Jonathan Fanton 

1/31/23

It is an honor to be part of the Mroz Institute World Affair Series and to serve on the Institute’s Steering Committee. Thank you Max Kovalov and Dean Johnson for the invitation. I greatly admire the work of the Institute and am enjoying conversations with faculty and students. And I always love coming to the beautiful and vibrant campus of the College of Charleston. 

While I had long admired the work of John Mroz and the East West Institute, I only came to know it deeply when I was asked by the Board to help with its transition from an independent NGO to an affiliate of the other institutions. The active track 2 programs were placed at the Stimson Center while the archives and training activities came to the College of Charleston. 

Hilton Smith, who is here tonight, first proposed the partnership in recognition of John Mroz’s role advising the creation of the School of Languages, Cultures and World Affairs in 2006. John Mroz was here for a conference on diplomacy and transatlantic partnership. We considered several possible homes for the EWl legacy but made the right choice in the College of Charleston. So thank you Hilton. And thank you Karen Mroz for your leadership in keeping John’s vision and accomplishments vibrant, an inspiration for a new generation. 

John Mroz established the East West Institute in 1981 and led it until his death in 2014. Track 2 diplomacy has played a critical role in preventing and containing conflict. It developed the concept of track 2 diplomacy, sometimes called backchannel diplomacy. It is the practice of informal, unofficial contacts between private citizens or groups of individuals on different sides of actual or potential conflicts. It often draws on former political and military leaders who have ties to people currently in power. Differences can be narrowed in those informed backchannel conversations, misunderstandings clarified, incremental steps to build bridges identified. By creating a safe space for high ranking officials- past and present of adversarial powers to talk about contentious topics EWI has contributed to a safer world.  

As Vladimir Ivanov, Director of EWI’s Russia program has said, “John’s favorite undertaking was ad hoc, high level task force meetings including open minded political, military and private sector leaders, sometimes followed by policy reports and public debates, sometimes helping establish sincere unofficial communications between critical decision makers.”

Here are a few examples of what EWI accomplished with Track 2 dialogues. 

• The Task force on New Soviet Thinking helped build confidence for US policy makers in Gorbachev’s reforms
• In The Bratislava Process, EWI hosted Serbian opposition parties in 1999- 2001 to help Serbs develop principles for a broad coalition to defeat Milosevic at the polls. 
• EWI conducted shuttle diplomacy between the 2 main Kurdish parties in Syria 
• It built trust between a core group of Saudi and Iranian experts and developed ideas for cooperation in areas like climate change and people to people exchange. 
• Current work includes dialogue between political parties in the US and China and between military leaders.
• It is also sponsoring worldwide talks on cyber security.

As EWI Fellow Greg Austin said, “Mroz saw collaboration between opposing parties as the only pathway to solving successfully intractable conflicts. If collaboration was not possible, dialogue was essential.” 

I only wish John Mroz were with us today and could turn his attention to the Ukrainian crisis. 

The College of Charleston is now the home of the noble heritage of John Mroz and the East West Institute. Through the Mroz Leadership Institute and LCWA it will train a new generation of leaders committed to Track 2 diplomacy while scholars here explore the impact of this undervalued agent for avoiding and limiting conflict. 

EWI resonates with me personally and its values are central to my life’s work,  

my volunteer work as chair of Human Rights Watch and a member of the Board of the World Refugee and Migration Council, but also my work as President of the New School for Social Research and the MacArthur Foundation. MacArthur makes grants in 60 countries on projects related to conservation and the environment, women’s health, peace and security and human rights and international justice, a set of concerns that over laps with the subjects of your World Affairs series. During my time there, I became close to Kofi Annan and responded to his request to create a commission that developed the norm of The Responsibility to Protect. And I was happy to provide startup funds for the International Criminal Court before state party’s funding was sufficient. 

`Later, I had the honor of serving as President of The American Academy of Arts and Sciences. The Academy was founded in 1780 by John Adams, John Hancock, with George Washington and Thomas Jefferson as early members. 

The Academy’s mission, then as now, was to give good advice to the leaders of our country in building and preserving a strong democracy in pursuit of a more just and humane world at peace. During my time as President, we worked on issues central to the UN’s agenda, including the new nuclear age and gender equality. In our project on New Dilemmas in Ethics Technology and War, and later in our project on Civil Wars, Violence, and International Responses, we partnered with the UN Department of Peace Operations and the UN Department of Political and Peacebuilding Affairs. We also included UN representatives in early discussions about the need for an International Anti-Corruption Court. That is the topic I want to discuss with you today.

Festering at the root of many of the global challenges is the problem of grand corruption. We define grand corruption as the abuse of public office for personal gain by a nation’s leaders. We only need to read the newspaper to see its effects. The COVID-19 pandemic provides an object lesson of how corrupt leaders in many countries are able to enrich themselves by diverting public funds from supporting critical public goods and services, including healthcare, education, and infrastructure.

