November 8, 2015 1 Comment
The Letpadaung copper mine in the Sagaing Region of central Myanmar has become a major fault line in the struggle for human rights in that country. It is also emblematic of a global problem: the damage caused by exploitative resource extraction coupled with impunity for state violence.
Although the complex which houses the mine is some 20 years old, it has attracted increasing resistance since Myanmar began its ostensible transition away from strict military rule in 2011. Fed up with massive forced relocation and environmental degradation, residents have taken advantage of gradual political liberalization to begin staging demonstrations at the mine. But state brutality promptly tramples these actions, including at least one police assault on civil resisters — civilians — using military weapons. Abusive state officials have escaped prosecution while activists have been sentenced for exercising their fundamental rights.
Contention around the project — and especially police treatment of those engaging in nonviolent civil resistance to put an end to it — has grown into a real challenge for President Thein Sein’s rhetoric of civilian government and the development of rule of law. How the situation is eventually resolved will be a serious barometer for democratic transition in Myanmar.
But already its unraveling has revealed the potential for several innovations in rights defense in Myanmar. These innovations include increasing regional networking to facilitate deeper exchange between human rights defenders in neighbouring countries engaged in similar struggles, and developing more sophisticated advocacy and lobbying skills for drawing on the support of the international community. Domestic civil resistance can benefit both from the development of a culture of litigation and from a stronger network of professional human rights lawyers.
How civil resistance and litigation converged
Following a police crackdown on several hundred monks, students and farmers nonviolently protesting the Letpadaung mine in November 2012, an independent investigation by a group of Burmese lawyers and the US-based human rights organization Justice Trust revealed that the police had used white phosphorous grenades against the nonviolent resisters — a chemical weapon of complicated legality under international law. The monks, many shielding the other protesters, suffered the worst injuries: deep burns and lasting pain. “There was something specific about the particular fire,” one of the monk organizers, U Teikkha Nyana, told a group organized by several human rights organizations at Harvard Law School this past April.
This assault strengthened the ties between two groups — civil resisters and human rights lawyers — that have become increasingly inseparable fronts in the struggle for democratic transition in Myanmar. With modest political liberalization, and a generally decreased risk of lengthy prison terms, more Burmese lawyers are willing to take on potentially sensitive rights cases.
Following long periods of hospitalization, victims of the violent repression were finally in a place to embark upon the challenge of holding perpetrators accountable. On 11 March 2015, a group of monks led by U Teikkha Nyana filed criminal and civil suits against Home Minister Lieutenant General Ko Ko, who ordered the crackdown, and others. The case is a “fight for justice and to highlight human rights violations and the lack of rule of law in Myanmar,” Aung Thein, a lawyer involved with the case, explained to me at the same meeting in April.
Monks have become increasingly common litigants in Myanmar, although sometimes causing major polemics such as the ultra-nationalist monk U Wirathu. Civil resistance can help weaker groups increase their leverage over oppressors, while rights lawyers can serve to both maintain activists’ legitimacy and offer some protection against arbitrary abuse. Legal procedures force the state to articulate its persecution in legal terms. When the state clumsily insists on the legality of arbitrary persecution of civil resisters, for example, it often produces a backfire effect and further delegitimizes the state’s position.
On 24 March, the monks’ charges against the Home Minister and police were rejected on the grounds that no lawsuit can be filed against officials who are operating in good faith — a blow to hopes of institutionalizing accountability. Nevertheless, I have been told further legal challenges are likely to follow.
Meanwhile, protests spread as repression intensifies
Despite the police crackdown, demonstrations continued at Letpadaung and began to swell around the country as others joined in solidarity, directing their resistance toward the Chinese companies involved in exploitative environmental projects in Myanmar.
