Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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They Who Shall Not Be Named: The Unspoken Situation in Myanmar (Part Deux)

Kia Roberts-Warren

Last semester, I discussed the dire situation of the Rohingya in Myanmar. It seemed like Ms. Aung San Suu Kyi was working to bring a peaceful solution with the Rohingya. The situation seemed hopeful. Yet, here we are once again discussing this situation.

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“Things Have to Get Worse Before They can Get Better?”

On October 9, 2016, the situation escalated, resulting in death. The Harakah Al-Yaqin launched three predawn attacks on three police border posts.[1] One of the posts was the security headquarters; the assault involved several hundred assailants and included planting improvised explosive devices and setting an ambush on the approach road, delaying the arrival of army reinforcements, while the attackers looted the armory.[2] On November 12, 2016, in another encounter, a senior army officer was killed.[3]

The Tatmadew, the Myanmar military, retaliated with a counterinsurgency operation. This operation was disproportionate and failed to distinguish between civilians and combatants.[4] This resulted in about 1,500 buildings being torched in the township of Maungdew, an estimated 65,000 people have fled to Bangladesh as a result.[5] Documentation shows extrajudicial killings, rapes, arbitrary arrests, and beatings by the government security forces.[6] The Tatmadew have also almost entirely sealed off the northern area of Arakan in the Rakhine State.[7] The government has banned the Rohingya from using their boats to fish in order to “prevent insurgents from leaving or entering the country by sea,” leading to many risking their lives on makeshift rafts in order to get food for their families.[8]

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These human rights violations by the Tatmadew have not been handled well by the government. The government has admitted that people have been found dead and that those arrested were suspected members of Harakah Al-Yaqin and their supporters.[9] However, the government’s rebuttal to the human rights abuses have been undesirable. The country’s Attorney General’s office have posted “Fake Rape” on its website to discredit reports that the Tatmadew officers have committed rape.[10] Furthermore, the government has denied accredited journalists and human rights investigators access to verify the abuse.[11] The government formed a special investigative committee led by former General Myint Swe (now Vice President of Myanmar) to look into the October violence. Unsurprisingly, the committee quickly dismissed any and all claims of misbehavior by security forces.[12]

However, a few weeks ago the advisory committee created by Aung San Suu Kyi and headed by Kofi Annan met with Rakhine Buddhists and Rohingya residents from two villages.[13] The Secretary of Kaman National Development Party, Tin Hlaing Win, met with the advisory committee to tell the committee about the Rohingyas losing their rights over the last four years and their wish to return home.[14] The committee told Win that that would submit their demands to the government with their recommendations.[15]

  Over forty Myanmar-based civil society groups issued a statement asking for an independent investigation by the international community to into the human rights abuses by the Tatmadew.[16] Specifically, these groups requests that an investigation  “fully assess the totality of the situation in Rakhine state and provide clear recommendations for the current government to effectively address and prevent further problems in the Rakhine state.”[17] This statement came a day before foreign ministers of the Organization for Islamic Cooperation, an intergovernmental body of 57 member nations, met in Malaysia to discuss the plight of the Rohingya in Rakhine state.[18]

“The Other Side of the Coin: Harakah Al-Yaqin”

Although many Rohingya are peaceful, the October attack was launched by a group of Rohingya that the International Crisis Group has labeled the group as a Muslim insurgency. The group Harakah Al-Yaqin (the Faith Movement) was established after the 2012 riots between Muslims and Buddhists and is currently a group of twenty Rohingya who have experience in modern guerilla warfare and are leading operations in Northern Arakan.[19] A committee of Rohingya emigres based in Mecca oversees Harakah Al-Yaqin.[20] The Harakah Al-Yaqin have obtained fatwas from senior clerics in Saudi Arabia, United Arab Emirates, and Pakistan to enhance its religious legitimacy, backing its cause under Islamic law.[21] The group has spent the last two years training hundreds of local recruits in guerilla warfare and explosives.[22] There are some indications of training and solidarity links with international jihadist organizations, but it is important to distinguish the aims and actions of the Harakah Al-Yaqin – to secure the rights of the Rohingya in Myanmar using insurgency tactics against security forces.[23]

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“Momma is Stepping in”