In his Our Common Agenda report submitted to the UN General Assembly in September 2021, Secretary General Antonio Guterres observed that “There is a growing disconnect between people and the institutions that serve them, with many feeling left behind and no longer confident that the system is working for them, an increase in social movements and protests and an ever deeper crisis of trust fomented by a loss of shared truth and understanding.”

Around the world, corrupt high-level public officials, known as kleptocrats, and their co-conspirators have drawn public ire. Several corrupt governments have collapsed. But in other countries such as Venezuela and Lebanon, mass protests against corrupt regimes have been quelled by state violence, and the brutality of kleptocratic rulers has triggered mass exodus, exacerbating an already serious refugee crisis.

In too many countries, kleptocrats are able to use their influence in a variety of ways to suppress police investigations and the prosecution of anti-corruption cases. In some countries kleptocrats even control the judiciary and operate with impunity. 

It is no wonder that Secretary General Guterres has identified the erosion of public trust as a core issue that needs to be addressed to facilitate efforts to tackle the increasingly complex and interconnected problems facing the international community.

In the Our Common Agenda report, he says that “We will examine how our rule of law assistance can support States, communities and people in rebuilding their social contract as a foundation for sustaining peace. In this vein, it will also be important to accelerate action to tackle corruption, in line with the United Nations Convention against Corruption.”

This is undoubtedly the proper strategy, and we should do everything in our power to support the UN in its efforts. However, grand corruption is particularly difficult to address. Although its effects are often localized, grand corruption depends upon an international network of accomplices and accessories who help kleptocrats launder, hide, and enjoy their stolen assets.

The landmark Panama Papers investigation in 2016, and subsequent reports, have helped shine a light on the shadowy world of transnational money laundering networks that support grand corruption. Kleptocrats prefer to hide their money in countries with strong rule of law, stable institutions, and reliable financial systems. They are attracted to luxury real estate markets where their families and friends can enjoy opulent lifestyles and where their children can attend prestigious educational institutions. 

They hide in plain sight.

The only way to address this state of affairs effectively is to build a coordinated multinational effort, one that responds to instances of grand corruption at home but also has an international reach.

One important proposal, and one that I support wholeheartedly, is the creation of an International Anti-Corruption Court. The IACC was first proposed by US District Court Judge Mark Wolf and is supported by Integrity Initiatives International, an NGO on whose board I serve. Judge Wolf is providing strong and effective leadership to build an international movement behind the IACC. I am delighted he is with us today on zoom and will join me in the discussion that follows my remarks.

When the UN Convention against Corruption was adopted by the General Assembly in 2003, it was a landmark progressive instrument that advanced our understanding of the problem and the need for greater accountability.

The Convention requires the 189 parties that have now ratified it to criminalize the bribery of public officials, the embezzlement and misappropriation of public funds, money laundering, and the obstruction of justice. The Convention also calls on member states to enhance transparency, increase international cooperation, and recover and return the proceeds of transnational crimes of corruption. The Convention has a review mechanism which will complete its second oversight cycle in 2024.

But we already know there is a crucial gap in the international legal framework for combatting corruption: in countries where kleptocrats control the courts and the police, there is no international mechanism for bringing them to justice.

That is why the proposal for an IACC is so important. As a court of last resort, existing outside of local and domestic politics, it would be able to investigate and prosecute anti-corruption cases when national governments are unable or unwilling to do so. 

An IACC would be complementary to the UN Convention against Corruption, the development of national anti-corruption institutions such as the High Anti-Corruption Court in Ukraine, and hybrid national-international institutions like the now-defunct UN Commission Against Impunity in Guatemala IACC is urgently needed for effective implementation of the UN convention. 

The IACC can also help strengthen the capacity of national anti-corruption institutions in a number of other ways. Triple I’s partners who have worked for Indonesia’s Corruption and Eradication Commission and as anti-corruption prosecutors in Nigeria have told story after story of times when they were able to discover evidence they needed through communications with their law enforcement counterparts in places such as the United States. But the formal processes required to obtain and share evidence between countries are too slow and ineffective. By creating more effective mutual legal assistance systems with its member states, as well as with other key nations, the IACC could serve a coordinating function to help national anti-corruption investigators and prosecutors obtain the evidence they need in a more timely manner. 

The Court would be able to work with investigative journalists, whistleblowers, and private investigation firms often employed to trace funds from looted banks and other sources. And it would have the power to prosecute private parties who pay bribes to officials, and not just the officials themselves—an important step in the effort to gather evidence against kleptocrats. Once they have such evidence, the IACC and willing public servants around the world would have greater opportunities to build the capacity to fight corruption. 

An IACC would be especially helpful to nations like Moldova, where democratic change provides a window of opportunity for principled governance. Such countries may have the political will but not the capacity, at least initially, to hold corrupt actors accountable. For assistance, they could turn to the IACC. 

