8th July, 2004
Ka Hsaw Wa has seen many of his friends killed and has suffered torture at the hands of the Burmese military. Now he is taking Unocal, one of the US companies that trades with the murderous regime, to court. One of the most wanted men in Burma, talks to The Ecologist.He goes to great lengths to conceal his identity. He does not give his real name, but an alias he adopts to protect his family. A few years ago he took a knife and skinned a distinctive tattoo from his right forearm. Only a rough scar remains.
The 33-year-old sitting opposite me in the lobby of a London hotel is one of the most wanted men in Burma. Thanks to his courage the most profitable enterprise ever undertaken by the ruling military junta is under threat. The junta – the murderous Tatmadaw – wants him dead. But the many ordinary Burmese who have been abused and seen relatives killed while working on the Tatmadaw’s £1.2 billion Yadana pipeline project see him as a hero. They call him ‘Ka Hsaw Wa’, which in the language of the Karen means ‘white elephant’. For the indigenous Karen, the white elephant is a sign of hope.
Ka did not intend to be a hero. And but for a single, dreadful event 16 years ago, he might never have become one. Back then he wanted to work in a bank. ‘I was just another obnoxious teenager,’ he tells me. ‘I loved US clothes. I loved Western music. I wore clothing like AC/DC. Chains. Earrings. Long hair. All I cared about was how I looked, hanging out with my friends, messing with girls.’
All that changed in 1988 – the most infamous year in Burma’s recent, tragic history. The country had suffered years of economic collapse, environmental degradation and human rights abuses as a result of the junta’s isolationist ‘Burmese way to socialism’ programme. By the middle of that year, rice stocks were running perilously low and public anger was boiling over.
‘It was two weeks after my birthday,’ Ka continues. ‘A close friend with whom I used to go kick boxing had disappeared. The military was trying to locate him, but I did not have any information. So they tortured me brutally for three days. Before that I was a teenager. Afterwards I didn’t want to be a teenager anymore.’
Instead he joined the student protest movement. When the police killed one of his fellow protesters later that year, the universities came out in mass support. Ka was already one of the ringleaders. Then on 8 August 1988 hundreds of thousands marched to demand the regime be replaced by an elected government. The military’s response was as savage as it was inevitable.
Soldiers opened fire with machine guns on crowds of unarmed protesters, killing thousands. Caught in the crossfire, Ka and a friend fell to the ground, desperate to escape the hail of bullets. But when Ka got back to his feet his friend remained motionless on the ground, dead from a shot in the back. Fearing for his life he fled Rangoon, determined to join the armed insurgents hiding out in the dense jungle of southern Burma. ‘I was so angry,’ he tells me. ‘I wanted to kill.’
Over the following weeks he made his way from village to village, travelling mainly by night, only stopping for as long as he felt safe. Then one day, as he was stumbling through the undergrowth, he came across the naked body of a dead woman lying on the ground. ‘Seeing her body,’ he remembers, ‘changed my whole life.’ There was a tree branch in her vagina. One breast was sliced. The other had its nipple cut off.
For days he could not get the image of the brutalised woman out of his mind. (Later he learnt she had been a nurse forcibly taken by the military to cure soldiers who had fallen ill. They had raped and killed her.) The violence he had seen in Rangoon had made him angry, made him want to seek revenge. But this atrocity affected him differently. Alone in the jungle, he began to ask himself if fighting back was really the answer. Would it actually make things better, or was he just seeking to satisfy his own anger? After many days of doubt and soul-searching he decided not to join the armed resistance. ‘I didn’t want to bring more violence to Burma,’ he explains.
But what could he do? ‘All I had was a pen and a little Burmese-English dictionary,’ he tells me. He began talking with the people he met in the jungle, listening to their stories of abuse and torture. ‘Whenever I interviewed someone I would write the name of the person, the date, the number of the battalion that had committed the abuse, how many they had killed, in the corner of the dictionary’s pages. I memorised the rest. Then, whenever I saw a Westerner I’d plead with them to write it all down and send it to Amnesty International.’
