ICTJ Program Report: Myanmar


Fifty years of military rule in Myanmar ended in 2011. Since then, a series of contemporary problems, rooted in the legacy of military rule, has developed.

Despite positive reforms, armed conflict still persists in northern Myanmar, economic liberalization has led to an epidemic of land grabs, and anti-Muslim violence and rhetoric throughout the country threatens to undermine positive developments.

In the latest program report, we speak with Patrick Pierce, head of ICTJ’s Myanmar program, who analyzes the state of transitional justice in the country. Pierce provides a look into the kind of technical assistance ICTJ is providing to civil society groups in Burma that are working to strengthen democratic institutions and increase confidence in the peace process.

Since coming to power in 2011, the government of President Thein Sein has instituted a series of reforms, including the release of hundreds of political prisoners such as opposition leader Aung San Suu Kyi, now a member of the legislature. Are transitional justice mechanisms like reparations, truth seeking, or criminal accountability a part of these reforms? How has ICTJ been involved?

We can see nascent moves for transitional justice mechanisms as part of these reforms but no overall willingness or strategy to deal with the past. However, as the government engages in ceasefire and peace negotiations with non-state armed groups, grievances about the past are coming up and the civil society groups in the affected areas are starting to organize around the issue of justice.

Many of the reforms need to be seen in light of their conditions, or limitations.

For example, political prisoners have been released, but most have been under article 401 of the penal code, which makes the release more of a suspended sentence or a parole rather than a pardon or amnesty.

"We can see nascent moves for transitional justice mechanisms as part of these reforms but no overall willingness or strategy to deal with the past."
    Last month, one of those prisoners who was released, Nay Myo Zin, was charged with defamation for saying the police who were involved in a land grab case were corrupt. He was given a small fine and a short, three-week sentence.

When the villagers whom he was helping posted his bail, he was informed that his previous sentence was no longer suspended and he was back in prison.

Before President Thein Sein visited the U.S., he ordered Nay Myo Zin’s release. It was a reminder to others who have been released that, in fact, their sentences are still hanging over them.

Alongside a wave —an epidemic, really— of land grabbing has come a real push by farmers and activists to challenge the impunity with which the military, cronies, and businesses have taken land. Those challenges – in both judicial and administrative venues – don’t seem to distinguish between pre- or post-elected government.

ICTJ started working on the situation in Myanmar in 2003 and then established a country program in 2008.

In 2009, we issued a major report, "Impunity Prolonged: Burma and its 2008 Constitution," which analyzed the flaws in the constitution that block options for transitional justice.

We also work extensively with local organizations that document human rights violations. Over the last 18 months, we have been working with released political prisoners, and civil society groups and international advisors involved in negotiations between the government and armed opposition groups.

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Though the transition in Myanmar began around the same time as many of the popular uprisings in the Middle East and North Africa, Myanmar’s shift to democracy has been largely attributed to the decision of its leadership to begin reforms. Before we look at the situation on the ground unfolding now, could you give some background on what led to the transition in the first place?

A complicated set of factors came into play. After Myanmar gained independence from Great Britain in 1948, there was a brief democratic period until General Ne Win staged a coup in 1962. Pro-democracy demonstrations forced his resignation in 1988, and from that time the military claimed to be a “transitional regime.”

In the last five or six years, there have been a few significant developments that we can point to – the monk-led demonstrations in 2007 calling for democracy and national reconciliation (Saffron Revolution); Cyclone Nargis in 2008; increased momentum for a commission of inquiry; and the recognition that the dictator, Senior General Than Shwe, was getting old.

The “infrastructure” of the transition – the 2008 constitution and the referendum that approved it, the elections that followed, and even the choice of leaders within the ruling party – was heavily managed to ensure an ongoing role for the military in politics and to protect their interests.    
"Over the last 18 months, we have been working with released political prisoners, and civil society groups and international advisers involved in negotiations."

Myanmar is strategically located between China and India and is rich in natural resources, so we can also see jockeying for economic engagement by those two growing powers and the U.S. and Europe played a part.

The constitution provides for the military to have 25% of seats in parliament and includes an immunity clause, exempting previous regimes from any form of accountability for decades of repression and human rights abuses. So there are some protections for them imbedded in the process.

In terms of positive motivations, though, several analysts have pointed to the desire for the armed forces to regain their reputation. They played a key role in the anticolonial struggle as well as in resisting Japanese occupation during WWII, so there is a historical legacy that was lost as it became the institution that oppressed rather than protected the population.

