The United Nations (UN) established the International Criminal Court (ICC) in 2002 to indict, try, and sentence individuals who commit any of four crimes, including war crimes or crimes against humanity. Although neither the United States nor Myanmar are currently signatories to the Rome Statute that created the authority and jurisdiction of the ICC, there is a new human rights campaign underway that seeks to draw both countries into the orbit of this institution’s influence. In contrast to ad-hoc tribunals or the European Court of Justice, which have primacy or supremacy over domestic courts, the ICC can exercise jurisdiction only if domestic courts are unable or unwilling to prosecute. Such incursions on state sovereignty can be morally founded upon the UN’s recently developed international human rights norm that emphasizes the international community’s “Responsibility to Protect”. When a state refuses, fails, or demonstrates an inability to protect its civilians from fundamental human rights abuses, it is the responsibility of the international community to protect that state’s civilians.
In 2009, activists and advocates, inside Burma and beyond, began organizing a transnational campaign to harness this institutional power to activate an international legal mechanism that could give an ICC prosecutor jurisdiction over some of the most serious crimes that the ruling generals of Myanmar have been committing with impunity against their own civilians. As a first step, these “Free Burma” movement supporters called for a United Nations Commission of Inquiry to send an international monitoring team to investigate their allegations. Initiating such an inquiry requires only the support of one permanent member of the United Nations Security Council. For example, the United States, as a permanent member of the UN Security Council, has the power to initiate a UN Commission of Inquiry without unanimous consensus of the other permanent members.1 If a UN investigation team in Myanmar subsequently were to conclude that there exists enough evidence to prosecute a trial, then they could recommend a referral to the ICC. A political long shot? Certainly. Nevertheless, the “Free Burma” movement’s strategy seems to be working.
To date, the ICC has opened investigations into four situations, all in Africa: Northern Uganda; the Democratic Republic of Congo; the Central African Republic; and Darfur. But in March 2010, Tomas Ojea Quintana, the U.N. Special Rapporteur on the Situation of Human Rights in Myanmar, grabbed the attention of countries in Asia when he called upon the United Nations to establish a commission of inquiry with a specific fact-finding mandate to investigate possible war crimes and crimes against humanity by the Myanmar military regime. The chief target of this inquiry is Senior-General Than Shwe, who has ruled Myanmar since 1992 and presided over a campaign to eliminate political opposition and bring once-autonomous ethnic groups under the direct control of the military government. This past June, Foreign Policy magazine ranked Than Shwe as the world’s third worst dictator, behind Zimbabwe’s Robert Mugabe and North Korea’s Kim Jong-il. Preliminary reports have suggested that there is ample evidence against Than Shwe for an ICC prosecutor to pursue allegations of 16 different categories of war crimes and crimes against humanity.
Although Quintana alone does not have the authority to initiate a Commission of Inquiry, his formal request for one signals an important rallying cry to supportive member-states of the UN who have been expressing their concern over the Myanmar rulers’ recent efforts to consolidate their power over Burma’s civilians. Almost immediately, several states, including the United Kingdom, Australia, the Czech Republic, and the Slovak Republic, responded to Quintana’s recommendation by formally expressing their support for establishing this U.N. commission of inquiry. Many other governments expressed interest in supporting the initiative, but claimed that they were waiting to see what position the United States would take. Then, in late August, the Obama Administration announced its support for the strategy. Obtaining Obama’s endorsement virtually ensures that a Commission of Inquiry will proceed.
CONVERTING A COMMISSION OF INQUIRY INTO AN ICC REFERRAL
There are three paths through which a country might be referred to the ICC. The most straightforward path applies only to countries that are signatories to the Rome Statute. In such cases, the ICC prosecutor can directly initiate an investigation. Alternatively, a country that has not only signed, but also ratified, the Rome Statute can ask the ICC prosecutor to investigate (and even prosecute) cases within its borders. In the case of Myanmar, which has not even signed the Rome Statute, these two paths are closed.
But there is still another path through which an ICC prosecutor can gain jurisdiction over crimes that take place in non-signatory countries like Myanmar. Unlike launching an initial Commission of Inquiry, securing a referral along this path requires a vote of the UN Security Council (UNSC). This means that nine of the 15 member-states on the UNSC vote to give the ICC prosecutor jurisdiction, and that there is no veto from any one of the UNSC’s five permanent member states.
Many observers claim that even this third path is closed in the case of Myanmar, based on the assumption that China, which is heavily invested in the country’s economy, would surely veto any effort that might threaten to destabilize the primary institution (the military) through which nearly all economic relations in Burma are organized. Yet, as others have pointed out, this same logic did not trigger China’s veto in the case of Darfur last year, when the ICC for the first time indicted a sitting head of state, Sudanese President Omar al-Bashir, on charges of war crimes.