Fellow Burmese who had chosen to take up arms against the junta mocked him. ‘They told me I did not have any man-blood in my body and I didn’t deserve to wear a man’s sarong because I didn’t dare fight for my people. They did not understand the path I had chosen.’ Ka, too, began to have doubts. ‘What was the point in telling all these stories if no one was listening, nothing was getting any better?’ he asks.
A meeting with an American law student in 1992 was to change everything. The year before Katie Redford had been profoundly affected by spending a summer teaching English to Burmese refugees in Thailand. Each day the walls of her classroom would shake, her lessons drowned out by explosions as the Tatmadaw fought with the resistance movement hiding in the dense jungle through which the Burmese-Thai border runs.
She returned a year later, hoping that somehow she could help the Tatmadaw’s victims. ‘If you want to know what’s really happening,’ the refugees would tell her, ‘you must find Ka Hsaw Wa.’ So Redford crossed the border hidden inside a truck, and once inside Burma she took a small boat up the Salween river, constantly stopping to ask people where she might find Ka. It seemed every villager knew who he was, and everyone wanted to help. Following their advice, she finally left the boat behind and headed off into the dense jungle.
Eventually she found him. The two of them returned to the Salween river, again stopping at the villages scattered along its banks; this time to record the villagers’ stories. Amid the ever-growing catalogue of cruelty, one word kept recurring: Yadana.
Stretching 39 miles from the shores of the Andaman Sea on Burma’s west coast to the Thai border on its east, the $1.2 billion Yadana gas pipeline is the largest foreign investment in Burma’s history. Built by the US oil giant Unocal and the French firm TotalFinaElf in partnership with the Thai national oil company and the Burmese military, it carries 800 million cubic feet of natural gas a day to a power station in Thailand. None of the power is used by the Burmese people.
The pipeline traverses the largest intact rainforest in Southeast Asia. Described by WWF as ‘one of the richest forest floras of Indochina’, the forest is home to dozens of endangered species, including the critically endangered Asian rhinoceros. Kitti’s hog-nosed bat, the smallest known mammal in the world, the regal crab and the wild Asian elephant are exclusive to this region. The Yadana pipeline has been disastrous for this wildlife. ‘With my own eyes,’ says Ka, ‘I have seen five tigers being killed. With my own eyes I saw different pieces of a leopard which had stepped on a landmine.’ With ill-conceived irony, ‘Yadana’ is Burmese for treasure.
From the beginning the pipeline consortium has shown a disregard for the environment. Four times more money was allocated to promoting measures supposed to mitigate its impact than was actually spent on the measures themselves. Unocal classified the forests along the pipeline as having ‘no canopy’, claiming that the pipeline affects mostly ‘scrub vegetation and degraded forest’. Not pulling any punches, Wildlife Fund Thailand described this claim simply as ‘a lie’. The many troops who have been brought in as a consequence of the project have exacerbated the pipeline’s impact on the previously unspoilt area, logging it heavily and hunting its wild animals. ‘Villagers even told me they had seen one soldier shoot a rhinoceros,’ says Ka.
As well as desecrating one of Asia’s last unspoilt tracts of jungle, the pipeline is associated with some of the most appalling human rights abuses. According to Ka, the military has relocated entire villages that stood in the pipeline’s path, forcing the villagers to work as near slaves on the project. Many, he tells me, have lost their lives. As well as living in constant fear of the soldiers, there is the ever-present threat of the landmines that surround Yadana, buried to defend it from attack by the resistance movement. To protect themselves from the landmines, the soldiers make their civilian porters walk in front of them.
Do Unocal and Total know the pipeline is protected by landmines, I ask Ka. ‘They should know. They can’t not know,’ he replies. ‘We have told them ourselves, and also many, many porters have stepped on landmines. Porters are getting blown up all the time. They will say they don’t know to the media, of course, but they are lying.’
When Redford returned to the US for her final year at college, she felt increasingly alienated from her corporate-minded fellow students. Aside from catching malaria and falling in love with Ka, however, she had found a way that she could help the Burmese people. The title typed on the front page of her law-degree thesis provided the answer: ‘Using the Alien Torts Claims Act: Unocal vs Burma’.
The Aliens Tort Claims Act (ATCA) is an obscure provision in the US first Judiciary Act, signed by George Washington in 1789. Almost forgotten for the next 190 years, its potential for use in human rights cases was unearthed in 1979 by New York lawyer Peter Weiss, who was attempting to stop a Paraguayan torturer being deported from the US.
Weiss discovered that the ATCA enables victims of human rights violations committed abroad to sue for damages in US courts. Following his successful case, the ATCA began to be used against numerous human rights offenders, including former Filipino dictator Ferdinand Marcos and former Bosnian Serb leader Radovan Karadzic.
At the same time, lawyers began trying to apply the act to abuses committed not by individuals, but by corporations. Suits have since been filed against ExxonMobil, ChevronTexaco, IBM, Ford and a host of other US corporations. None of them, however, has ever made it to trial.
Nonetheless, Redford’s thesis argued that, armed with Ka’s many testimonies, it might be possible to bring Unocal to court. (Total was not targeted because the company does not have sufficient US operations to be tried in a US court.) In 1996, less than a year after her paper had been graded A, she and Ka formed EarthRights International, married in Thailand and filed their case in a US court. Four months later, in a landmark decision, the US Federal District Court rejected Unocal’s motion that the case should be dismissed and ruled that Doe vs Unocal could proceed.
Just as Ka is not his real name, so no one called Doe is called involved in Doe vs Unocal. In the US, when a plaintiff’s identity needs to be protected for their safety, the names given are ‘John’ or ‘Jane Doe’. On this occasion there is not one John or Jane Doe, but 15.
Jane Doe I testified that after her husband, John Doe I, attempted to escape the forced labour programme, the soldiers shot at him and threw her and her baby onto a fire. This resulted in injuries to her and the death of the child. Jane Does II and III testified that while working as forced labour on construction projects related to the pipeline, they were raped at knifepoint by soldiers supervising the work. ‘When the pipeline came it destroyed our lives,’ said Jane Doe 2. ‘We lost our homes. We lost our livelihood. We lost everything.’
Most importantly, the plaintiffs allege that Unocal’s conduct has given rise to liability for these abuses. Significant amounts of evidence have been presented that Unocal knew forced labour was being used and that it was wholly aware of the record of the Burmese military. In a letter to the company in 1995, a Unocal consultant wrote: ‘Based on my three years of service in Burma, my continuous contacts in the region since then, and my knowledge of the situation there, my conclusion is that egregious human rights violations have occurred, and are occurring now, in southern Burma. The most common are: forced relocation without compensation of families from land near/ along the pipeline route; forced labour to work on infrastructure projects supporting the pipeline; …and imprisonment and/ or execution by the army of those opposing such actions… Unocal, by seeming to have accepted [the junta’s] version of events, appears at best naive and at worst a willing partner in the situation.’
‘They are in big trouble,’ says Ka. ‘But it is David and Goliath. They have so much money and power. We have nothing. They keep trying to postpone the process of the lawsuit. But they know they are not going to beat us. They know this is not going to go away by postponing it. Even if we don’t have money, we will still find a way to survive. For them it’s $500 an hour for their lawyers. It’s ridiculous. If we could give $500 a month to our lawyers, our lawyers would be so happy. We can’t.’
In fact, Ka’s lawyers are working for free, taking on this case in their spare time. It is now eight years since the case was first filed. No longer is it just 15 Jane and John Does versus a Californian oil company. The case has caught the attention of the media, corporations the world over, and, since 2002, the multinationals’ most powerful friend: the US government.
Why? ‘It has the potential of establishing a real cost for companies that do business with repressive regimes,’ explains economic-sanctions expert professor Kenneth Rodman. ‘If a credible threat of lawsuits poses the potential of multimillion-dollar damages and also gives cold feet to investors, it will change human rights from a matter of conscience, or a matter of social responsibility, to a matter of the bottom line.’
No wonder Bush and the corporations that support him are now doing everything in their power to get the ACTA repealed. In May 2002 US attorney general John Ashcroft weighed into the Unocal case, challenging the validity of applying the ATCA to the way corporations behave in foreign lands, arguing that it would hurt US relations with governments that assist in the war against terrorism.
Then in April of this year the powerful US trade lobby the National Foreign Trade Council took out a full page in the New York Times. The group, which is funded by the likes of Exxon, Halliburton and Bechtel, asked: ‘Suppose a foreign country engages in human rights abuses against its own people. Should corporations that happen to do business there be held liable?’
If they profit from those abuses, thinks Ka, then yes. ‘The way US corporations behave around the world is worse than terrorism,’ he argues. ‘Because of the corporations’ behaviour a lot of people hate the citizens of the US. Normal Americans do not deserve the hatred of the people of the world because of their corporations’ behaviour. Without this law, you cannot hold corporations accountable and they will do whatever they want; especially in countries like Burma.’
The issue, as Ka and Redford see it, is simple. A corrupt regime like Burma will not take a US corporation to court if it violates human rights and causes environmental degradation; not if it is paying the regime handsomely enough. The only place, therefore, that you can challenge such behaviour is in the corporation’s home country. This is what makes the ATCA such a powerful tool. ‘In every country’s constitution there are many laws that favour corporations,’ explains Ka. ‘But there is one, just one in the US, that holds them accountable. It is our only tool.’
Ka can no longer live in Burma. But he is kept informed of what goes on there by a network of undercover Earthrights workers. When they hear something he needs to know they contact him and he returns briefly, smuggling himself across the border and hiding out in the jungle. Everyone involved is risking their life.
‘One of my colleagues was caught by the military last year,’ Ka says. ‘They tied him to a tree by his hands, gathered the whole village, and said, ‘if you do like him, you will die like him’. They sliced him, put chillies and salt in the cuts, and then left him for a day.’ He tightens his eyes slightly, wincing at the memory – one of many that still haunt him. (He can no longer bear to go on demonstrations: they are too painful a reminder of his experiences in Burma).
Today Ka lives in Tacoma, Maryland, with Redmond and their two children. Although he owns a lap-top now, rather than just a dictionary as in his days in the jungle, his acquisition of some of the trappings he aspired to as a teenager and the many awards he has won for his human rights work have not dimmed his focus. ‘I barely eat. In my office I only wear shorts. I bought these pants many years ago.’ He squeezes the material of the cheap suit trousers he is wearing. ‘I only wear them for this type of occasion.’
The occasion is the Whitley Award, awarded in recognition of his and Earthrights’s work in defence of human rights and the environment. Accepting the prize in the evening, there are tears in Ka’s eyes as he says: ‘Every day, from my country of Burma to the Amazon rainforest in Ecuador to the Niger Delta in Nigeria, we learn of new threats to the defenders of human rights, indigenous people and the environment, and we also learn of brave people who continue fighting even in the face of these serious threats. My organisation will use this award to support these defenders.’
Where, I ask him, does he find his courage. ‘I have no courage,’ he laughs. ‘The only thing that gives me courage is the blood of the Karen people and the images I have seen. The mountains of teak wood cut down, the tigers blown apart because they stepped on a landmine, the many slaughtered people: that becomes my courage. But, really, courage is the wrong term for me. For me it is more, if I don’t do it, who will?’
Jeremy Smith is the deputy editor of The Ecologist
Sign the campaign letter calling on Bush to end his attack on the Aliens Tort Claims Act at www.notortureforprofit.org/petition
This article first appeared in the Ecologist July 2004
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