Tara Answers: All Your Questions on the Refugee Crisis (part 1 of 3)

One of my favourite things about Facebook is how easy it makes interesting discussions with people who are far away and with unique perspectives.  Unfortunately, one of the most annoying things about Facebook is that I’m often asked the same 15 questions 70x over in a matter of days. 

Instead of trying to answer this repeatedly, I’m going to take a few moments to answer the refugee questions that pop up the most.

1.  Those fleeing Syria are "real" refugees. As are the ones fleeing Afghanistan, Eritrea, Libya, the DRC... 

Refugees become refugees the moment they leave their home country and have a well-founded fear of persecution because of their social group (that includes race, religion, nationality, as well as other "particular social group[s] or political opinion").

They do not lose their status until one of three things happen: (1) they no longer have a well-founded fear of persecution; (2) they return to their country of origin; or (3) they become able and willing to avail themselves of their country’s protection (that means diplomatic protection when living abroad).

Syria: war-torn country where any social-identity is likely to be a reason for targeting. Seriously. Race, religion, ethnicity, gender, sexual orientation, and political affiliation are all reasons for targeting.  And all seem to meet the standard of protected classes for the purpose of refugee law.

Afghanistan is the same. Somalia, the same. Libya, South Sudan, Sudan, CAR, are all in armed conflicts that involve identity issues.  Cameroon, Chad and Nigeria all have problems with Boko Haram, the Islamist extremist group that was responsible for the infamous kidnapping of hundreds of schoolgirls last year. Eritrea is a brutal regime sometimes referred to as the “North Korea of the Red Sea.”

These refugees are real refugees.  They aren’t seeking economic protection – they are seeking an opportunity to live without a well-founded fear of persecution.

2.  No, moving around within Europe does not alter a refugee’s status or protection.

For some reason, a twitter troll last week decided to “mansplain” refugee protection to me, “informing” me that once a refugee enters into Europe they are no longer a refugee and become a migrant. 

And like most men who mansplain, he was wrong and both unable to accept that and unwilling to listen to anyone with a more informed opinion.

Go back up to question 1.  See how refugees lose their status?  Notice that nothing in there includes “moving to another third state?”  That’s because his “explanation” of the difference between a refugee and a migrant is not a real thing.

Once a refugee leaves their home, they remain a refugee, no matter how many countries they go through.

They also aren’t required register as a refugee in the first country they come to. (I’ll address the effect of the Dublin regulations on this below.)  A state which wasn’t the first state in which a refugee comes to may send the refugee back to the first state if (1) the first state is a party to the 1951 Refugee Convention and (2) the refugee won’t face persecution or cruel, inhuman or degrading treatment in the first state.  But, that’s an option on the state, not an obligation on the refugee.

In practice, this means that most EU states cannot (or at least should not) return refugees to Greece because the overcrowded conditions and the delays in receiving protection likely amount to cruel, inhuman or degrading treatment or punishment.  The refugees who break free probably and run on foot need to be processed elsewhere.

That’s why I insist that this is not a migrant crisis, it is a refugee crisis.

3.  No, not anyone can show up and say “I’m a refugee; let me in!”

There’s nothing more frustrating to me than to listen to politicians say “they’re just letting anyone in!” or “we know nothing about these refugees!”

It shows absolutely no knowledge of the process.  It’s also extremely disrespectful to the people who work hard at “refugee status determination,” the process used to ensure that only refugees get refugee protection and the attendant benefits.

There’s a process for determining who is and who is not a refugee. There’s a registration process, which includes fingerprinting, but there’s also other documentation process. For refugees trying to get resettled, there is often an additional process to check their stories.  If your story checks out, you get your status affirmed. If it doesn’t, you’re rejected.

Rejected applicants can be returned to their country of origin.

During periods like this, all Syrians are assumed prima facie to be entitled to refugee status because of the circumstances going on there.  But, not everyone who shows up and says “I’m Syrian” will be accepted as a refugee if there’s a reason to doubt they are, actually, Syrian. 