Instead, China diplomatically chose to abstain from voting – a move that, while signaling its lack of support for the ICC action, still permits the ICC to exercise jurisdiction over the matter. Several prominent Chinese legal scholars also contend that, although China typically dismisses allegations of human rights abuses directed at States, it takes very seriously allegations of individuals violating international criminal law. Thus, the question of whether China would veto a UNSC effort to refer Myanmar to the ICC remains open.
TRANSNATIONAL JUSTICE “FROM BELOW”?
The lion’s share of international media attention devoted to this Commission of Inquiry has focused on the action of states and UN representatives. Yet, the groundwork for this campaign has come from civil societies thinking and working transnationally. Free Burma activists and advocates developed this strategy in collaboration with some of the most respected legal experts in the world. They garnered diverse political support across party lines within the United States and the United Kingdom. They organized national and international conferences among human rights activists working on a wide-range of issues to learn from their experiences and mobilize their support. They convinced Quintana that a Commission of Inquiry was a necessary and viable course of action. They also generated commitment from organizations throughout this transnational movement, mobilizing resources, providing advocacy and training, and coordinating linkages between grassroots and international projects for documenting human rights abuses and raising awareness.
This is a story of how transnational social movements can influence political and legal institutions of human rights governance, activating and extending international human rights law to rein in even the most difficult cases of impunity. In this sense, we could portray this campaign as an example of how transnational social movements are capable of influencing the production of human rights “from below” – getting their own framings of injustice and human rights practice into the mix of UN discourses that we typically assume are dominated by states, political elites, corporate lobbyists, and international legal practitioners and experts.
But within transnational movements too, there exist unequal relations of power that disorient such spatial metaphors distinguishing action “from below” and “from above.” As scholars Inderpal Grewal and Caren Kaplan have noted, we inhabit a world of “scattered hegemonies”, and the injustice that we experience derives always from multiple sources of oppression. For researchers interested in the development of human rights and global justice, questions about this campaign remain. For example, whose understandings of human rights and justice are being defended and promoted by this campaign? Critics have raised general concerns about the hegemonic relations between NGOs of the Global North and South, and the repressive and exclusionary politics of representation that play out through transnational human rights advocacy and litigation. They point to a transnational solidarity that is produced through socially “thin” relations, and raise questions about the durability and potential of its agency for social change, as well as the practices of human rights and democracy that they are locally routinizing within civil society.
Since the early days of its mobilization, I have been conducting field research on this campaign. I found that many Burmese and ethnic minority groups, smaller non-governmental organizations (NGOs) and community development organizations have been quietly harboring ambivalence toward the campaign. Attention to these concerns point to a complex politics of human rights that exists within the Free Burma movement. Thus, this story also has another lesson that offers a different understanding for how transnational social movements might democratize the production of human rights.
In May 2009, I was invited to Bangkok to participate in the first international conference in which representatives from scores of NGOs and civic associations supporting the Free Burma movement gathered to assess whether they had garnered sufficient internal support to coordinate and sustain this campaign. The International Federation of Human Rights and the Burma Lawyers’ Council organized the conference around the theme, “Advancing Human Rights and Ending Impunity in Burma: Which External Leverages?”. Several spies from Myanmar’s military intelligence infiltrated the conference and attempted to abduct its chief organizer, a lawyer-in-exile from Burma. Fortunately, with the help of Thai authorities and the Norwegian Embassy in Bangkok, the plot was thwarted. Yet the episode underscored the concerns about the campaign that many of the attending Burmese and ethnic minority groups had expressed that week. Many participants, especially those operating within and along Burma’s borders, worried about the risks to which they might be subjected were Than Shwe not successfully extradited in the wake of an International Criminal Court indictment. They were concerned that, just as al-Bashir’s systematic and aggressive targeting of NGOs in the Sudan—forcing them to cease their operations after he avoided extradition—Than Shwe might be able to do the same.
They also expressed concern over what happens after a UN investigation team arrives – when the real work for human rights groups inside and along the borders of Burma would begin.2 For example, an interesting conflict emerged over the practice of using child soldiers. Myanmar is the only state whose military forcibly recruits child soldiers. Organizations whose mandate and funding focus on this human rights offence were adamant that it be included among the allegations promoted by the ICC campaign. However, many NGOs and ethnic minority groups working on other human rights issues depend significantly on non-state “rebel” armies to provide them with a protective escort through conflict-ridden areas of the country to access the communities that they serve. Like the Myanmar military, these non-state armies also rely upon child soldiers to fight their battles. A Commission of Inquiry would investigate all instances of child soldiering. Thus, these groups expressed concern that, by including the practice of using child soldiers among their ICC campaign’s list of allegations, they not only would be biting the hand that feeds them, but also undermining their own human rights projects. Other advocates played down this objection, arguing that to successfully prosecute cases of child soldiering in the ICC would require that UN investigators could effectively represent these non-state armies’ child soldiers as “passive or blameless victims”. The trouble with doing so is that many of these children have proudly volunteered to fight as soldiers for democracy and human rights in Burma, and to avenge the tragic losses that they and their villages have suffered at the hands of the Myanmar military. Concern still lingers.