Small outbursts at the Chinese embassy in Yangon have continued since November 2013, the one-year anniversary of the violent crackdown on monks. At that time, Tin Htut Paing, a leader of the youth movement Generation Wave, burned a Chinese flag in front of the embassy. He was charged with violating Myanmar’s Penal Code and the Law on Peaceful Assembly and detained.
The next year, demonstrating with the “Black Campaign” students, Tin Htut Paing was arrested again for protesting outside of the embassy along with five others. His lawyer Robert San Aung explained that the six protesters were being charged disproportionately for exercising their freedom of expression.
The group of activists was convicted and sentenced to four years and four months in a May 2015 trial condemned by the International Commission of Jurists (ICJ), a Geneva based organization that promotes human rights through the rule of law, and others. Amnesty International called for their immediate and unconditional release while others asserted that the convictions seriously tainted the legal system in Myanmar.
Naw Ohn Hla, one of the women convicted, said she would continue to fight for others’ rights as soon as she is freed but assumed that the government deliberately gave them lengthy sentences to keep them imprisoned during the countrywide general elections in November 2015. The next day, the court added hard labour to the sentence.
Strategic opening for international diffusion
The mine at Letpadaung is a joint venture between Wanbao, a subsidiary of Norinco, a Chinese industrial manufacturing company that also specializes in high-tech weapons, and the military-owned Union of Myanmar Economic Holdings Company. This is a reminder of the important role foreign firms and governments play in developing or hindering the rule of law in Myanmar. This is not just about China.
A 2015 Amnesty International report criticized the Canadian firm Ivanhoe Mines, now Turquoise Hill Resources, and others for profiting from a corrupt or unregulated legal climate for resource extraction in Myanmar.
Ivanhoe Mines was involved in the Monywa Complex since the joint venture began in 1996. Between April 2003 and January 2005, it may have violated Canadian, US, and European sanctions for large amounts of copper sales to blacklisted military firms. Amnesty has called for Canadian authorities and the securities commission to investigate.
In 2007, Ivanhoe Mines claimed that it was divesting from the Burmese mine and transferred its shares to an “independent third party,” the independence of which has been contested by Amnesty.
A 2009 cable published by WikiLeaks shows Ivanhoe was simultaneously negotiating with Burmese and Chinese buyers but was eventually forced to sell to the Burmese state-owned ME-1 for $100 million, on the grounds that ME-1 had already agreed to sell the mine to the Chinese interest for $250 million plus $50 million in consulting fees and $100 million in upgrades. The sale was finalized in 2011.
Turquoise Hill is currently invested in two mining projects in Mongolia. In May 2015, a deal to sell its shares in the underperforming SouthGobi Mine to a Chinese firm fell through. Meanwhile the company has faced domestic opposition at another of its mine sites. Noted in a recent report by the Minority Rights Group, the Oyu Tolgoi Mine has sparked resistance by local herders, environmental and minority rights groups over the destructive impact of the mine on the surrounding landscape. The parallels to Letpadaung don’t need elaboration.
In their 2015 World Report, Human Rights Watch commented on the “enormous collective impact on the human rights of vulnerable communities worldwide” of Canada’s mining industry. HRW expressed concern that the Canadian government neither regulates nor monitors the respect for human rights of Canadian firms overseas. In 2009, Canada did establish a corporate social responsibility advisory, but has yet to empower it with oversight or investigatory powers over Canadian firms operating domestically or in foreign countries, such as Myanmar.
Broadening resistance strategies
Myanmar will continue to open up to more foreign trade and investment in the coming years. And the government is currently in the process of negotiating a contentious Investment Law. In early July, ICJ hosted a workshop with Myanmar’s Attorney General and others to discuss the investment law and protection of human rights in the country. Daniel Aguirre, ICJ Legal Adviser, commented that, “Myanmar needs to update its regulatory system to protect the environment and human rights.”