For example, I don’t speak Arabic and I can only label about 5 cities on a Syrian map.  No matter how often I say I’m Syrian, no one is going to grant me refugee status as a Syrian. 

While my non-Syrianness is rather apparent, those who specialize in this process are good at sorting out people who aren’t as obviously non-Syrian as I am.

My friends who work on refugee status determination are some of the most compassionate and passionate people I know, but they are also some of the toughest on people trying to claim protection they aren’t supposed to have.

Refugee workers know that resources are sparse, and they want to make sure that the resources we do dedicate to refugee protection and resettlement actually go towards those individuals. Not everyone who shows up gets refugee protection; the people who get it are those who actually need it.

4.  Members of ISIS may not be entitled to refugee protection.

Just as the definition of who is a refugee is rather specific, so is the definition of who is not.  It’s not just people, like me, who do not meet the refugee definition, but according to the Convention people who otherwise meet the definition of a refugee can be excluded from protection because of past crimes. In particular, war criminals and people who commit crimes against humanity and genocide are all out.  As are others who have committed “a serious non-political crime” before seeking refuge.  That might not cover every member of ISIS – simply participating in a conflict does not make someone a war criminal – but many members of ISIS will be excluded from refugee protection.

5.  Refugee status determination does not “afford” refugee protection; it affirms it.

Refugees become refugees because they meet the definition of a refugee.  Their status is affirmed when they go through the refugee status determination process.  (See para 28 here.) But they aren’t “illegal migrants” before a status determination process; they are still refugees. 

Sometimes people (including the UNHCR, the agency for refugees) use the word “asylum seeker” for someone whose status has not yet been determined, to recognize that not everyone who applies for refugee status is actually entitled to the protection.

6.  No, there is no “numerical limit” by which EU states can justify turning people away.

Yes, there are a lot of refugees. No, that’s not a reason to stop taking them.  States don’t agree to a certain number of refugees, other than through “resettlement” processes, meaning an agreement to take refugees who have already fled to a state like Turkey and resettle them in a state they haven’t reached, like the US or UK.

But when it comes to refugees who actually show up on your doorstep?  There’s no limit. States that are party to the 1951 Convention are required to let the refugees in.

But what if they stop in Turkey first, you ask?  Can Europe stop them from coming? 

First, Turkish law does not extend refugee protection to non-Europeans, so Syrians fleeing don’t get the full legal protection they should in Turkey.

Second, there’s no obligation on the refugee to seek protection in the first country. It’s assumed they will, but they don’t lose their protection if they fail to do that.

But what about the Dublin Regulation?

That’s an internal EU agreement, and relates to how states within the EU are supposed to process refugees.  It’s not about whether someone is a refugee.

So, yes, the EU has tried to force refugees to file for refugee status in their first EU country, but the Dublin Regulations do not fully absolve EU states from their obligations. The Dublin regulation does not require that refugees seek asylum in the first country of entrance but in the first country where they are processed (i.e., fingerprinted). 

EU states are also prohibited from returning a refugee to a state where they face cruel, inhuman or degrading treatment or punishment.  This means, right now, EU states probably can’t legally force refugees back to places like Greece or Hungary. They need to deal with the refugee situation as it exists.

7.  Whose fault is all this?

Well, let’s start with Assad for plunging his country into violence. Then add ISIS into it.  Then add the rest of the world. This crisis is man-made and a significant amount of responsibility extends to states that have until now refused to assist in refugee resettlement.  I’ll explain that more in my next post, but the reality is that if states like the UK, US, and Australia had previously stepped up to address the growing refugee situation in Lebanon, Jordan and Turkey, we wouldn’t be in this situation.

The only people who aren’t at fault for the crisis: the refugees. They aren’t causing problems; they are experiencing problems and fleeing from them.

The never ending legal battle in the unholy trinity of Chevron, Ecuador and peoples of the Oriente Region: Who is the winner?

This post is more a timeline of events of the court and arbitration proceedings between the three actors mentioned in the title, rather than a commentary on who’s right and who’s wrong. Like other similar cases, this saga also involves volatile local politics, a series of failures by local government, corporate greed, display of various litigation tactics to crush the weaker party, allegations of corruption and a local community whose hopes for a remedy rise and sink with each judgment issued.