SOCIALLY “THICKENING” RELATIONS OF TRANSNATIONAL SOLIDARITY
My observations at this conference lead me to think more explicitly about the character of the social relations that produce, sustain, and transform this movement’s transnational solidarity. This past summer I began conducting field research in Burma and along its borders on the efforts of various organizations within the movement to develop grassroots human rights training programs. These organizations are self-reflexively working to democratize the collective process through which NGOs and other organizations in the Global North and Global South are producing understandings of the practice of human rights in Burma. I examine how these NGOs organize their relations with grassroots participants in these programs to discuss, interpret, and identify local meanings of human rights and justice. I then trace how, the extent to which, and with what effect these local meanings “travel” (and transform) through the movement’s transnational networks of meaning and practice, and attempt to see whether and how they influence NGOs campaigns for political-legal institutional change.
One of the more complex obstacles to linking “grassroots” and “international” campaigns that I have discovered stems from conflicting notions of justice. Some groups working inside Burma eschew the term “human rights” altogether to distinguish themselves from human rights NGOs that they consider to have effectively “captured” the meaning of the term in such a way that it is associated predominantly with retributive conceptions of justice. In contrast, these groups are pursuing projects of restorative justice. Although they understand themselves to be struggling for human rights in a broader sense, they prefer to use the term “community development” to describe their activities.
An example bearing directly on the ICC campaign involves a group that is training people to use non-violent techniques to thicken relations between civil society and rank-and-file soldiers of the Myanmar military. One particularly creative technique includes a 24-hour call-in (pirate) radio program that intersperses soldier song requests with serious two-way discussion about the everyday struggles of serving in the military and living under military rule. In this group’s view, the key to restoring justice and peace in Burma is to win over the “hearts and minds” of low-ranking, disaffected recruits who are reluctantly following their officers’ orders, but who are obviously conflicted about the abuses against civilians that they are commanded to commit. It is not hard to see how an ICC campaign, which demonizes and seeks to punish the military, might undermine projects like this one, which seek to build bridges between civil society and the military.
In the case of the ICC campaign, no one doubts that there is ample human rights abuse to justify the case against Than Shwe, but how the evidence is obtained, and how the abuse is represented, matters. Will this pressure to frame the abuse within pre-existing, institutionalized human rights discourse hinder the efforts of more progressive NGOs that have been trying to identify local meanings of human rights and injustice that are not internationally institutionalized and legally actionable? My hunch is that most will be “lost in translation,” but it is the process of how this happens, and why, that I am exploring. If the Free Burma movement can find ways to further democratize their social relations of transnational solidarity and production of human rights in ways that inform their strategies of transnational legal action, then they will have charted a truly alternative and progressive course for change –for Burma, and the rest of us.
John G. Dale ([email protected]) is assistant professor in the Department of Sociology and Anthropology (http://sociology.gmu.edu). He is co-author (with Anthony Orum) of Political Sociology: Power and Participation in the Modern World (Oxford University Press, 2008) and author of Free Burma: Transnational Legal Action and Corporate Accountability (forthcoming, University of Minnesota Press).
ENDNOTES
* At the end of 1989, following a brutal crackdown on its civil society’s widespread pro-democracy movement, the ruling military junta called for changing the name of Burma to “Myanmar.” The United Nations has agreed to use the name Myanmar, yet most activists promoting democracy and human rights in the country still cling to “Burma.” Thus, any author who wishes to write about the conflict in this country first must make some inevitably contentious choices about how to refer to the country. In this article, I will use “Myanmar” to refer to the post-1990 military government. Yet, to resist playing too easily into the questionable intentions of this regime’s project of collective forgetting, and in some measure as a stance for the ideals of democracy and human rights that Burma’s opposition movement seeks to institutionalize, I retain the name “Burma” to refer to the country and its civil society.
- The other four permanent members include the United Kingdom, France, Russia, and China. [↩]
- Although these groups have been documenting human rights abuses for years, the UN would be looking for evidence that meets the specific litigation standards of the International Criminal Court. Security issues, limited resources, and disputes over ownership and “framing” of the data have long hobbled efforts to coordinate and standardize documentation across these organizations. Additionally, there is the sensitive question of which abuses to emphasize. [↩]
