Bangkok Post, Perspective >> Sunday January 13, 2008
Naming the Name
Strategic use of due process will help prompt political transition in Burma, writes MIN ZIN
The political conflict in Burma has long been noted for its intractability. It is intractable not because it is irresolvable, but because it is resisting resolution. Of course, conflict in itself does not resist anything - people do. And the people of Burma know very well who the culprit is.
Buddhist monks and their supporters take part in a protest march in Rangoon on Sept 25, 2007, before the military regime's brutal crackdown.
"In Burma, Snr-Gen Than Shwe is an autocrat," said a well-known lawyer in Rangoon, who spoke on condition of anonymity out of fear for her safety. "He is not responsible to anyone else for what he does. He alone calls the shots."
Her view is shared by Bo Kyi, joint secretary of the Assistance Association for Political Prisoners (Burma) and a human rights activist. "Many foreigners I have met are not sufficiently aware of the real face of Burma's dictatorship," he said. "Than Shwe deserves a name that is loathed in international politics and media."
In this regard, the US government seems to have taken the initiative. A closer reading of the US State Department's latest press statement on Burma revealed a new trend of "naming the name."
"The Burmese regime, led by Than Shwe, continues cracking down on democracy activists for peacefully expressing their political beliefs," opened the statement dated December 21, 2007, regarding the regime's arrest of six 88 Generation Students group activists.
Instead of speaking about Burma's dictatorship in vague and faceless terms, the statement pinpointed the villain: "We deplore the regime's actions and call on Than Shwe to release all political prisoners."
Sources close to the US State Department said that the three-sentence statement was well crafted to isolate Than Shwe as the person solely responsible for what happens in Burma.
It was probably the first time that the State Department has pointed to Than Shwe as a culprit, said a lobbyist in Washington.
Several military analysts in Rangoon as well as abroad have said that there is growing resentment within the military toward the erratic behavior of Than Shwe and his family ever since the uncovering of his daughter's lavish wedding, and the harsh crackdown on the peaceful protests led by Buddhist monks in September.
Meanwhile, some experts have started floating the idea of going a step further- isolating Than Shwe and using the language of "justice and accountability" against him. They estimate that holding Than Shwe personally accountable for the regime's crimes against humanity may have a strategic impact in Burma's political transition. It might even help create a power balance between the junta and other potential partners in dialogue.
"Raising the prospect of justice and accountability for mass violations of human rights, along with corruption, can help to balance out the power difference and weaken the regime ..." said Patrick Pierce, a senior associate at the International Center for Transitional Justice. "The international community- the UN and Asean in particular- seems to be all carrot and no stick. There needs to be a balance."
However, the validity of the whole calculation will rest mainly on whether or not such strategic moves will encourage other generals to distance themselves from the aging Than Shwe, and facilitate some basic political and economic reforms.
Aung Kyaw Zaw, a Burmese military analyst living along the Sino-Burmese border, dismisses such prospects. "It will be counterproductive," he said. "Instead of being a positive incentive to other generals, these moves will give Than Shwe a chance to rally his hardliners by pointing out the common threat."
A Rangoon-based lawyer also noted that although Than Shwe is an autocratic supremo, he has plenty of hardline people around him. Any talk of a prosecution against him will deter potential political transition in Burma. Moreover, it will remind the generals of late opposition party leader Kyi Maung's reference to the "Nuremberg-style trial" against former military intelligence chief Khin Nyunt.
However, some activists argue that if there is no chance of political thaw under Than Shwe's autocratic leadership, why bother waiting in vain without accumulating pressure to remove him? They advocate any action that will target Than Shwe and his family.
Jared Genser, president of Freedom Now and co-author of the 2005 "Havel-Tutu Report" that calls for UN Security Council action on Burma, doubts the effectiveness of this strategy.
"Anyone can press for justice and accountability against Than Shwe under international law," said Genser. "But the problem is how seriously he will take such a threat. Ultimately it will only impact his behaviour if he believes there is a risk of being investigated, prosecuted and convicted. Unless that risk is real, we would be issuing an idle threat."
The effectiveness of the threat must be weighed not only in terms of the message, but also in terms of the agent who attempts to speak the language of justice to Than Shwe.
"Right now, Ibrahim Gambari, the UN's special envoy to Burma, is the only UN representative getting an ear - if that - and he is a political broker," said Pierce. "We need multivocality in the UN and in the international community. Others can and should play an effective role in raising the issues of justice and accountability if Mr Gambari deems it inappropriate for his role as a negotiator."
Some advocates suggest that UN High Commissioner for Human Rights Louise Arbour could bring such messages of justice to the regime. In her recent statements on Burma, the UN human rights chief frequently cited international law and urged the military junta to abide by it. In her statement on Burma dated October 2, 2007, Arbour recalled the international community's "responsibility to protect civilians against serious international crimes," according to the agreement of world leaders at their 2005 summit. She also pressurised the Burmese government "to account publicly for past and on-going violations."
Of course, if a person of high stature such as Louise Arbour was able to engage in a justice and accountability dialogue, it would give more weight and leverage to other UN organs, including Gambari, in dealing with the junta. However, it would still be an uphill struggle in transforming these aspirations of justice into practice within the UN mechanism.
"Unfortunately, in the short to medium term, without any rapid deterioration of the situation in Burma,it is highly unlikely we will see the UN Security Council willing to refer the situation to the International Criminal Court," said Genser. "Beyond China and Russia's opposition, even the US does not currently support the ICC. I do not see any government on the Security Council with the political will and persuasive ability capable of making this happen any time soon."
Some observers are concerned that pressure will offer the Burmese regime an excuse to disengage from the UN. "Than Shwe would even be thinking about stopping all political cooperation with the UN if he felt like he was under siege," said a military source inside Burma.
However, the Burma Lawyers' Council, an exiled group which has persistently called on the international community to hold the military regime's leaders criminally accountable before the ICC for their past atrocities and recent crackdowns, refutes the notion that one may not have both criminal accountability and active engagement with the regime.
In their statement released on October 10, BLC cited the case of Sudan as an example and said "there is no dichotomy between active engagement with the principal parties and seeking accountability for the crimes committed by one or more of those principals."
Of course, any strategy needs to be carefully balanced with the domestic realities of Burma so that it will not become counterproductive. However, as all victims of oppression demand, truth must be sought and justice must be done.
"If justice could be achieved through a strategic ploy to facilitate transition, it would be better," said Bo Kyi.
At a minimum, the international community must make sure that nothing should foreclose the efforts to ensure accountability for gross violations of human rights.
Min Zin is a freelance journalist.