To start with a brief background (a detailed background can be found here):

Corporate side of things:

Texaco (at the time Chevron did not own Texaco, but it acquired Texaco in 2001 together with all its rights and liabilities) began oil exploration activities in the Oriente region of Ecuador in 1964. This was done through its locally incorporated subsidiary TexPet which was the operator of a consortium with Gulf Oil. In 1974 the consortium was joined by the Ecuadorian state oil company PetroEcuador. By 1977, majority shareholding in the Consortium was held by PetroEcuador (62.5%).

During the first two decades of Texaco’s operations, environmental regulation in Ecuador was next to non-existent. TexPet operated in this regulatory vacuum and set its own standards. As the operator of the consortium, TexPet was responsible for running the business,operating the Trans-Ecuadorian Pipeline and the oil exploration & extraction. TexPet did this until 1990, even though PetroEcuador held a larger stake in the consortium. TexPet exited Ecuador between 1990 and 1992 transferring complete ownership of the Consortium to PetroEcuador. PetroEcuador and Texaco conducted an audit to assess the operation’s impact on the environment, which ended in 1994 without producing a final report.

The communities in the Oriente region:

At the time TexPet entered the Oriente region, the region was largely untouched. Its population consisted of approximately 20,000 indigenous people from the Cofan, Hauorani, Secoya, Siona, and Quechua tribes. Kimmerling explains the arrival of the settlers (‘colonists’) in the region after the exploration of oil:

“Government policies in the 1970s and 1980s aggressively promoted internal colonization of the Amazon. The government promised land titles and easy credit to settlers who migrated to the region, cleared the rainforest, and planted crops or pasture—even though most soils in the region are not well suited to livestock or mono-crop production. Government officials pledged to “civilize” native peoples and integrate them into the dominant national culture.”

The arrival of settlers and oil production had massive negative impacts on the indigenous population (more on this can be read in Kimmerling’s article). And then came the environmental damage and serious health problems resulting from irresponsible oil exploitation, including birth defects and cancer as a result of exposure to toxic waste (more on this here). The environmental and health impacts adversely affected both the indigenous tribes and the settlers. 

Next, I will only try to outline the key legal developments. There are more lawsuits related to this messy dispute than the ones mentioned below, but I don’t have enough space or energy to mention all of them here. But, here is what happened:

Lawsuit in the US:

A class action suit against Texaco was filed in 1993 in New York, where Texaco was headquartered, by the inhabitants of the Oriente region, including colonists and indigenous communities (“Aguinda Litigation” Aguinda v. Texaco, Inc., No. 93 Civ 7527 S.D.N.Y. Nov. 3 1993). The plaintiffs sought damages for personal injuries suffered as a result of Texaco’s operations in the region. The lawsuit was filed in the US, as Texaco had no longer any assets in Ecuador.

In 1996, a federal district court in NY dismissed the Aguinda claim on grounds of forum non conveniens, international comity, as well as the failure to join indispensable parties (the latter due to potential immunity of Ecuador and PetroEcuador). Throughout the case Texaco sustained the view that the courts of Ecuador provided a fair and adequate alternate forum and that the NY court should dismiss the case on jurisdictional grounds.

In 1998, upon appeal by the Aguinda plaintiffs, a federal appellate court vacated the 1996 ruling and instructed the district court to reconsider the international comity and forum non conveniens arguments in light of the “current circumstances,” referring to Ecuador’s new position in favour of maintaining the litigation in the United States.

The Court held that dismissal on forum non conveniens and international comity grounds were clearly erroneous unless there was also a condition requiring Texaco to waive statute of limitations defences and submit to the jurisdiction of Ecuador.

In 2001, the lower court granted Texaco’s motion to dismiss on forum non conveniens grounds on the condition that Texaco agreed to submit to personal jurisdiction in Ecuador, waive statute of limitation defences to allow plaintiffs to file a lawsuit in Ecuador. The company also had to agree to allowing the plaintiffs to use discovery obtained in the U.S.

