SUPPORT THE BURMA ACT
The Burma Unified through Rigorous Military Accountability Act (BURMA Act) of 2021 was introduced in the U.S. Senate (S. 2937) and House (H.R. 5497) on October 5th. The bill looks to set the parameters of U.S. policy towards Burma in the wake of the February 1st coup and support a path to genuine democracy, peace, and national reconciliation.
Burma’s military, the Tatmadaw, has a long track record of committing human rights atrocities, escalating humanitarian crises, and using widespread and systematic force in an effort to control the country. On February 1, Burma’s military overthrew the elected civilian government and installed its Commander-in-Chief as leader of the newly formed State Administration Council. Since the coup, the people of Burma have taken to the streets and to virtual spaces to bravely fight for their democracy. In an attempt to keep a grip on power, the junta has responded by unleashing a brutal crackdown, killing over 1,200 people, including more than 75 children, unjustly arresting or detaining over 10,000, and displacing more than 240,000 people.
It is now time for the U.S. Congress to act to hold the military accountable for all the abuses and atrocities it has committed. Congress must take concrete measures to support the Burmese people’s aspirations for an inclusive democracy and help bring accountability to the Rohingya people and other marginalized communities in Burma.
The BURMA Act of 2021 is based on the BURMA Act of 2019 (H.R.3190) and the Burma Human Rights and Freedom Act of 2019 (S.1186), two bipartisan pieces of legislation that were introduced but not passed into law.
The BURMA Act of 2021 will:
Authorize regional humanitarian assistance for displaced populations and provide support for civil society organizations, democracy activists, and independent media;
Authorize sanctions against the military and its allies, laying out parameters for licenses and waivers to sanctions to minimize the humanitarian impact on the people of Burma while ensuring the U.S. sanctions regime against Burma is laser-focused on the military regime’s economic interests;
Establish an interagency Burma accountability office to help coordinate U.S. policy on Burma and be a point of contact in multilateral efforts; and
Require the Secretary of State to determine whether the Burmese security forces committed genocide against the Rohingya, whether security forces committed war crimes or crimes against humanity since the coup, and to provide technical assistance to hold perpetrators of human rights abuses accountable.
QUESTIONS AND ANSWERS:
What is the current status of the bill in the House and Senate?
The BURMA Act was introduced in the House and Senate on October 5th with identical language.. H.R.5497 saw bipartisan introduction from House Foreign Affairs Committee Chairman Gregory W. Meeks, and House Foreign Affairs Asia-Pacific Subcommittee Ranking Member Steve Chabot, along with twenty two other representatives. S. 2937 was introduced by Senator Benjamin L. Cardin, member of the House Foreign Affairs Committee, along with eleven other Democratic senators, but lacking any Republican cosponsors. H.R. 5497 now has 46 cosponsors and S. 2937 has 17 cosponsors.
H.R. 5497 passed out of the House Foreign Affairs Committee on October 21 with minor changes. There is hope that it will be slated for a vote in the full House before the end of 2021. S. 2937 seems to be stalled until it receives Republican support. Senator Young was the lead Republican cosponsor of the BURMA Act of 2019 and there have been concerted efforts to get him to be the lead cosponsor of the current version. Other Republican Senators have deferred their decision on whether to join as cosponsors to Senator Young due to his past role as Republican lead in 2019. Senator McConnell, a past vocal supporter of Aung San Suu Kyi and the NLD, has not publicly supported or opposed this legislation, although comments from his office have suggested he may believe the Biden Administration already has all of the authority it needs to take action with regards to Burma.
The Senate Foreign Relations Committee has signalled that the bill will not be brought up for a committee vote until there is at least some Republican support. If H.R. 5497 passes the House, it will move over to the Senate. The question remains whether the Senate would take up the House version of the bill or continue to try to move forward on the Senate version. More efforts are needed to gain Republican support, particularly Senator Young.
Who supports this bill?
This bill has strong bi-partisan support in the US House of Representatives (current list can be found here). In the Senate, only Democrats have thus far committed to supporting the bill while they engage in negotiations with Senate Republicans (current list can be found here). A group of 242 Burmese and international CSOs and NGOs have also written an open letter of support for the bill (full list can be found here). The National Unity Government has endorsed the bill as well.
The President already issued an Executive Order (EO 14014), is this bill really needed? Yes. This legislation is much more comprehensive than President Biden’s EO. First of all, while EO 14014 deals exclusively with sanctions and other restrictive economic measures, the BURMA Act does significantly more.
On sanctions, the BURMA Act primarily serves to provide additional flexibility to the U.S. government by writing the authorizations from EO 14014 into law so that they do not depend on the ongoing ‘National Emergency’ declaration made by President Biden in EO 14014. It also improves coordination of sanctions policy and introduces administrative authorities for things like sanctions removal. See Q&A section on sanctions below for more detail.
Beyond sanctions, the BURMA Act will provide much needed support to pro-democracy activists and civil society groups operating inside and outside of Burma, aid to the independent media organizations that bring vital information out of the country, and humanitarian assistance to the tens of thousands of displaced persons in Burma as well as those suffering through the COVID 19 pandemic that the military has made worse through its actions.
The bill also includes language from the previously introduced Burma Political Prisoners Act (116th Congress: H.R. 2327, S. 2069) and the Rohingya Genocide Determination Act (117th
Congress: S. 1142; 116th Congress: H.R. 8744) and calls on the U.S. to more forcefully push for action in the United Nations.
ON SANCTIONS (Title II):
What do the ‘sanctions’ sections of the BURMA Act do? The sanctions section does a few main things:
Writes the authorities from President Biden’s Executive Order 14014 into law (section 202): Sanctions authorized by Executive Orders require a presidential declaration of a national emergency in order to remain active. This bill writes the authorizations from Biden’s EO into law to give both Congress, Treasury, and the State Department more flexibility in responding to the coup over the long term.
Bans the import of jade and gemstones from Burma into the U.S. (section 203): Burma is a major source of jade and rubies, and this bill re-establishes the authorization for the ban on jade and gemstone imports that was in place until President Obama lifted it as part of Burma’s democratic transition. Investigative reporting has shown that jade and gemstones are a key source of wealth for military officers and other conflict actors. President Biden would still need to decide to impose the ban.
Authorizes a “United States Special Coordinator for Burmese Democracy” (section 205): Authorizes a Special Coordinator within the State Department to coordinate the ongoing U.S. response to the coup, both with regards to sanctions as well as other US policy on Burma.
Other administrative actions (section 201, 204): The bill also includes a number of administrative authorities that deal with issues such as definitions, sanctions waivers, removal of sanctions, administrative review of sanctions put in place, etc. These are designed to promote the smooth functioning of U.S. sanctions
Supports further UN pressure (section 206): Calls UN actions to this point inadequate, and requires the US Permanent Representative to the UN to push for more UN action. This includes a pushing for a resolution condemning the coup, advocating for an arms embargo, and pushing for humanitarian assistance to be provided through civil society rather than the junta.
Does this bill require any new sanctions be put in place following passage?
No, it does not – at least not beyond what is required by President Biden’s EO already. This bill divides sanctions authorities into “mandatory sanctions” (section 202(a)) and “discretionary sanctions” (section 202(c)). The mandatory sanctions are nearly identical to the EO authorities, and while section 202(a) does say these sanctions “shall” be imposed, in practice they remain non-mandatory because no specific targets are named. Sanctions targets must still be identified and vetted through the standard designation process already being run by Treasury, State, and the National Security Council (along with other stakeholders). This process evaluates potential sanctions targets for their efficacy, secondary impacts, and other political and economic considerations. Without targets identified via this process, sanctions will not be put in place.
The bill does identify one specific target - the state-owned Myanmar Oil and Gas Enterprise (MOGE) - for “discretionary sanctions.” While the EO clearly requires that all state owned enterprises (SOEs) be sanctioned, the US government has not yet done so due to political opposition from within the standard designation process (demonstrating the point that required sanctions remain discretionary in practice).
No new sanctions will be put in place immediately as a result of this bill.
What about gas industry sanctions and the Myanmar Oil and Gas Enterprise?
In fact, this bill does not place sanctions on Burma’s gas industry – it merely maintains the authorization for such sanctions from President Biden’s EO (which authorized sanctions against “to be a political subdivision, agency, or instrumentality of the Government of Burma.” This includes state-owned companies like MOGE. There is no requirement to sanction MOGE within this bill.
However, it is true that MOGE is mentioned within the bill. Because MOGE sanctions are a key priority for the people of Burma, the bill calls on the Special Coordinator (along with Treasury and State) to issue a report within 60 days assessing the pros and cons of MOGE sanctions and determining whether MOGE sanctions would advance U.S. interests in Burma. To make this point clear, the bill explicitly authorizes “discretionary sanctions” on MOGE.
However, any MOGE sanction decision remains in the hands of Treasury and State, as it is now, with the same required review process moving forward. Individuals and organizations supportive of MOGE sanctions should continue to direct their advocacy efforts towards the U.S. State Department.
Would sanctions have a negative impact on civilians in Burma? What is civil society in Burma saying?
Foreign financial flows are a lifeline for the military, enabling the regime to purchase the weapons and technology the military needs to retain power and continue to oppress the people of Burma. The targeted sanctions authorized by this bill are designed to have a minimal impact on the people of Burma and a maximum impact on the military and its allies. The people of Burma have shown their support for exerting financial pressure on the military through general strikes and boycotting military products. Civil society organizations have called for targeted sanctions and for companies to put revenue payments into protected accounts, until a legitimate, democratic government can take power.
This can be seen in recent reporting that as much as 98% of citizens in Yangon and Mandalay have refused to pay their electricity bills since the coup, depriving the military of hundreds of millions of dollars in revenues. The Civil Disobedience Movement has also been leading boycotts of military-produced goods and companies. These sanctions are truly a reflection of actions already ongoing on the ground in Burma.
Is a ban on imports of jade and gemstones needed?