At the same time, civil society and human rights defenders may consider updating their strategies of resistance and rights defense. A targeted boycott of foreign-made products from host countries responsible for exploitive industries is one possible next step for national coordination of resistance. Increasing civil society pressure on the political and financial elite of select countries has its limits, as long as Myanmar protects elite interests over those of Myanmar citizens. Resistance to exploitative foreign involvement will require improving transnational activism and communication with activists engaged in similar struggles abroad. Ideally, it would also entail coordinating with networks of human rights defenders in countries whose foreign presence is targeted by civil resisters in Myanmar. This requires financial and logistical support.
International funders interested in supporting rule of law development in Myanmar will play an important role in regional exchange. Organizations like Amnesty and Frontline Defenders have long provided platforms for this type of exchange, but the demand is growing. Imagine the learning potential of combining activists and lawyers who have struggled against Letpadaung with their Mongolian counterparts who have resisted Oyu Tolgoi, or with the organizers of the thousands of Tibetans who have resisted the destruction of sacred or farming land by mining operations across western China. There are other transferable case studies for Myanmar from rights defenders around the world, such as Oscar Olivera who organized the successful resistance campaign against exploitive privatization in Cochabamba, Bolivia by the US construction firm Bechtel.
The upcoming Universal Periodic Review of Myanmar in November, wherein the Human Rights Council will review Myanmar on the totality of its human rights record, presents an opportunity for rights defenders from Myanmar and around the world. It might also provide a platform for putting pressure on other governments to examine their human rights records in Myanmar.
The UPR is a truly unique opportunity for universalizing domestic rights campaigns and forging links with supportive foreign governments. Unfortunately, reports indicate Home Minister Ko Ko will lead Myanmar’s delegation, seriously calling into question the country’s commitment to the process.
Building bridges to broaden tactics of nonviolent resistance
Protesting outside of embassies or burning country flags draws attention but is insufficient for sustainable coalition formation. To guarantee greater accountability for foreign companies operating in Myanmar, and the state officials tasked with protecting the interests of the local and international elite, domestic human rights defenders can target their activism at those firms’ countries of origin and strengthen their networks among human rights defenders in those countries. To complement these efforts, foreign governments with embassies in Myanmar can ensure they are accessible for civil society and guarantee they will not prioritize economic or political alignment with the elite at the expense of substantive commitments to human rights and the rule of law. But international action can only augment domestic mobilization; it cannot replace it.
In the narrative above we see the importance of bridging nonviolent civil resistance with the community of human rights lawyers. While the rule of law is barely poking through the soil in Myanmar, the country has made limited advances in terms of domestic and international law. While such concessions may be more to placate the international community toward abandoning sanctions and stimulating investment, they have created openings for challenging oppression. Addressing resistance to Letpadaung, Ant Maung, a popular poet, commented, “Five years ago this would have been impossible; such a movement would have been cruelly crushed.”
Myanmar has a long way to go but, as Aung Thein noted at our meeting in April, it is time to nurture a domestic culture of litigation. Belief in the rule of law must come from below and strategic litigation should be calculated alongside other tactics of resistance. Through greater training, made increasingly possible by support from international organizations, Myanmar civil society will gain more rights awareness, allowing for more informed rights demands.
At the same time, just as the international community must perform due diligence when supporting top-down initiatives or large-scale investment, it must be cautious in supporting bottom-up programming. Sitting in his apartment in Yangon, Robert San Aung, the idiosyncratic human rights lawyer and six-time political prisoner under the ancien régime, shared his concern with me. Entrepreneurs have emerged to take advantage of legal aid and development funds, just as in other contexts of post-conflict or development, which is upsetting the network of nascent domestic lawyers. For San Aung, funders truly interested in supporting human rights in Myanmar must ensure checks and balances, which can be achieved through deeper engagement on the ground, meaning more language officers and interactions with civil society.
Arguably the way forward for rights defenders in Myanmar is to continue augmenting domestic rights defense with transnational activism and international law, and to continue finding ways to take advantage of the same international opening that has benefited the government.