On appeal, the higher court agreed in 2002, repeating the district court’s conclusion and agreeing with a conditional dismissal.

The remediation agreement:

Amid the litigation in the US, Texaco signed a remediation agreement with the government of Ecuador in 1995 and received a final release from liability for environmental damage in 1998. Chevron claims on its website that “The $40 million remediation operation was certified by all agencies of the Ecuadorian government responsible for oversight, and TexPet received a complete release from Ecuador's national, provincial and municipal governments.”

The quality of the remediation work is highly debated.

Ecuador lawsuit

SO, up to this point the community sought damages against Chevron (back then Texaco) in the US, but was unsuccessful due to jurisdictional barriers. Then they filed a lawsuit in Ecuador, which was an idea supported by Texaco during the proceedings in the US.

In 2003, 46 of the Aguinda plaintiffs filed a lawsuit against Chevron Texaco and TexPet in the Lago Agrio courts in Ecuador (‘Lago Agrio litigation’). 

The plaintiffs sought a full remediation of the environment in the concession area and for costs of health supervision and social redress, based on Ecuadorian law and the same facts as the original Aguinda complaint. They additionally alleged fraud in the Texaco’s conduct of the voluntary remediation and the release for liability with the Ecuadorian government.

Chevron raised various defences, ranging from the remediation agreement concluded with the government to PetroEcuador’s involvement as a majority consortium partner. Furthermore, Chevron alleged denial of justice and due process by Ecuadorian courts and fraud in the part of the Plaintiff’s lawyers and experts involved in the case.

In February 2011, the Ecuadorian court issued an $18 billion judgment in favour of the Lago Agrio Plaintiffs which Chevron immediately appealed. In January 2012, the appeals court in Ecuador confirmed the decision, but halved the damages to $9.5 billion. 

As Chevron has no assets in Ecuador, plaintiffs have been trying to enforce the final decision in jurisdictions outside Ecuador (Canada, Argentina and Brazil).

The AAA arbitration saga between 2004-2009

In 2004, Chevron and TexPet filed an arbitration claim against the Republic of Ecuador (under the American Arbitration Association arbitration rules). 

In this arbitration, Chevron claimed that Ecuador breached a 1965 Joint Operation Agreement by allowing the Lago Agrio Litigation to proceed and that it should indemnify Chevron for all defence costs and liability it had or could incur in the litigation.

Ecuador subsequently filed a motion in NY courts for stay of the arbitration. In July 2009, the court decided for a permanent stay of the arbitration proceedings.

Investment Treaty Arbitration between Ecuador and Chevron

In September 2009, Chevron submitted an arbitration claim against Ecuador under the US-Ecuador Bilateral Investment Treaty and the UNCITRAL Arbitration Rules. Chevron claimed that:

“In breach of the 1995 and 1998 agreements and the Treaty, Ecuador today is colluding with a group of Ecuadorian plaintiffs and U.S. contingency fee lawyers who sued Chevron in 2003 in the courts of Ecuador seeking damages and other remedies for impacts that they allege were caused by the Consortium’s operations. By its actions and inactions, Ecuador improperly seeks to shift to Chevron Ecuador’s own contractual liability for any remaining environmental impacts from the pre-1992 activities of the Consortium. Similarly, in further breach of the settlement and release agreements and the Treaty, Ecuador improperly seeks to shift Chevron the responsibility for impact caused by PetroEcuador’s own oil operations since 1992, as well as impact caused by government-sanctioned colonization and agricultural and industrial exploitation of the Amazonian region.”

Chevron further contended that:

“Ecuador has pursued a coordinated strategy with the Lago Agrio plaintiffs that involves Ecuador’s various organs of State…Ecuador’s judicial branch has conducted the Lago Agrio Litigation in total disregard of Ecuadorian law, international standards of fairness, and Chevron’s basic due process and natural justice rights, and in apparent coordination with the executive branch and the Lago Agrio plaintiffs.”

Chevron’s demand from the tribunal was described as amounting to a relief from paying the Lago Agrio judgment.