  As a result of the escalating violence and the actions of the Myanmar government, the United Nations human rights envoy to Myanmar, Yanghee Lee, went on her biannual 12-day visit in January.[24] Lee had discussed with Aung San Suu Kyi the security situation in the northern Rahkine State, the reports of the abuses by the security forces, and the increasing need for humanitarian assistance for people displaced by fighting between the government army and ethnic guerilla groups in war-torn Shan and Kachin states.[25]

Lee also met with Vice President Myint Swe, chairman of the special investigation committee, to question the investigation methods of the committee.[26] This was due to the interim report issued on January 3 that the rape allegations resulted insufficient evidence to take legal action and the accusations of torture, arson, and illegal arrests were still being investigated.[27] Moreover, Lee did not allow the authorities to join her when she visited villages in Maungdaw township to talk to residents.[28] She also met with Rohingya Muslims in adjacent Buthidaung township and visited the local prison there.[29] Yet, reports indicate she was denied access to certain areas.

Lee is to submit a report to the U.N. Human Rights Commission in March.[30]

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“Where Do We Go From Here?”

The situation in Myanmar has left the international community thinking “what now?” Until Yanghee Lee releases her report in March, the advisory committee will continue talks with Rakhine Buddhists and Rohingyas in the Rakhine State. The committee will hopefully foster negotiations between the government and the Rohingya to help them attain such basic rights as citizenship, the right to life, access to government resources, among other rights. Meanwhile, the Rohingya continue to wait and suffer.

Unfortunately, the most complicated part of this situation is the intervention of Islamic countries, which only adds to the tension. These countries do not involve the government of Myanmar government in these conferences. Moreover, neither the UN nor the Myanmar government is addressing such involvement. Yet, the primacy of territorial sovereignty makes interference by other States into Myanmar a precarious situation.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program. 

[1] http://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[2] Id.

[3] Id.

[4] Id.

[5] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[6] Id.

[7] Id.

[8] http://www.businessmirror.com.ph/banned-boats-myanmar-rohingya-fish-rafts-junk/

[9] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[10] Id.

[11] Id.

[12] Id.

[13] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] http://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

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The Plight of the Falun Gong

Christian Kim

“She’s awake, put her back to sleep!” muffles a man with a medical face mask on.  Inmate Zhu slowly wakes up from what feels like an eternity of sleep.  She hears a metallic clang from somewhere distant but not too distant from her.  Her eyes, not adjusted from the amount of sleep, glances over to the source of the sound.  Unable to make out the facial features of the individual, Zhu glances down at her body to see a foggy shade of red.  Zhu doesn’t remember how she got from her prison cell to this bed.  Her arms and legs refuse to listen to her commands to move, yet she feels something warm, dripping down her arms.  “We need these to be fresh!  Knock her out quickly!”  Zhu hears the scuffling of feet from the right as her head jolt violently to the left as the room slowly invites her into a lull of black.

While China’s alleged claims of ownership on the South China Sea continue to dominate international news, one major issue that hasn’t been addressed recently is the organ harvesting of Falun Gong practitioners.  Falun Gong was introduced to the general public in 1992.  It is considered a mix between a disciple and religion which basis most of the practice off of slow-movement meditation exercises that focuses on truthful tenants of compassion and tolerance.  Spurred by a popular growth in the early 90s, the Communist Party of China feared this huge growth spurt.[1]

Article 36 of the Chinese Constitution states that, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.”[2]  On its face, the Chinese constitution seems to promote the freedom of religion, yet the important caveat of “The state protects normal religious activities” allows for the convenient excuse to violate any religion the government deems to be a threat.  Using this, the Falun Gong faith is not considered to be a normal religious activity and is an exception to the constitutional guarantees.   The Chinese government stated that Falun Gong practitioners were “a menace to society – a superstitious, foreign-driven, tightly organized, dangerous group of meditators.”[3]  Hundreds of thousands, if not millions, of Falun Gong practitioners have been arrested and targeted ever since the crackdown.[4]  While China is known for its religious freedom violations against religious minorities, the abuse against Falun Gong practitioners are even more alarming.