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In ICTJ’s opinion, is the general categorization of a “top-down” transition really accurate? How did anti-government protests, movements such as the 2007 demonstrations or local environmental protests, make an impact?

State power has diffused, from one man running the show, to a range of players jockeying for power and influence within the state, including the military, the parliament, and the executive.

The president and the leaders of the ruling Union Solidarity and Development Party (USDP) are former military, so the relationship between the party and the military is complicated, and there is, of course, an internal power struggle within the USDP.

"State power has diffused, from one man running the show, to a range of players jockeying for power and influence within the state."
    Add to that the rising influence of the opposition National League for Democracy, alliances of ethnic-based parties, and civil society generally, and we can see how complicated it really is. The power structure is not as straightforward as it was before the transition.

The next elections are in 2015. Aung San Suu Kyi’s party, the NLD, has remained widely popular, despite some concerns that her years of house arrest and the intimidation of party members over the last two decades had weakened it. The NLD swept bi-elections in 2011 and it’s expected to do very well in 2015.

As I mentioned earlier, there are ongoing peace negotiations in areas of armed conflict, so how those communities vote could also have a big impact on the outcome of elections.

The strained relations between the central government and these ethnic groups is at the heart of the conflict, and so some political resolution to their grievances is absolutely necessary. There are a few key ministers and some MPs who are very active in the reform and peace processes and it’s not very institutionalized yet, and that means the whole thing is rather precarious.

The impact of the 2007 demonstrations and other civil society actions – it’s hard to know how much they influenced the process of finalizing the constitution and holding elections.

On the whole, though, there is a sense that the government cannot completely dismiss public opinion as it did during military rule. Some of ICTJ’s partners, including groups of former political prisoners, are now actively engaged with the government, advocating for the release of remaining political prisoners, for example.

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Anti-Muslim invective and violence by militant Buddhist nationalists have now spread from Arakan State to central Myanmar. Authorities have failed to control the violence and, in some cases, allegedly helped instigate it. Some Burmese authorities have suggested this is “communal conflict” inherent in a multiethnic and mutlireligious country. Why did this violence start, and how is it affecting any potential transitional justice dialogue?

First of all, I think it’s important to note that the ethnic conflict is not inherent and not inevitable.

It's a long story but basically it goes back to colonialism. The groups have intermingled throughout India and Southeast Asia for centuries, but when Myanmar was colonized by Great Britain, a lot of civil servants came from India to keep the administration in the colony going.

So there has long been resentment about that, and periodically since independence, the authorities have whipped up anti-Muslim sentiment to promote national unity around an idea of a Buddhist nation.    
"The ethnic conflict is not inherent and not inevitable. "

The conflict near the Bangladesh border is all the more complicated because the Rohingya are denied citizenship and because they are in Arakan State. The Arakanese themselves have been discriminated against by Burman-led military governments of the past, their natural resources have been exploited; it’s a quite impoverished area.

The default response to the violence is an increase of security measures, feeding into this myth that the conflict is inevitable and inherent and so the only way to deal with it is through force.

Viewing it that way removes the prospect of really understanding who is instigating the conflict, of holding anyone accountable, and looking at who benefits from it and what should be done to increase trust between the groups, rather than reinforcing their separation.

So this violence is not the result of newly realized freedoms—quite the opposite. It’s a continuation of the pattern of impunity that past regimes have enjoyed for human rights violations against ethnic communities.

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#### Myanmar’s peace process is highly complex, and involves a great number of unique actors. Are there issues being negotiated in the peace process that could have implications for future transitional justice measures?

The negotiations at this stage are preliminary and really are more about establishing and maintaining ceasefires.

Earlier this year, the government met with the United Nationalities Federal Council (UNFC), which represents 11 ethnic armed groups, and the agenda there is more political.

Among the ethnic groups, including the UNFC, there is a broad consensus that political dialogue needs to include a mechanism for protection of human rights, reintegration and resettlement of refugees, and recognition and promotion of cultural rights.

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#### While thousands of political prisoners have been released, over one hundred political prisoners still remain in jail. Many who were released face a range of challenges of reintegrating back into society, such as mental and physical health problems due to mistreatment, a lack of formal education, and social stigma associated with having been a prisoner. What has been the result of releasing these political prisoners, and how are they treated as they reintegrate back into society? How is ICTJ engaging with these groups?

The release of political prisoners has been a very positive development.

Many of the leaders from the pro-democracy movement that formed during demonstrations in 1988 are now major political figures and they are inspiring others and providing leadership to their peers and younger generations.