In February 2011, the arbitration tribunal issued an order for interim measures. The tribunal ordered Ecuador to take all measures at its disposal to “to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment against the First Claimant in the Lago Agrio Case.” Further orders similar to this one were issued throughout the proceedings.

In March 2011, a US circuit court dismissed an application by Ecuador and several Ecuadorian citizens requesting the stay of this arbitration insofar as it relates to the Lago Agrio litigation.

The investment treaty arbitration proceedings 2013-present

A number of awards were issued by the UNCITRAL arbitration tribunal (see here for all publicly available documents for this case). The tribunal is dealing with the dispute in two tracks. The first deals with whether the 1995 Remediation Agreement and the 1998 Release bars the Lago Agrio claims, which were made by third parties. The tribunal has disagreed with Chevron on this point in a recent decision, stating that the government releases did not prevent third party individuals from bringing individual claims against Chevron.

The second track of the arbitration, which is yet to be decided, will focus on whether Chevron was denied justice in Ecuadorian courts in the Lago Agrio case. This will boil down to determining whether there was corruption involved.

The RICO Lawsuit

In February 2011, Chevron filed a RICO (Racketeer Influenced and Corrupt Organizations Act) suit in New York against the Lago Agrio plaintiffs, their attorneys and a third party environmental consulting firm. Chevron alleged that the Lago Agrio litigation was fraudulent and a conspiracy to commit extortion against Chevron.

In March 2014, the US court found that the Lago Agrio judgment was obtained by corrupt means. (To be honest, life is too short to read through the whole judgment which is 485 pages long!) But, an important point worth mentioning is that the court recognised (in pp.12-13) the irony of Texaco’s claim in the Aguinda litgation that “Ecuador would be an adequate alternative forum because it had an independent judiciary that provided fair trials” and the Aguinda plaintiffs’ claim that Ecuador was not the appropriate venue as its judiciary was weak and corrupt. This decision was appealed by the defendants and the case is currently pending before the appellate court.

The ICC Complaint

In October 2014, the representatives of the Lago Agrio plaintiffs filed a complaint with the International Criminal Court against the CEO of Chevron (and any other corporate officer). In March 2015, the prosecutor informed the complainants that they would not proceed with the complaint, as the complaint was outside the temporal and subject matter jurisdiction of the ICC. As it was clear from the outset that the case had very little chance to proceed, one commentator viewed it as “a political or PR document”.

Enforcement of the Lago Agrio Judgment

The Lago Agrio Plaintiffs have been trying to enforce the multi-billion dollar judgment since 2012 in various jurisdictions, but without any success so far. It is a huge victory to obtain a final court decision for $9 billion damages, but without the means to enforce the judgment (unless voluntarily paid), it is pretty much just a symbolic victory.

Jurisdictions where attempts have been made include Argentina, Brazil, Colombia and Canada. In November 2012, an Argentinean court issued a freezing order on Chevron’s assets in Argentina to enforce the Ecuadorian judgment, which was confirmed by the Argentine appellate court. However, no actual enforcement has taken place so far.

As for the Brazilian enforcement attempt, it was reported in May 2015 that “The Brazilian Federal Prosecution Service has recommended to the Brazilian court that recognition be denied.” This is the latest I could find on Brazil.

A more  clear (at least for me, because the only second language I can speak is English) enforcement battle is happening in Canada. The latest in this saga is a decision from the Supreme Court of Canada (SCC) issued last week. 

The SCC confirmed the jurisdiction of Ontario courts to hear the enforcement claim against Chevron and Chevron Canada, with the caveat that “the establishment of jurisdiction does not mean that the plaintiffs will necessarily succeed in having the Ecuadorian judgment recognized and enforced against Chevron Canada.” 

This was a small victory for the Lago Agrio plaintiffs, but a Chevron advocate has already argued that the plaintiffs should not get too excited, as there is still a long legal battle ahead to actually enforce the judgment in Canada.

What next?

