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New Approaches to the Peace Seeking Process in Burma/Myanmar

October 27th, 2020  •  Author:   Federal Law Academy  •  7 minute read
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Executive Summary

Unless the underlying issues surrounding the ethnic nationalities can be resolved properly and effectively, a genuine peace might not be achieved. Highlighting ethnicity—or accentuating ethnic grievances and demanding the equal right to self-determination—is not toxic. Rather, it offers a way to move toward the emergence of a genuine federal democratic union in Burma. In this regard, the misconception of a part of the international community must be addressed.

The major crisis regarding ethnicity is not the result of putting ethnicity at the centre of public life. The stated crisis has primarily arisen due to ignoring the 1947 Pang Long Accord, which has, since its inception, remained legal based on both domestic and international law. The underlying problem lies not with the ethnicity but with the military dictatorship that activates Myanmar chauvinism, fueling the emergence of extreme nationalism. The 2008 Constitution by no means creates a new political system, but the portrayal of this legal framework tries to repackage the existing military dictatorship under the façade of a new, more democratic regime.

Under the 2008 Constitution, the country and its top military leaders are not only prolonging non-international armed conflicts but also ending the process of seeking accountability through international justice mechanisms—the International Court of Justice (ICJ) and the International Criminal Court (ICC).

The crucial issues surrounding citizenship, human rights, democracy, politics, and armed conflicts are primarily attributed to the military dictatorship, even if some conflicts over territorial control or other objectives exist among the ethnic forces. Indeed, the military regime led by Ne Win used the 1974 Constitution—in which citizenship was not a serious issue—to enact the 1982 Citizenship Law, which incorporates racist concepts. Since then, the citizenship problem has become increasingly prevalent. The content of the 1982 Citizenship Law was also reflected in Article 345 of the 2008 Constitution by the military. Hence, it is virtually impossible to cancel or amend the 1982 Citizenship Law as long as the 2008 Constitution continues to exist. The citizenship issue thus arose not from ethnicity but from a fabrication by the military dictatorship.

Historically, the term “Myanmar” indicates a majority nationality, whereas “Burma” embodies the entire country. Similar to other ethnic nationalities—such as Shan, Kachin, Karenni, Karen, Rakhine, Mon, Chin, and so on—Myanmar constitutes one ethnic nationality. In recent seminars, including the fourth session of the Union Peace Conference, Min Aung Hlaing repeatedly urged other nationalities to adopt the “We all are Myanmar” concept, which ultimately represents an unethical motivation for practicing Myanmar chauvinism. It is time now for all Myanmar ethnic nationals to practice equality among all ethnic nationalities, primarily based on collective rights—starting with the way a Myanmar province is formed.

Ethnicity has been manipulated by the successive military regimes—who have used it as a weapon—to incite racial hatred or to implement “divide and rule” policy, which is detrimental to peace. The successive Myanmar military rulers define peace by focusing merely on the absence of fighting by pressuring the Ethnic Resistance Organizations (EROs) to completely surrender. In this paper, a reasonable definition of “peace” is explored.

The ruling regime has produced, and adhered to, the Nationwide Ceasefire Agreement (NCA) as the overarching document that might create a pathway to peace. However, more unfavorable circumstances that impede peace have been occurring for at least five years since the signing of the NCA.

In this paper, a detailed analysis examines the NCA and the Union Agreement (UA) with respect to the minimum standards of the “Rule of Law,” international humanitarian law, human rights laws, and domestic laws. For instance, the “forcible confiscation of land” prohibited in the NCA does not deter government authorities and the Myanmar Army from confiscating lands by invoking the existing laws. Ambiguities in the NCA and the negative results are explicated vis-a-vis the lack of an independent supervision or enforcement mechanism. The legal status of the NCA is therefore also analyzed in this paper. Eventually, we recommend terminating the NCA and all related measures to clear the path forward and to search for a new, comprehensive, and reliable process.

In connection with seeking peace, the interpretation of “federalism” made by C-in-C Min Aung Hlaing is examined. Invoking the provincial sovereignty emanating from, and legitimized by, the Pang Long Accord, we elaborate on why Burma should adopt an ethnic-based federalism. To this end, the experiences of other countries involved in non-international armed conflicts—such as Indonesia, Nepal, Ethiopia, Mozambique, South Africa, the Philippines, Sierra Leone, Columbia, and so on—are presented. Then, we submit our recommendation: rather than ethnic federalism that guarantees the unrestricted right to self-determination up to secession, ethnic-based federalism should be practiced—through which ethnic peoples and their ethnic states/provinces can enjoy “full autonomy.”

Finally, having observed the multifaceted factors that influence, or are connected to, peace by any means, we present new approaches to the peace-seeking process, for the following reasons. To start, in addition to several other countries, such as Mozambique and Columbia, Burma’s contemporary history has illustrated that, if the dialogue between the belligerent parties, albeit necessary, is the sole emphasis, then genuine peace will never be achieved and the resumption of fighting will constantly occur. In other words, if the current process surrounding the NCA proceeds, it would not lead to peace, even if it continues unabated for another decade. During such a period, the desperate depletion of natural resources—negatively affecting both the human and the natural environment—could not be deterred.

In addition, more positive laws that are detrimental to a genuine federal union would have come into existence. The rule of the military dictatorship operating under the 2008 Constitution would have been embedded, thereby resulting in catastrophic circumstances for the entire union.

Ethnic and democratic leaders alike commonly articulate that the “political problems” would be resolved by political means. While this premise is correct and appreciable, it is neither complete nor workable. The term “political means” is, per se, vague and inaccurate; like a boat without a rudder, it would go nowhere on its own. During the previous decade, the political problems have primarily turned into issues surrounding the Rule of Law, as the five following reasons show.

First, the so-called entire peace-seeking process would merely end in the framework of the 2008 Constitution in which blanket impunity is applied for any heinous crimes. Second, some unjust laws that infringe upon individual rights and freedoms have prevailed. Hence, rather than laying a democratic foundation, the rule of the military dictatorship has been embedded. Third, the existing laws, particularly those related to the exploitation and management of land and natural resources, impede the right of self-determination, in terms of the collective rights of the ethnic nationalities and their own states/provinces. Fourth, the EROs, the ethnic political forces, and the ethnic civil society organizations (CSOs) are unable to express their will, collectively or individually, regarding the emergence of a genuine federal union in legal form. Fifth, regarding the international grave crimes allegedly committed by the Myanmar Army leaders, particularly against the Rohingya and other ethnic nationalities, a challenging question has arisen for all ethnic and democratic leaders: would they facilitate the efforts of the international legal communities toward ending impunity in Burma, or would they remain silent, thereby consciously or unconsciously abetting the commission of more heinous crimes by the stated perpetrators?

The two government soldiers who participated in the massacre of Rohingya were transported to the office of the Prosecutor in The Hague in the Netherlands, where the ICC is located, in August 2020. As perpetrators, they confessed to obeying orders provided primarily by Col. Than Htike and Lt. Col. Myo Myint Aung and committing grave crimes to exterminate the Rohingya. Under the international legal doctrine of superior/command responsibility, the aforementioned army officials, are responsible for testifying that who provided the order for the soldiers to commit such grave crimes. The presence of the perpetrator soldiers in The Hague might be the beginning step to ultimately ending impunity. It is time now for all stakeholders participating in the peace-seeking process to facilitate and work with the international legal communities that are striving to seek criminal accountability in Burma.

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