Burma has long been a unique country not only for its otherworldly landscape of pagodas and gold-topped stupas but also, paradoxically, as an isolated country where a nationalistic military has given itself extraordinary constitutional powers. Generals, who have warped the country’s Buddhist heritage over half a century, can now attack the Muslim-majority Rohingya people with impunity.
They can also prevent the country’s elected civilian government from abiding by United Nations Security Council resolutions, including the most recent ones intended to curtail trade with North Korea.
Any attempts to defy the military by Aung San Suu Kyi, who heads the elected government, or by the country’s civilian president, Htin Kyaw, would be “grounds for impeachment,” said Janet Benshoof, president of the Global Justice Center in New York. She is at the forefront of calls for outside intervention through the International Criminal Court.
The horror in Burma — a nation that the generals call Myanmar, a name the United States has not officially recognized — is a major news story. For Benshoof, it is one more urgent case demanding action under international law and practice. The Global Justice Center advocates wider use of numerous international conventions and treaties.
Among the global tools are the Genocide Convention for Yazidi women abducted and enslaved in Iraq and a provision in the Geneva Conventions on the rules of war to counter the American “global gag rule,” which in the guise of opposing abortion hampers organizations offering reproductive health services in conflict areas.
Benshoof also argues that women in the US would have their rights protected better under a UN convention on women’s rights than they have under the US Constitution and courts.
For Burma, which is not a member of the International Criminal Court, the statute that created it allows a country in trouble to seek the court’s help in investigations, Benshoof said in an interview with PassBlue. She is leading calls for the Burmese president, who has deep experience in the country’s democracy movement, to turn to the court in the case of the Rohingyas. More than half a million of them have fled the western Rakhine region for Bangladesh in terror of the Burmese military.
“Suu Kyi couldn’t call the military and say: ‘Get out of there. Stop killing people,’ ” Benshoof said. “She can’t do it. She has no power to do it. Neither does the president of the country. It is a unique situation.”
“One of the major projects I’m doing right now is to make the world aware that this is a global issue of peace and security. Here [in Burma] you have a very geopolitically sensitive country, and the government cannot stop a ship from leaving for North Korea, cannot comply with a UN resolution,” said Benshoof, a lawyer and constitutional expert who has worked with women’s groups and legal organizations not only in Burma but also in countries as diverse as Iraq, Nigeria and South Sudan.
Benshoof’s path in life and the law began in a small town in the American Midwest, where she was born in 1947. She earned a degree with honors in political science and sociology from the University of Minnesota, followed by a law degree from Harvard. Minnesota was settled originally by hardworking people from Europe’s Nordic north. It was a mostly conservative environment, she said, “independent with sparks of being progressive.”
Although her formal immersion in international law would come later, she grew up in an intellectual family, she told an interviewer in 2013 for the American Bar Association’s Women Trailblazers in the Law project. Her grandfather published a local paper and her father was a prominent lawyer. Her mother, an avid reader who encouraged her two daughters to absorb a broad range of knowledge, had been a teacher but was forced to quit when she married, a situation that still rankles when Benshoof talks about her family.
“Because my grandfather owned the newspaper and my father was the district attorney, my family had a certain status; both had these intellectual interests and personal principles, which I admired from an early age,” she said in the American Bar Association oral history. “I remember my father telling me about how during World War II, the FBI came to investigate people in a town in Becker County called New York Mills, which was totally composed of Finns. I think the FBI was looking for Nazi spies as Finland had initially allied with Germany.
“My father refused to investigate Finns, saying, ‘I am not going to spy on those people, they are good citizens and I am not here to do that,’ ” she said. “And this impressed me.”
After her undergraduate years, punctuated by varied summer internships, including one at 3M headquarters in Minneapolis, she entered Harvard Law School in 1969 and was taken aback by the prevailing sexism around her. She and two other female law students formed a Women’s Law Association. One of their first accomplishments was to have Ruth Bader Ginsburg, then at Rutgers, invited to teach a course at Harvard.
Ginsburg, with whom she has remained close, was the first female professor Benshoof had encountered.
Benshoof said that after receiving her law degree in 1972 — when many graduates were still focused primarily on getting into top law firms — she first accepted an internship at a leading Seattle law firm. But by then, she had strengthened her feminist convictions, she said. Her next internship was with the South Queens Legal Services in New York. It was a turning point.