We are yet to see whether the Lago Agrio plaintiffs will be able to enforce the Ecuadorian judgment in Canada or in any other jurisdiction. We are also yet to see the arbitral tribunal’s decision on whether Ecuador violated the US-Ecuador BIT. This saga is likely to continue at least another five years, if we consider the possibility of challenges to any arbitral award by the tribunal at the seat of arbitration or in the country of enforcement. The same grim scenario of protracted litigation is applicable to the actual enforcement proceedings in Canada. 

So far, the only winners in this mess are the lawyers. The series of legal proceedings outlined above take the concept of complex disputes to a whole new level. This can probably be considered a lawyer’s paradise (maybe not for the lawyers who were accused of fraud).

A series of disputes ongoing for over 20 years with no end in sight and stretching through several jurisdictions (including domestic and international venues) is certainly financially lucrative for the lawyers.

But besides that, they were able to test the limits of the law both in terms of substance and procedure. It comes as no surprise that Chevron employed 39 law firms for this legal saga, according to a report from 2012.

In the meantime, members of the local community keep on waiting for a remedy for the damage they sustained. 

What I Learned from 9/11

I'm finalizing an article, so I don't have time today to write long pieces about the state of the world that require more thought than feeling.  I do, however, have time for a post that requires principally feeling.

9/11 Was a Day of Fear and Strength

I was in Japan on 9/11.  It was shortly before 9pm when my friend Karen called to say there was a fire at the World Trade Centre in New York and I should turn on the news.  I hung up and called Joe in the next town over.

When the second plane hit, we didn't understand it was intentional.

The news station was still reporting the first plane as a fire.  The second plane didn't make sense to us.  At first, I thought it was a news plane that had gotten too close in following the fire.

It took a few minutes to digest that it wasn't an accident.  The reports were coming fast and were using words we hadn't experienced in every day Japanese life.  Following the news -- figuring out what was happening - was leaving us confused.

Then the news flipped to ABC in New York.  I watched the news for almost 48 hours straight until the ABC stream was cut off abruptly one afternoon.  That night, I went to dinner with the other foreigners from my county.  I don't remember eating at any other point during that time.

Karen's parents lived in NY and often worked in DC.  My parents live in Cleveland, Ohio, and at some point ABC told us there was a rogue plane over Cleveland.  We know now that it was United flight 93, which would be grounded by passengers in Stonycreek, Pennsylvania.

We both spent the night trying to get an outside line to make contact with our parents, but getting an international line proved impossible.  We could talk to each other, but not to anyone back home. 

When the airplanes were grounded, we realised that if anything had happened to our families, we were stuck.  That reality did not play out for us, but in the days that followed we watched the grief of families stuck in Tokyo who wouldn't get to their injured family members in the US.

When I got ahold of my father - around 2am - he was stuck at work, helping the public transport authority ensure everyone could evacuate downtown Cleveland.  He would be staying in downtown for the remainder of the day, he said.  My pleas for him to leave were pointless.

I don't know when I slept that day.  I know I must have at some point.  It was probably after my friend Jaime called from NY to say she was okay.

In the years to come, people would tell me I was lucky to be out of the country that day.  They are wrong.

There was nowhere in the world where I could have felt safe that day.  I don't know if anyone did.

And yet, I also saw firemen and police men rush in where others were rushing out.  I saw average Americans donate blood in a show of human solidarity.

I saw the Iranian government issue the first condemnation against the terror attacks.  I saw various world leaders quickly follow suit.

I watched as people went to American embassies around the world to show solidarity. I watched as the international community issued a universal commitment to stop terrorism.

On 9/11, I learned there was a depth to fear I could not have possibly imagined before.

But I also learned that strength comes in a variety of forms, from rushing through a burning building to staying to do one's job when it is needed to standing in a blood line to do the only thing you could to help those who were hurting.

I didn't want to use the standard pics of that day.
Here's one of people giving blood, from
Sandi Bachom via Huffington Post:
http://www.huffingtonpost.com/sandi-bachom/the-volleys-of-chelsea-pi_b_3891105.html

Fear is Healthy if it is a Temporary Reality, Not a Permanent Excuse

Both our fight and flight modes were operational that day.

That is healthy in a moment like that.  It is necessary.  It means we are individually and collectively human.

