will discuss one of the most important conversations we had with local activists (teaser: it was a rich discussion about sexual harassment) and some of the strategies developed at the training.

Zahava Moerdler is a 3L at Fordham Law School. She was a 2015-16 Crowley Scholar in International Human Rights. 

Photo credit: Leitner Center

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.