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"As long as human rights are violated, there can be no foundation for peace. How can peace grow where speaking the truth is itself a crime?"

Suu Kyi and American Convicted by Burmese Court

August 15, 2009

Opposition Leader Sentenced to Additional 18 Months
Jared Genser
Attorney for Aung San Suu Kyi
The Washington Post
August 11, 2009

Burmese opposition leader Aung San Suu Kyi was
sentenced Tuesday to an additional 18 months
under house arrest on charges of breaching the
terms of her previous incarceration by harboring
an American tourist who swam across a lake
bordering her villa and entered her heavily guarded property uninvited.

Jared Genser, attorney for Suu Kyi, was online
Tuesday, Aug. 11, at 1:30 p.m. ET to discuss the
case and the widespread international reaction
from Great Britain, France, the European community, and the U.S.

Arlington, Va.: Short of an invasion (which we
know isn't going to happen) what can really be
done from the outside? We have tried sanctions.
We have tried all sorts of condemnations. Are the
Chinese the biggest key/obstacle? Do the people
inside Burma need to become so totally desperate
that millions of them rise up? It all seems to
hopeless. I saw Burma VJ the other night at then
the Current TV report Laura Ling did on Burma
over the weekend. It's so sad. Will nothing
happen until Than Shwe and the rest die off? Is
the next generation of dictators equally bad? Any
chance of a coup from the lower ranks of the military?

Jared Genser: Bertil Linter, a Swedish journalist
and lifelong Burma watcher and reporter recently
published an op-ed in the Wall Street Journal
making that exact point. At the end of the day,
the country is comprised of 47 million Burmese
people who need to shape their own destiny. That
said, Aung San Suu Kyi's political party and its
ethnic group allies won 80%+ of the seats in the
parliament in 1990 and have never been allowed to
take office. Should the international community
do nothing? We know what happens if we do
nothing. I believe that we do have an obligation
to stand in solidarity with the Burmese people
who have asked for the support of the
international community. There are no clear and
easy answers. Engagement has been tried for 20
years, with 40+ visits of UN envoys, rapporteurs,
and the Secretary-General. That has yielded
little progress. Sanctions have been tried, but
frankly only in a serious way since 2003,
primarily by the US, but since 2007 more
seriously by the EU, Canada, and Australia. But
the bulk of trade comes from China, India, and
ASEAN member states. As for your other questions,
let me try to come back to them later. You asked
a whole long list of difficult ones!

Arlington, Va.: Doesn't keeping The Lady locked
up just increase her power and moral authority? I
wonder why, if they fear her so much, the junta allows her to live at all.

Jared Genser: I believe she is deeply feared by
the junta, despite being a petite 5' tall and
some 100 pounds, because she and her allies won
more than 80 percent of the seats in the
parliament in the 1990 elections, when the junta
actually believed they would win in a landslide.
Adding to her appeal is that her father is
rightly viewed in Burma as the key actor who
secured the country's freedom from British
colonial rule, and was sadly assassinated right
before Burma's independence in 1948. I agree that
keeping her locked up as the world's only
imprisoned Nobel Peace Prize Laureate only
increases curiosity about her, her story, her
situation, and that of her people. On the other
hand, when she has been out of house arrest and
been able to travel, tens of thousands of people
have turned out at numerous stops merely to get a
glimpse of her. This kind of mass movement that
she can swiftly generate is what they fear most
and the generals have watched the fall of the
former Soviet satellites, color revolutions, etc.
As for killing her, they actually tried that in
2003 -- with a government-sponsored mob in
Depayin, which resulted in the murder of 70 of
her supporters in her convey. She escaped with
minor injuries. I don't think they've viewed
killing her directly as a real option given the
outcry that would result and the fact that their
allies in the UN Security Council would likely
have to stand aside in light of that outrage to
allow serious action to be taken against them.

Fairfax, Va.: How much influence will the U.N.
judgments wield in the possibility of her release?

Jared Genser: Well, on the one hand, you might
think not much at all. Indeed, there is no
enforcement mechanism other than moral suasion,
combined with political and public relations
advocacy. On the other hand, despite being
impervious in some ways to international
pressure, the junta, and Gen. Than Shwe in
particular, severely dislikes international
criticism of its actions. Interestingly, the
junta has repeatedly responded to our UN
submissions (doing so is optional but encouraged)
and has publicly defended itself in the
government-published New Light of Myanmar. Our
most recent UN judgment, which we released in
March 2009, was actually pretty extraordinary,
because it found that the junta was violating not
only international law, but its own law too. It
concluded that the junta could only detain her
for up to five years under house arrest and that
they had illegally detained her for a sixth year.
The junta strenuously objected to this UN
decision as interference in their internal
affairs. But this was likely, at least in part,
what prompted its need to find an alternative
rationale (albeit tenuous) for continuing to
detain her. Even if the American swimmer John
Yettaw hadn't shown up on the scene, I believe
there would have been some other pretextual
excuse for finding a reason to keep her in
custody, at least through the junta's 2010
scheduled elections that are designed to solidify their military rule.