And yet... in the days and years that followed, some wanted us to stay fixed in that moment of fear.

Fear -- like much else in life -- can either unite us or divide us. But the longer we are asked to live in a state of fear, the more damage is done to our psyche.

Have you every walked through a dark woods at night and had images from the Blair Witch Project play in your head?  Each twig that snaps seems like a threat.  You suddenly become ultra-aware of the breezes around you, the smell of the woods.

Everything is a threat.

Imagine doing that for years.

That was what we were asked to do as a country and a global community.

Fear was used to feed the agendas of those in power.

This is clear from Tom Ridge's admission that he was pressured to alter the terror alerts ahead of the 2004 election in an effort to give Bush an advantage.

Opposition to torture was met with calls to "Remember 9/11!" - as if we could have forgotten that day.

We were taught to live in perpetual fear, rather than how to live with fear without letting it overwhelm us.

That call to fear remains today -- it underpins discussions on drone strikes and humanitarian law, on the still-open Guantanamo Bay and US responsibility for remedies and reparations to those we tortured, and on calls for us to shirk our responsibility towards refugees in order to ensure national security.

We Need that Kind of Strength & Humanity -- the Kind Shown on 9/11 -- Without Another 9/11

Living in a state of perpetual fear can be deadly.  Living in a place of humanity can be a demonstration of strength.

I've never seen an outpouring of humanity like I did that day.  I doubt I ever will again.

And that's sad because it shouldn't take unprecedented evil to make us deeply good.

I won't do that pathetic political thing where I plead with you to remember 9/11 and side with me on political issues.

You don't need to.

You don't need to agree with me on issues of refugees or torture or who should be the next President of the United States.

I would suggest, though, that we would all do better to remember not the fear of 9/11 but our humanity that day.  Our resolve to do what we could to alleviate the suffering of others.

That's what I take from 9/11, because I know we cannot always anticipate or mitigate the evil others will commit.  But I also know that we should always display our own goodness, our own humanity. 

Burmese Election 2015 - How Free and Fair?

This is the first in a three-part series on Burma. 

On 7 November 2010 I was watching the first Burmese general election since 1990 from the Thai border town of Mae Sot. I was there to work as a volunteer with Burmese migrant women, mainly teaching English, political science and human rights.

However, for one week during the election I assisted the organization Burma Partnership with electoral monitoring and the development of an election tracker, mapping reports of various incidents such as vote buying, voter intimidation, violence, etc., mainly on the part of the Union Solidarity Development Party (USDP), the junta-backed political party. International election monitors had been barred from the country, but we received phone calls and eye witness accounts from inside Burma.

At the end of our project our map of Burma was full of pins dropped to indicate various abuses during the election. One voter in Shan State reported that:

“Although we don’t like the USDP, all the villagers including me voted for the USDP since we were ordered by the town authorities to vote for the USDP. We were afraid while we were voting since the authorities were watching on us at the polling station, to see if we were voting for them or not.”

It came as no surprise that the junta’s USDP won the election. The National League of Democracy (NDL) led by Aung San Suu Kyi, decided not to participate and few other parties had the experience or enough time to prepare to lead successful campaigns. This combined with the high levels of irregularities during the election.

What was surprising, however, was the international community’s reaction. While many expressed concern over irregularities, the response was widely positive – Burma seemed to be lauded for even holding a general election at all. The government received even more praise when they released Aung San Suu Kyi from house arrest on 13 November (Aung San Suu Kyi spent almost 15 years in house arrest between 1988 and 2010).

In the months following the election prime ministers and business leaders from all over the world visited Burma in a bid to gain influence, and receive profitable contracts no doubt, over the ‘democratization’ of the new and open Burma. Even the well-respected International Crisis Group jumped on the over-enthusiastic bandwagon, claiming that ‘rapid and significant change has taken place in Myanmar in recent months’ and that now was ‘not the time for the West to remain disengaged and sceptical.’ The Burmese government went from being an international pariah to acceptable partner in the blink of an eye.