They have also had a positive influence in reaching out to areas of armed conflict and educating themselves about conditions in those areas.

"This violence is not the result of newly realized freedoms—quite the opposite. It’s a continuation of the pattern of impunity."
    But those are the people in leadership positions. For many other released prisoners, their education or their careers were interrupted and it’s difficult to reintegrate into society.

Some have suffered really serious health problems, both physical and mental. And the conditions placed on them through article 401 of the penal code, which I mentioned earlier, is a real problem in terms of confidence that they can play a role in promoting national reconciliation.

According to advocacy groups, there are still over 150 political prisoners who haven’t been released. The president’s office formed a committee to address the issue of political prisoners, to determine which prisoners are behind bars for political reasons and to get them released. That committee is composed of both government and civil society representatives, but it has been criticized for not going far enough, for not addressing the needs of released political prisoners, who face a range of challenges that you mentioned – problems that they shouldn’t have to face.

ICTJ has conducted trainings with some released political prisoners. Many of them are active, providing psychosocial support to other released prisoners through self-help groups, vocational training, and things like that.

The trainings we have done have introduced a rights-based approach to their experiences. As victims of torture, as victims of arbitrary arrest and detention, they have the right to know the truth about what happened and why, the right to some form of reparation.

We were able to provide some comparative experiences and talk through what their priorities might be for realizing those rights, and we’ll continue providing technical assistance to them as they develop their programs, whether it’s documenting their experiences in a systematic way, commemorating political prisoners who died in prison, or pushing lawmakers to acknowledge that they were, in fact, political prisoners and not criminals.

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Local organizations have been documenting human rights violations in Myanmar for over a decade. ICTJ has provided advice and training to groups on how this documentation could contribute to establishing an accurate historical record of Myanmar’s past, or how it could be used for future justice and reconciliation efforts. Can we expect to see some sort of official truth-seeking mechanism established in Myanmar?

I think it’s too early to tell. One consistent issue that I hear through nearly all my interactions with people in the country is the importance of acknowledgement.

In one of our trainings, a former political prisoner told the group he did not want revenge and that he would prefer to just move on and forget about what happened to him. But because of the torture he was subjected to and the conditions he lived with in prison, he has a chronic back problem and it causes him a lot of pain. When that pain shoots up his back, he said, he doesn't feel so forgiving any more. And he at least wants it acknowledged that he should not be suffering the way he is.

I think there is a lot of ambivalence as well, and fear, that bringing up the past will provoke a coup by the military.

In terms of documented violations, I think that record gives to communities an important tool for bringing their grievances to the table, when it comes time for political dialogue and the real hard part of national reconciliation.    
"When that pain shoots up his back, he said, he doesn't feel so forgiving any more. And he at least wants it acknowledged that he should not be suffering the way he is."

What form that will take – no one is sure yet. But there is increasing momentum for dealing with the past and more recognition, at least in some sectors, that a durable peace and genuine reconciliation will have to include ways of addressing grievances for past human rights violations.

To that end, ICTJ will have a couple of briefing papers published soon.

The first is an initial exploration of the extent to which justice issues are currently featuring in both national demands and international assistance around strategies for development, peace, and nation building in Myanmar, as well as opportunities for progressing issues of justice.

The other is a very practical briefing on the challenges faced by released political prisoners and what changes could be made to ease their reintegration into society. We will continue to work with ethnic civil society groups as they explore how justice figures in the peace process and provide technical assistance to new initiatives as they emerge.

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Photos: TOP: Large crowd marches downtown Rangon calling for democratic change, September, 2007 PATRICK PIERCE/ICTJ; Buddhist monks gather in the streets during protests of September, 2007 PATRICK PIERCE/ICTJ; Sunset, Shwedagon Pagoda PATRICK PIERCE/ICTJ; Clay pots and red fabric form a public commemoration of the 8-8-88 uprising that took place on August 8, 2012 PATRICK PIERCE/ICTJ; A young boy walks through a Rohingya refugee camp, 2013 STEVE GUAMER via Flickr; A monk views a display recounting the killings of 8-8-88 protesters, which reads "Martyrs who sacrificed their lives for people's democracy." August 8, 2012, Mandalay. PATRICK PIERCE/ICTJ; Former political prisoners gathered for an ICTJ training on transitional justice, and asked that this photo be shared with the world as part of the International Day for the Right to the Truth. PATRICK PIERCE/ICTJ.