After graduation, Benshoof, wanting to stay in the legal services field, was hired to fill the only opening for a lawyer at South Brooklyn Legal Services, she said in the interview with PassBlue. She observed how the poor could not compete with lawyers for landlords or others who could take advantage of them.
“I did a case which argued [against] taking away day care from a poor woman,” she said. “Federally funded day care was as essential as welfare, and therefore the woman was entitled to a fair hearing. I won that case. I think it’s still law.”
Several years and numerous court cases later, Benshoof joined the American Civil Liberties Union to work on women’s reproductive rights, but eventually she became dissatisfied with the organization’s approach, which seemed narrow to her. She was on her way into another period in her life.
“I left the ACLU and formed the Center for Reproductive Rights. A large part of that was to be international,” she said. “I realized that at that time the ACLU wasn’t doing international law on human rights. They wanted to be limited to our [US] Constitution, and I saw that our Constitution was not going to protect reproductive rights. What rights women have under the Constitution, rights to equality and privacy, we see as rights that could go away tomorrow.
“I think that was my first step in seeing that the best way to look at rights in general was to take a more global viewpoint,” she said.
“The development of women’s and reproductive rights group, including my founding the Center for Reproductive Rights, faced an enormous challenge — being taken seriously as human rights groups in the human rights community,” Benshoof said. “The two founders of Equality Now, Jessica Neuwirth and Judge Navi Pillay, are international law and human rights experts par excellence. Yet I saw that Equality Now was not given a place at the table in the same way Human Rights Watch was.
“My idea for the Global Justice Center was to create an entirely new type of human rights organization, one in which women’s equality in power is a foundational principle not just for women but for human rights of all people — the core of our vision of a global rule of law and justice,” she said in an email following her interview with PassBlue.
In the US, Benshoof looks to the benefits of Cedaw — the UN Convention on the Elimination of All Forms of Discrimination Against Women — as one example demonstrating how American women get shortchanged by not having universal coverage. The convention was adopted by the UN in 1979 and signed by President Jimmy Carter for the US. It has never been ratified as required by the Senate, so the US is one of a minority of nations not bound by its provisions.
“Cedaw says, any law that has a disparate impact on women must be scrutinized as sex-discriminatory — presumed as discriminatory,” Benshoof said. “Nobody makes the argument in the United States that an anti-abortion law is sex-discriminatory.”
In the US at every judicial level, women’s rights get parsed and divided and are not seen in terms of blanket discrimination, Benshoof said. “If we had truly implemented Cedaw in the United States you wouldn’t even have Hobby Lobby getting to the courts, because you couldn’t have a religious freedom act trump women’s equality. Cedaw says that religion and culture are no defense.”
Hobby Lobby, a family-owned national chain of arts and crafts stores, won a ruling in the Supreme Court in 2014 that corporations controlled by religious families cannot be required to pay for contraception coverage for female workers under the Affordable Care Act. (On Oct. 6, after the Trump administration announced that it was broadening the exemption for all businesses claiming religious objections, the American Civil Liberties Union immediately filed a suit charging discrimination against women.)
When countries must start over, building or rebuilding institutions after conflict or an abrupt change in government, there are opportunities for women to shape laws that enhance their power.
“I work in Iraq a lot,” Benshoof said. “Women leaders of Iraq asked me to help them in 2004 get rights into the constitution. They got 25 percent women in the parliament, which is more than we have. In Kurdistan, we got 33 and a third percent women in the Kurdish parliament. Then the women asked me to get some international law rights.”
She organized a training program for Iraqi women and led them into discussions with judges about the scope of a tribunal that was set up to try abuses under the regime of Saddam Hussein, after he had been overthrown.
“The women leaders had never talked to judges before,” she said. “We got rape defined as torture under international law. We got reparations for the Kurdish women raped by Saddam. The Iraq judges were the first judges in the world to apply and convict, using the ICC gender-sensitive definition of rape.”
A campaign for equality must go hand in hand with real power in law. Settling for palliatives is not a substitute for winning fundamental, institutional change, in Benshoof’s view.
“Our motto,” she said, “is power, not pity.”