For us in the human rights advocacy community all this elation and celebration of a new and democratic Burma seemed very premature. Armed conflict raged, and still does, in the country and it was difficult to imagine how a country that had been a dictatorship since 1962 could become democratic that fast. Indeed, even Aung San Suu Kyi warned against the ‘reckless optimism’ about Burma’s reforms and instead encouraged a healthy dose of ‘cautious optimism’.

Now were are here, five years later, and facing another general election in just about two months, on 8 November, which the government has promised will be free and fair. While I don’t want to be a pessimist, several things make the context of these elections problematic already.

First of all, even if the election itself this time is free and fair, the Burmese constitution poses some serious problems. The constitution reserves 25% of the seats of both the lower and the upper house of Burma’s parliament for the military. These representatives will be handpicked by the army and will thus represent and be accountable to the army, not the Burmese people (article 109 and 141). The constitution also bars anyone whose spouse or children are citizens of a foreign country from becoming president (article 59(f)). It doesn’t take much to see who the drafters had in mind here…

Second, the armed conflict in Burma, which has been going on for over forty years, is still going on between government forces (the infamous Tatmadaw) and various ethnic groups. The government has for years tried to broker a peace deal, but ethnic armed groups have continued to doubts the government’s genuineness as the government for a long time insisted on signing separate deals with each ethnic group rather than one comprehensive peace deal – something seen as the old ‘divide and rule’ tactic.

Currently, negotiations are taking place between the government and fifteen different groups (six armed groups not recognized by the government have been excluded). A tentative agreement to sign a ceasefire next month was reached on 9 September. However, as previous such agreements have fallen through we’ll just have to wait and see and hope for the best. Meanwhile the Tatmadaw continues to fight ethnic groups, primarily in Shan State and Kachin States.

Third, the situation of the Rohingya brings serious doubts to the legitimacy of the upcoming election. Burma is home of over one million Rohingya, a mainly Muslim ethnic group who lives mainly in Rakhine/Arakan state in western Burma on the border with Bangladesh. The Rohingya are one of the most persecuted people in the world according to the UN and are not even recognized in Burma by their own name. Instead they are often called ‘Bengali’ in an effort to deny their historical existence in Burma and their claim to citizenship, despite the fact that the Rohingya have lived on the territory of what is now Burma for centuries. In fact, the government stripped the Rohingya of citizenship rights in 1982, leaving them stateless. Since anti-Rohingya violence (which later turned into wide spread anti-Muslim violence) broke out in 2010, hundreds of thousands have been displaced and are living in squalor in camps – not allowed to leave, for their ‘own protection’ according to the government.

Before the election in 2010 the government had issued temporary ‘white card’ identity documents to some 700,000 Rohingya, allowing them to take part in the vote. However, despite promises that card holders would also be allowed to vote in this election, the when the government published the voting lists in Rakhine/Arakan state, no Rohinya were on these lists. The ruling USDP party even barred its own Rohingya MP Shwe Maung from running in the upcoming election, due to the fact that his parents were not Burmese citizens at the time of his birth.

Many more issues will influence the legitimacy and outcome of the elections. However, the issues mentioned above already bring into serious question whether this election could ever be seen as free and fair.

It is expected that the NLD will do very well, and probably win a majority of the votes in parliament, mostly due to the popularity of Aung San Suu Kyi. However, the NLD has recently come under fire for excluding Muslims from its list of candidates, after pressure from nationalist Buddhist groups. The party also chose only one out of 17 candidates from the respected ’88 Generation’, including the much loved Ko Ko Gyi who was one of the movement’s leaders during the 1988 protests, something that produced widespread consternation and criticism. These actions may make the NLD more mainstream and may be a move to attract nationalist voters in a bid to secure an election win. Nevertheless, it puts into serious question the leadership of Aung San Suu Kyi and the other members of the central committee. It also puts into question the NLD’s ability to stand up for human rights and to lead the country into a new and more democratic future.

In a video posted a few days ago, Aung San Suu Kyi urged the international community to observe ‘what happens before the elections, during the elections, and crucially after the elections’. I just hope that this time, any such monitoring will be free of the rose-tinted glasses worn by the international community five years ago. What happens after the election remains to be seen.