Guest Column

They Call It a Crime: Being Born Non-Bamar in a Conflict Zone

By Stella Naw 8 March 2017

On a winter night on the China-Burma border, I sat cramped in a small house with two dozen people, members of five Kachin families who had recently been displaced by fighting in Mong Ko, also on the border in northern Shan State. The purpose of my trip was to research and document the impact of conflict in the region; I stayed up late into the night listening to the stories of the displaced.

The following day I was taken to meet more members of the Kachin community in other internally displaced people’s (IDP) camps in the surrounding area. Even in the face of tragedy, the individuals I met were accommodating and kind, and invited me to visit them in Mong Ko someday, under better circumstances.

Kachin Baptist Convention Members Arrested

Weeks later, I was informed that two of the men who were staying in the house that night—65-year-old Dumdaw Nawng Lat and 35-year-old Langjaw Gam Seng, a pastor and youth leader, respectively, from the Kachin Baptist Convention (KBC)—had been detained by the Burma Army.

They were charged under Article 17(1) of the Unlawful Association Act, accused of providing support to the Kachin Independence Army (KIA), the armed wing of the Kachin Independence Organization (KIO).

Community members speculated that the two men had been arrested on December 24 because they took a group of Burmese journalists to visit the site of a church recently destroyed by rockets fired from a Burma Army fighter jet. In doing so, they had revealed what the state-run media had tried to cover up in Mong Ko: that the Burma Army had attacked a religious compound.

Just as it has been documented that women from ethnic areas have been targeted by institutionalized sexual violence, with rape used as a weapon of war in conflict zones, Article 17(1) has often been used against male members of ethnic communities as a form of collective punishment. The law states that those who are found to be members or supporters of an organization deemed “unlawful” can be sentenced to a minimum of two years in prison.

Since the Burma Army broke its 17-year ceasefire with the KIA in June 2011, the number of Kachin people charged under 17(1) has been steadily increasing.

A Special Dossier distributed in 2013 by the Asian Human Rights Commission (AHRC) and Asian Legal Resource Centre documented 36 cases in which Article 17(1) was used to charge Kachin men in Kachin State, during 2011 and 2012.

The Kachin Lawyers’ Network reported 50 such cases between 2011 and 2014.

In 2016, more than 50 people were arrested and charged under the statute, including 49 youths—six of whom were women—who were returning from attending an agricultural training in Mai Ja Yang, an education hub for civilians living in the KIO-administered area. In the November 2016 report A Far Cry From Peace, the Kachin Women’s Association Thailand said that 116 Kachin individuals had been arbitrarily detained and tortured by the Burma Army over previous year, suspected of having links to armed groups like the KIA. Given the isolation of the rural northern regions, one could argue that these numbers might, in fact, be even higher, as gathering information in a conflict zone is an ever-difficult task.

Recently, All-Burma Students Democratic Front (ABSDF) member U Min Htay, whose group signed the Nationwide Ceasefire Agreement (NCA) with the government in 2015—an act though to have ended his own organization’s “unlawful” status—was detained for associating with the KIO.

The Unlawful Association Act originated in the India Act XIV of 1908. Drafted by the British, this colonial-era law is now benefitting the Burma Army in its effort to delegitimize and undermine political demands made by ethnic armed organizations by outlawing these entities as “enemies of the state.”

Once charged, a person’s sentence always is accompanied by the possibility of extension, due to a corrupt and nontransparent legal procedure still largely controlled by the institution of the military.

One of the most well known cases is that of Lahpai Gam, a Kachin man detained after being accused of being a KIA major responsible for several bomb blasts. Over a four-year detention period, before he was sentenced to 21 years in prison in 2016, he was subjected to degradation, which included severe beatings and sexual abuse. The elected National League for Democracy (NLD) government was not responsive to calls from rights groups and the United Nations to free him.

After calls from local and international rights organizations demanding the whereabouts of the two men from the KBC, Burma’s President’s Office spokesperson U Zaw Htay responded on January 10 to media that it was the KIA who had taken them, and not the Burma Army. As the calls grew louder, on January 19 the military publicly acknowledged the arrest of the two men, under Article 17(1) of the Unlawful Association Act.

Effects on the Kachin Community

In Kachin and northern Shan states, many of the men targeted by Article 17(1) have resided in rural areas and have had access only to primary school education, according to the AHRC’s Special Dossier report. These men have been displaced multiple times, and often their arrests occur at IDP camps or while performing menial jobs near these camps.

As the sole providers for their families, their detention puts a particular strain on their dependents. Many families of those arrested under 17(1) have exhausted their savings or accumulated debt fighting the charges through multiple court appointments. In their report, the AHRC describes how the wife of one accused man had attended nine court dates in less than two months while living in an IDP camp. She was forced into debt in order to pay for the legal process.

As we speak, the KBC’s Dumdaw Nawng Lat and Langjaw Gam Seng, as well as the 49 youths studying agriculture in Mai Ja Yang, are awaiting access to legal assistance to defend themselves against charges of “unlawful association” with the KIA. We must ensure that they receive reparations for the injustices that they continue to suffer.

Those of us who envision a peaceful Burma must put pressure on the authorities—both the government and Burma Army—to immediately repeal the Unlawful Association Act. The newly created “terrorist” label, which can be assigned through the statute, is a tool to exclude ethnic armed organizations from the country’s peace process, effectively undermining the building of trust with these groups. Furthermore, the Act victimizes individuals based on their ethnicity, gender or religious association—particularly those living in conflict zones. As long as Article 17(1) remains on the books, it will allow Burma Army troops to continue carrying out violations of fundamental human rights in ethnic states, and to do so with impunity.

Stella Naw is an advocate for democratic federalism in Burma, with a special interest in reconciliation and the rights of ethnic and indigenous peoples.

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