Washington, D.C.: "Should the international community do nothing?"

Why not, it's the tradition. North Korea, Iran,
Congo, Zimbabwe, Rwanda, Kurdistan, Tibet, etc.

It goes on and on. As long as China has a veto on
the U.N. Security Council it isn't going to happen.

Jared Genser: Well, that is one approach. Having
heard first-hand stories of the suffering of
countless Burmese people, I personally have felt
compelled to do what I can. You are correct that
the UN Security Council is not exactly a bastion
of vigorous action on a number of complex
conflicts in the world. But at the same time, it
is worth noting that all members of the P5
(China, Russia, US, UK, and France), who all
retain a veto right, are regularly reassessing
their strategic interests in the Security Council
and also engaged in horse-trading on issues of
greatest concern to them. Thus, we've seen that
China, which initially strongly objected to even
having Burma placed on the Security Council
agenda, ultimately went along with two
Presidential statements and a press statement
from the Security Council which, among other
things, called for the release of Suu Kyi and
other political prisoners, urged open access for
humanitarian aid, and urged meaningful dialogue
leading to national reconciliation in the
country. Has that solved the problem. Of course
not. But the fact that China went from objecting
to it being on the agenda at all to begrudgingly
supporting these kinds of actions suggest their
calculus can change -- such as what happened
after the junta gunned down a dozen protestors in
2007 after the monks and activists conducted
democratic marches. China even supported a
referral of Sudan for investigation to the
International Criminal Court despite many arguing
for years it would never allow it to happen.
Again, these are all small incremental steps. But
unless the junta collapses overnight, that is
about the best we have to work with.

Washington, D.C.: How did you become her attorney?

Jared Genser: In 2005, I led a team producing a
report entitled "Threat to the Peace: A Call for
the UN Security Council to Act in Burma" for
Vaclav Havel and Desmond Tutu. We then worked
with them in lobbying to get Burma on the UN
Security Council agenda for the first time, which
happened in 2006. I had actually first gotten
involved in Burma back in 2000, when I helped
secure the release of a British national James
Mawdsley who received a 17 year prison sentence
in the country for handing out pro-democracy
leaflets. I suppose that with the increasing
attention that I got for these activities led to
my coming to the notice of her family. And a
member of her family asked me in 2006 to represent her.

Arlington, Va.: How close do you think the junta
was to collapse during the 2007 protests? They
seemed to really be floundering for many days
while the protests built. I think everyone
expected a crackdown sooner than it happened. In
the end they showed little restraint when killing
and imprisoning the monks. There were reports at
the time that Than Shwe fled or that the lower
ranks of the military were ready to mutiny, but I
don't know if that was just propaganda from the
opposition or if that was anywhere close to happening.

Jared Genser: It is personally quite hard for me
to say because I don't speak Burmese and the
information that I got, like yours, has been all
second-hand. That said, as the saying goes, the
greatest wounds are self-inflicted. The massive
increase (5-fold) in fuel prices imposed without
warning by the junta (including gas, kerosine,
etc) hit every Burmese person with limited means
and made cooking their daily rice inordinately
expensive. Given the people of the country also
support the monks and temples and especially
because those who were poorer kept more of their
own money for basic needs, the support for the
monks swiftly dried up. When combining the
suffering of the starving people with the broad
impact on the overall population, the monks felt
compelled to stand up and say that the actions of
the junta conflicted with their alleged Buddhist
values. There is no doubt the junta was deeply
afraid of seeing their own color revolution
develop and once the protests grew beyond what
they judged was an acceptable size, they felt
compelled to violently crack down. I, too, heard
reports of many of the soldiers refusing to shoot
the monks and differences among generals about
how vicious they were willing to be with the
Burmese people. But at the end of the day, the
soldiers were more afraid of the generals than
the common people so again, sadly, the peaceful
uprising was snuffed out by violence.

Annandale, Va.: Who is propping up the junta?