And it would provide an opportunity to improve existing asset recovery and return structures. The Court would have the power to trace stolen funds and recover the proceeds of grand corruption. And its judges would have the power to order either the return or the repurposing of stolen assets in ways that directly benefit victims, including refugees.

There will be a cost to creating an IACC but it need not be great. In any event, the global cost of grand corruption is estimated in the trillions. Global Financial Integrity estimates that developing countries lose ten times as much to corruption as they receive in foreign aid. Compared with the scale of the problem worldwide, the cost of operating an international court can only be considered a valuable long-term cost-saving institution by safeguarding investment, helping to make sure that investment reaches its intended recipients, and streamlining international prosecutions.

The good news is that we have learned a great deal from the experiences of the international courts and tribunals that have been established in recent decades, including hundreds of recommendations provided by the Independent Review of the International Criminal Court, which was chaired by Triple I’s Vice Chair Justice Richard Goldstone of South Africa. The IACC initiative is not meant to replicate pre-existing models of international justice, but rather to improve upon them.

The community of interest in the IACC has grown significantly in the past year. A Declaration of Support for the Creation of the IACC organized by my colleagues at Triple I now has nearly 300 signatories from more than 80 countries. They include over 40 former presidents and prime ministers, more than 30 Nobel laureates, high court judges, cabinet officials, and leaders of civil society, faith, and business communities. Since December 2021, both Canada and the Netherlands have made official foreign policy commitments to work with international partners to create the IACC. Ecuador has more recently joined them in making its support for the IACC public. On African Union Anti-Corruption Day in July 2022, the President of Nigeria said that the fight against corruption has been difficult and that an IACC is needed. Additionally, each of the past two Presidents of Colombia endorsed the IACC and the current President of Timor Leste has as well. Triple I is collaborating with Canada and the Netherlands to identify and recruit a cross-regional group of countries that will commit to working towards the Court’s establishment.

In November 2022, Canada, Ecuador, and the Netherlands hosted ministers from fourteen countries in The Hague to discuss gaps in the international legal framework for combatting corruption and potential solutions, including the IACC. The majority of the ministers present signaled their support for or interest in the IACC. Through Triple I’s advocacy, additional countries are eager to engage with the Canadian and Dutch governments on the IACC initiative. Triple I is also facilitating a growing network of young people and civil society organizations, primarily from countries that struggle with the most acute crises of grand corruption, to call for the Court’s urgent establishment.

If the 189 parties that have ratified the UN Convention against Corruption are, as the Convention’s preamble states, “Concerned about the seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law,” then they should welcome the creation of an IACC that can play a key role in the global tapestry of anti-corruption institutions.

The momentum for creating an IACC is building and I hope there will be an international convention on the model of the Rome convention that gave rise to the treaty establishing the International Criminal Court. A group led by Richard Goldstone is preparing a draft of the treaty. I hope that organizations in the US and around the globe will lend their vocal support to the creation of an International Anti-Corruption Court.

It is now my pleasure to invite Judge Wolf to join me as we open the meeting to your questions and comments. He was appointed to the United States District Court for the District of Massachusetts in 1985, served as its Chief Judge from 2006 through 2012, and is now a Senior Judge. Prior to his appointment in 1985, he served as a Special Assistant to the Attorney General of the United States after Watergate and as the Deputy United States Attorney for the District of Massachusetts. After our conversation we will open the floor to your comments and questions.

This trip report, written February 2020, reflects the challenges and the aspirations for a democratic Myanmar. There was no forewarning of the military takeover that would come within months of our visit. I remain committed to supporting the courageous civil society leaders with whom I met.

Myanmar January 15-26, 2020

Background

My wife Cynthia and I took an Abercrombie and Kent tour of Myanmar which started in Yangon then on to Bagan, a 2 day trip up the Irrawaddy to Mandalay and finally 2 glorious days on Inle Lake. There, we visited villages and met with local artisans working on silver, weaving, cigar making. Earlier we visited a lacquerware workshop. In Yangon, we visited the Shwedagon Pagoda, the most sacred Buddhist site in Myanmar. In Bagan, we took a balloon ride to see the 2,500 Buddhist pagodas and temples the first of which was built by King Anawrahta in 1044. A special treat was seeing a novitiation ceremony, “a coming of age ritual celebrating an aspiring young monk’s first entry to the monastery.” The trip up the Irrawaddy exposed us to rural villages and the lifeline the river plays in transporting timber and minerals, two keys to the Myanmar economy. Mandalay was the last royal capital of the Burma Kingdom and the cultural center of the country. We visited the ancient Teak Monastery, Shwenandaw, which survived World War II bombings. Our two days on Inle Lake were beautiful and peaceful. We saw real life close up. The floating farms and villages on stilts are amazing. 

On either side of the tour, I arranged visits with civil society groups including Free Expression Myanmar, