Thailand Law Journal 2009 Spring Issue 1 Volume 12

1. Human Rights Situation in Burma [FN51]

According to the United Nations and human rights groups, Burma has one of the worst human rights records anywhere in the world. [FN52] The abuses include systematic rape, forced labor, forced soldiers, child porters, torture, extrajudicial killings and forced relocations. The Burmese military has a record of using rape and other forms of sexual violence as a weapon of warfare for decades. [FN53]

By committing such acts regularly, the SPDC army instills fear not only in the villages where women are actually raped, but also in all ethnic communities where women might be raped. This is particularly true because women are raped during their normal, daily activities. The message sent is that all ethnic women are at risk every day, and that it is impossible to avoid the circumstances under which the rape might occur. [FN54] One woman from Burma describes the situation:

Every time we hear that the SLORC is coming to our village, we prepare our meal before dark and take our food to hide in the forest, because every time the soldiers come, they would rape us.  Many women have been caught and taken to the senior officers.  After the officers have raped the women, they would be given to the other men.  Women who have been caught by the soldiers are considered by their own village as bad women because people gossip about her that she has lost her virginity. [FN55]

Forced relocations are another form of human rights abuse perpetrated by the regime.  In 1996, the SPDC began a program of massive forced relocations-- forcing at gunpoint more than 300,000 people into relocation sites within Central Shan State. [FN56] Since 1996, an estimated 2,700 ethnic villages have been destroyed in eastern Burma, including Shan state, resulting in the displacement of up to 1,000,000 people. [FN57]

Forced relocations may occur to make way for business interests or to control villages for reasons of “security,” such as preventing them from growing rice which may be eaten by suspected insurgents. Armed soldiers force entire villages to leave their homes and crops, loot and burn down the homes, and threaten to kill anyone returning to gather food. Food, water, medical care, and shelter are not provided. Massacre and rape are common. An NGO assisting internally displaced people in Burma describes the situation of ethnic minorities who are forcibly relocated:

In the minority areas such as the Karen, Karenni and Shan states, up to 1 million people have been forced to leave their homes and live in relocation sites were [sic] their freedom is severely restricted and their treatment brutal.  In the minority areas the dictatorship has forced people to leave their villages with only what they can carry, they are then forced to move to a relocation site.  The villagers' livestock are usually confiscated and *834 their villages burned to the ground. Many areas are then mined to prevent villagers from returning. In some cases the villagers are not given a choice of going to a concentration site, but are attacked by the Burma army, their villages burned, and their people murdered or chased into the jungle. [FN58] Another NGO describes forced relocations of Shan people specifically:

The SLORC undertook the first massive forced relocation of Shan residents in March 1996.  A second and a third wave of forced relocation occurred in March and December 1997.  And human rights violations often happened in that time.  Several hundred Shan civilians were killed during the relocation program.  Villagers who refused to move would be burned to death inside their dwellings.  Most of those killed, were shot dead after they had returned to their villages to gather food and retrieve their possessions.  The villagers in relocation sites are used as forced labor by SPDC's troop, for instance working as porters or building road[s].  Other cases such as extortion, destruction [of] paddy fields, torture and sexual violence have also been reported every month.  Furthermore, the forced rice procurement policy, where the farmers were forced to sell their rice [to] SPDC authorities by lower prices, currently put them into the bad[] situation. [FN59]

2. Economic Situation in Burma

The military regime has also destroyed the economy of Burma.  “Isolationist policies and gross economic mismanagement of the Burmese economy for almost 50 years by army generals determined to build their military fighting capacity has resulted in a country-wide economic crisis.”  [FN60] Once one of the world's most fertile and mineral-rich countries, Burma is now one of the fifty poorest countries in the world, and in 1987, it received “Least Developed Country” status from the United Nations. With an average per capita income of approximately $150 per month, [FN61] “[t]he cost of living in Burma is high, while the locally reported per capita income is not. The unemployment rate is consistently increasing, with few job opportunities available, and wage-earning hours are eaten away through the endemic use of forced labour by the military.”  [FN62] The land has become infertile and there is little water. Families are reduced to begging. [FN63] The dire economic condition is a result of corruption and mismanagement as well as militarization, *835 including the civil war occurring in various parts of the country. [FN64] More than 40% of the national budget is spent on military expenditures while less than 1% of GDP is spent on health and education. [FN65]

F. The Result: Migration to Thailand and Increased Vulnerability to Trafficking and Sexual Exploitation

The trafficking of women and girls from Burma to Thailand takes place in the context of migration and movement: [FN66] internal and external, voluntary and forced, regular and irregular. Forced and irregular migration makes people especially vulnerable to trafficking and other forms of exploitation. Forced migration may involve direct force as well as economic force. Direct force in the Burmese context includes those who are escaping situations of human rights abuse and other forms of oppression in Burma. Economic force involves both push and pull factors that compel thousands of Burmese to leave a dire economic situation in Burma to seek livelihood in Thailand.