Yes. The military exerts significant influence in the industry, and research has shown that it is a major source of wealth for officers and their political allies. The jade trade was a significant driver of conflict in Burma even before the coup. This ban mirrors the ban that was previously put in place under the Tom Lantos Block Burmese JADE Act (P.L.110-286) in 2008 when the military was last in power. The ban was lifted under President Obama as part of Burma’s democratic transition, but remains appropriate with the military attempting to re-take control of the country. Further, this ban will still require presidential authorization, and will not go into place immediately on passage of this legislation.
Why is the format for these sanctions different from other pieces of legislation such as the Hong Kong Human Rights and Democracy Act?
The U.S. Congress writes sanctions laws in different formats depending on the underlying legislative need. In this case, the sanctions are designed to enshrine in law the authorities granted by President Biden’s EO, and so their layout mirrors that of the EO. Other administrative sections that lay out the parameters for licenses/waivers, put in place sunset provisions, and detail the different types of sanctions are common with many other pieces of sanctions legislation passed in recent years by the U.S.
What does the United States Special Coordinator for Burmese Democracy Do?
It is important to note that this role, while laid out within the ‘sanctions’ section of the bill (Title II), has a broader remit than sanctions. The position’s purpose is to “develop a comprehensive strategy for the implementation of the full range of United State diplomatic capabilities [...] to promote human rights and the restoration of civilian government in Burma.” Functionally this means a few things:
Coordinating sanctions policy across agencies and departments within the US government
Promoting diplomatic efforts internationally to strengthen sanctions
Working with international partners to promote policies that support democracy in Burma
Engaging with the UN, China, and ASEAN to promote US policy priorities around Burma
The Secretary of State may select a State Department official to have this position. The bill does not require the Secretary of State to do so, although if it remains unfilled after 180 days the Secretary of State must submit a report to Congress detailing why no one has been selected. This means that the individual lies within the State Department, reports to the Secretary of State, does not require Senate confirmation, and can hold other executive branch positions at the same time.
The Tom Lantos Block Burmese JADE Act (2008) authorized a similar position - an ambassador-level position called the “Special Representative and Policy Coordinator for Burma.” However, this position has remained unfilled for years, and so the BURMA Act of 2021 renews the position with a slightly adjusted mandate. Initial suggested language called for the BURMA Act of 2021 included reviving this position completely. However, the bipartisan response from lawmakers as well as input from the State Department concluded that the role would be better placed within the State Department.
CIVIL SOCIETY SUPPORT, HUMANITARIAN ASSISTANCE, AND ACCOUNTABILITY FOR ATROCITIES
Where do the definitions of some of the human rights-related terms come from?
These definitions are drawn from past legislation and/or commonly used international justice mechanisms. For example, the definition of “Transitional Justice” came from section 1232 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115-232; 22 U.S.C. 8791 note). Found here. The “Crimes Against Humanity definition” is taken from Burma Human Rights and Freedom Act of 2019 (S. 1186) but includes now the crime of “extermination” due to the Rohingya situation. The definition can also be found in the UN Statute of the International Criminal Tribunal for Rwanda and Former Yugoslavia. The US supported both multiple years in a row during both Democratic and Republican administrations.
How does this bill address the increasing humanitarian needs in Burma, particularly in light of the devastating third wave of COVID?
This bill provides funding to entities in Burma and the region for humanitarian assistance and reconciliation. This assistance includes support for victims of the Tatmadaw’s violence such as Rohingya refugees and IDPs, voluntary resettlement or repatriation with the involvement of displaced persons, promoting tolerance and social cohesion, combating gender-based violence, and providing education for displaced and conflict affected children.
Civil society and independent media continue to be targeted by the military junta. How does this bill support democracy activists, civil society leaders, independent media, and Civil Disobedience Movement participants?
The bill provides financial assistance to entities in Burma and the region that promote the safety of democracy activists and independent media, non-violent democracy activists in Burma, civil society organizations led by ethnic and religious minorities and those that advance peace, and
for the promotion of ethnic minority participation in political processes. This includes funding to organizations that equip activists, civil society organizations, and independent media; supporting safe houses for those under threat of arbitrary arrest or detention; and providing access to secure channels for communication.
Does this bill address the persecution and atrocities committed against the Rohingya and other ethnic minorities?
There is overwhelming evidence (including a report commissioned by the U.S. State Department) documenting that the military conducted an orchestrated campaign of genocide against the Rohingya. A genocide determination by the U.S. is a necessary step to addressing the impunity that the military and security forces in Burma have enjoyed for far too long. This bill would require the State Department to make a determination whether the persecution and attacks against the Rohingya constitutes genocide. It also requires the Secretary of State to issue a report determining whether human rights violations against any ethnic minorities in Burma between 2012 and the present amount to war crimes, crimes against humanity or genocide. This includes events that took place during or after the February 1, 2021 coup.
Over 9,000 people have been arrested by the military since February 1. What will this bill do to support the release of prisoners and prevent further arrests?
This bill would provide assistance to civil society organizations in Burma working to secure the release of prisoners of conscience and political prisoners and would also support efforts to repeal or amend laws that violate the rights to freedom of expression, peaceful assembly, or association.