Jared Genser: Interestingly, Burma is rich in
natural resources -- especially oil/gas, timber,
and gemstones. The junta has numerous state-owned
enterprises that manage investments in these
areas. Currently the biggest investors in the
country are China, India, Thailand, Singapore,
and several other ASEAN countries. Despite having
some $5B in cash reserves currently hidden on the
books (see the fascinating op-ed by Australian
economist Sean Turnell in the Wall Street Journal
from a week or two ago) and some $2-3B a year in
oil/gas revenues, the country remains one of the
most impoverished in SE Asia. This is because the
junta spends (roughly) 25 percent of its GDP on
the military and some 2 percent on health and
education combined. Ironically, the junta pleads
poverty with the international community and has
been asking for $10B in aid after Cyclone Nargis.
Yet few in the international community seem to
demand that the junta begin to spend its own
resources to promote the country's development.
Ultimately, what enables the junta to remain in
power are the weapons sold to it by China, but
there are plenty of companies and countries
prepared to invest in Burma, despite its
appearance right at the bottom (something like
189 out of 190 on Transparency International's list of most corrupt countries).


Washington, D.C.: Is she angry at the American
who imposed on her and added 18 months to her
sentence? Or was it inevitable that something
would come up that the government would use to
keep her in prison. If he didn't show up,
certainly they would have found another way to keep her detained, no?

Jared Genser: My understanding is that she is not
angry but rather understands full well that her
detention has never had anything to do with
whatever the most recent set of charges were, but
rather are because of her popularity with the
people and the 1990 election results.

Arlington, Va.: Are there any other opposition
leaders on the horizon inside Burma? Obviously
she can't live forever. We know the election will
be rigged next year but is there anyone who will
run? Or will everyone just boycott?

Jared Genser: This is an ongoing challenge for
the Burmese democracy movement. It is impossible
to put ourselves in the shoes of those Burmese
democrats inside the country. There are 2,100+
political prisoners in the country, which
comprise the key leadership (and numerous levels
down) of the NLD and ethnic groups. The
imprisoned include elected MPs from the 1990
elections, journalists, political activists, the
so-called '88 student generation which led the
1988 peaceful uprising, and countless others.
Under such circumstances, it is no wonder that
maintaining, developing, and expanding support
for the democracy movement is virtually
impossible inside the country. Over the next few
days a number of the Burmese umbrella groups are
meeting in Jakarta to issue a unity plan for how
to deal with the junta. The main umbrella group,
the National Coalition of the Union of Burma is
led by someone named Maung Maung. And the formal
government-in-exile, which is comprised of the
1990 elected MPs, is led by Dr. Sein Win, who
also happens to be Aung San Suu Kyi's first
cousin. Ultimately the Burmese democracy movement
inside the country has struggled to survive, and
while there is an active, diverse, and engaged
Diaspora community of Burmese living in exile,
achieving unity requires substantial ongoing effort.

As for the elections, right now, under the
Constitution that was "adopted" in the flawed
referendum and without input from the democracy
movement, there is no real prospect for change.
This is because the Constitution provides for a
military veto over decisions of the Executive,
Legislative, and Judicial Branches, excludes Aung
San Suu Kyi and any former political prisoners
(felons) from running for office, and precludes
anyone who hasn't lived in the country for the
last 20 years (e.g., was in exile) from running
for office. The junta automatically gets 25
percent of the seats in the parliament and it
takes an 80 percent vote to amend the
Constitution. In other words, even if the NLD and
their allies compete and win every available
seat, they still will have no control over the
government. Furthermore, the Constitution allows
for the Executive to limit or even criminalize
certain topics if raised in the Parliament,
rendering the idea of running and speaking out an unpleasant prospect.

The only hope really is for the Constitution to
be substantially amended. If that happens, the
Burmese democracy movement has expressed a
willingness to participate in a free and fair election.

Harrisburg. Pa.: Is there any legal appeals
process? Are you still continuing to serve as the
attorney? What are your plans from this point on?

Jared Genser: Her domestic lawyers are looking at
possible appeals. I'm not sure it is technically
possible because the sentence was commuted. But
it is irrelevant anyways. The judiciary isn't
independent from the junta and so like the trial
itself, the conclusion of an appeal is sadly pre-ordained.

Yes, I continue to serve as her international
counsel. We filed a petition today before the UN
Working Group on Arbitrary Detention and will
also continue political and public relations
advocacy on her behalf until she is free.

Jared Genser: Thanks everyone for participating
in this chat! If you want to learn more or follow
our activities, you can check out Freedom Now's
web site at Thanks for your interest!
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