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Many of these Falun Gong practitioners are thrown in prison and a few are executed solely because of their beliefs.  Even though Chinese Christians and Uighur Muslims are subject to the same treatment, Falun Gong practitioners are systematically targeted during these executions.  According to various reports, Falun Gong practitioners are executed on a higher percentage than other religious or political prisoners because of their faith.  Falun Gong practitioners abstain from drinking alcohol or smoking and tend to live a healthy lifestyle where meditation and exercises are practiced on a daily basis.  As a result, their organs are in high demand on a domestic and, even more so, on an international basis.  The Chinese government reports a total number of 10,000 legal transplants on an annual basis, but various investigators claim that the estimate is actually between 60,000-100,000 annual organ transplants.[5]  These investigators also allege that the difference of 10,000 to 60,000 (on a low end) are made up primarily of Falun Gong practitioners.

In order to meet the great and expensive demand for fresh organs throughout the world, the Chinese government capitalizes on this industry with the organs from Falun Gong practitioners.  As soon as the demand of an organ arises, these “political” prisoners have their organs harvested shortly thereafter.  Some of the surgeons involved in these organ harvesting operations have even admitted to ripping the requested organs out while the individual was still conscious.[6]

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As the queue for organ transplant requests tends to be quite long outside of China, “organ tourists” try to capitalize on this practice.  Most of the revenue that the Chinese government obtains from this cruel practice comes from the pockets of the organ tourists.  This cannot be allowed on humanitarian grounds.

As a result of this practice, China has breached various international laws and conventions to which China has promised to follow.  One convention is Article 18 of the International Covenant on Civil and Political Rights which states, “”Everyone has the right to freedom of thought, conscience and religion; this right includes freedom […] either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[7]  China is a signatory to this convention, yet they have not yet ratified this convention.  International law differentiates signing a treaty from ratifying a treaty since signing is just an agreement of what text is-not ratification.  Even though this might be true, China is a permanent member of the United Nations Security Council and as a result, has acknowledged its duty to protect the rights that are listed in the treaty.

The international community should come together to hold individuals involved in this practice accountable via the International Criminal Court (ICC).  The ICC has jurisdiction over: crimes against humanity, war crimes, the crime of aggression, and the crime of genocide.  One could argue that the practice of removing organs from Falun Gong practitioners is a form of genocide.  Genocide requires a mens rea and actus reus.  The mens rea here is the intent to destroy in whole or in part, a religious group, the Falun Gong practitioners.  The actus reus would be the systematic executions of these Falun Gong practitioners.  Since the ICC has jurisdictions over the crime of genocide, the Chinese surgeons who perform these operations can be held accountable.  If these individuals are brought to the ICC and given a significant amount of prison time, this could deter any future surgeons in partaking in illegal organ harvesting. However, there are significant procedural hurdles to overcome, since China is not a state party to the Rome Statute.

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Even though there are international coalitions against the practice of organ harvesting from vulnerable groups, there’s only one organ trafficking treaty that involves fourteen European nations.[8]  Several of the world’s biggest countries have released statements condemning the practice but that is not enough.  The United States and other world powers should call on the United Nations to establish a commission to investigate the organ harvesting practice.  Under international scrutiny, this might temporarily stop the Chinese government from allowing forced organ transplants.  Another way that the international community could substantially decrease this practice would be to screen potential “organ tourists” to China.  Many of the “organ tourists” are wealthy individuals who would rather pay large fees to state-approved hospitals in China in order to bypass the legal way of receiving organs in their respective countries.  By screening such tourists, this would put a significant dent on the revenue the Chinese government receives from wealthy “organ tourist” and as a result, substantially decrease this state-wide practice.

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law.  He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice.  He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association.  His interests are East Asian politics, international conflicts, and human rights.  Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years.  He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

[1] http://www.dailynews.com/general-news/20140714/why-china-fears-the-falun-gong

[2] http://en.people.cn/constitution/constitution.html

[3] http://www.newstatesman.com/blogs/the-faith-column/2008/08/falun-gong-party-chinese

[4] http://endorganpillaging.org/falun-dafa-targeted-for-organ-harvesting/

[5] http://www.cnn.com/2016/06/23/asia/china-organ-harvesting/

[6]  http://www.dailymail.co.uk/news/article-3257383/Thousands-religious-prisoners-China-livers-kidneys-corneas-ripped-ALIVE-sell-transplant-tourists-claims-new-film.html

[7] http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx

[8] https://www.thelocal.es/20150326/european-nations-sign-worlds-first-organ-trafficking-treaty