The human rights abuses and economic oppression in Burma has caused massive internal and external displacement of people.  As many as 2,000,000 people are internally displaced within Burma, [FN67] including 540,000 who have fled to eastern Burma along the Thai border as a result of forcible relocations. [FN68] A number of others seek refuge across the border in Thailand--some fleeing oppression, some seeking livelihood, many doing both. Nearly 150,000 refugees from Burma live in border camps in Thailand. [FN69] However, Thailand does not officially recognize refugees, as it is not a signatory to the 1951 Convention relating to the Status of Refugees. [FN70] Instead, it offers limited “person of concern” status, entitling certain peoples, such as the Karen, to basic protections. This status is not available to most of the estimated 200,000 Shan refugees who have fled to Thailand since 1996. [FN71] As a result, there are an estimated “350,000 or more Burmese living in Thailand in refugee-like circumstances who have fled persecution but are considered illegal migrants for lack of documented status.”  [FN72]

[FN51]. This Article does not attempt to give a comprehensive history or account of the human rights situation and government situation in Burma, as that would be material for another, or several other, law review articles in themselves. Instead, the purpose of this section is to give a snapshot of the political and economic situation that is fueling migration from Burma. It is interesting to note that many of the people of the Shan State are not aware of the occurrence of these abuses, as the people are denied access to media and other communications. Instead, they experience the daily reality that the repression exacts.

[FN52]. See, e.g., Nang Lao Liang Won (Tay Tay), Shan Women's Action Network (SWAN), Situation of Shan Women, Presentation at the Women's Studies Center, Chiang Mai University Regional Seminar: New Voices from the Mekong Region: Women in the Public Arena (Nov. 7-10, 2005); Images Asia, Migrating with Hope: Burmese Women in Thailand and the Sex Industry 14 (1997), available at http://www.ibiblio.org/obl/docs3/Migrating-with-hope-ocr.pdf (“Amnesty International has accorded the SLORC as having one of the most appalling human rights abuse records in the world and makes special note of their treatment of ethnic nationality groups.”).

[FN53]. Nang Lao Liang Won, supra note 52.

[FN54]. Shadow Report, supra note 48, at 27-28.

[FN55]. Images Asia, supra note 52, at 17.

[FN56]. Shan Human Rights Foundation, Dispossessed: A Report on Forced Relocation and Extrajudicial Killings in Shan State, Burma, Executive Summary (1998) [hereinafter Dispossessed], available at http:// www.shanland.org/resources/bookspub/humanrights/dispossessed (last visited Apr. 6, 2006).

[FN57]. Jim Pollard, Movement on the Border: Up to 12,000 Refugees in Camps Along the Thai-Burma Border Will Be Resettled Abroad this Year, The Nation (Thailand), Feb. 23, 2006, available at http:// www.nationmultimedia.com/2006/02/23/special/special_20001402.php.

[FN58]. Christians Concerned for Burma, Internally Displaced People of Burma: A Tragedy that Can Be Stopped, http:// www.prayforburma.org/IDX/Resources/idp.html (last visited Apr. 6, 2006).

[FN59]. Jinnah, The Peace Way Foundation, Burma Issues: Shan, http:// www.burmaissues.org/En/shan.html (last visited Apr. 6, 2006) (alterations added).

[FN60]. Shadow Report, supra note 48, at 32.

[FN61]. U.S. Central Intelligence Agency (CIA), The World Factbook: Burma, available at http://www.cia.gov/cia/publications/factbook/print/bm.html (last updated Mar. 29, 2006).

[FN62]. Images Asia, supra note 52, at 7.

[FN63]. Dispossessed, supra note 56.

[FN64]. See, e.g., Women's Rights Project of EarthRights Int'l & Burma U.N. Service Office, The Situation of Women in Burma: A Review of Women's Rights in the Context of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 5 (1998) [hereinafter Situation of Women in Burma]; Shadow Report, supra note 48, at 4 (“The SPDC's fiscal policy, to expand the army at the cost of the development, has led to widespread poverty.”).

[FN65]. Nang Lao Liang Won, supra note 52.

[FN66]. However, it is important to remember that movement is not required for trafficking to occur. See, e.g., U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, art. 3 (Nov. 15, 2000) [hereinafter U.N. Trafficking Protocol], available at http://www.ohchr.org/english/law/pdf/protocoltraffic.pdf. (defining trafficking as recruitment, harboring and receipt of persons for the purpose of exploitation in addition to transportation and transferring).

[FN67]. Pranom Somwong, Migration Action Programme, Migration in Mekong: Learning from Experience of Women in Burma, Presentation at the Women's Studies Center, Chiang Mai University Regional Seminar: New Voices from the Mekong Region: Women in the Public Arena (Nov. 7-10, 2005).

[FN68]. Pollard, supra note 57 (citing Thailand Burma Border Consortium (TBBC) 2005 Annual Report).

[FN69]. Pollard, supra note 57.

[FN70]. See U.N. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.

[FN71]. Nang Lao Liang Won, supra note 52.

[FN72]. Women's Comm'n for Refugee Women & Children, Nowhere to Run: Ethnic Burmese Living in Refugee-Like Circumstances in Thailand § 1 (2000), available at http://www.womenscommission.org/reports/th_00.shtml (internal quotations omitted).

This article is published with the kind permission of Christa Foster Crawford. The article originally appeared in Cardozo Journal of Law & Gender, Summer 2006 issue.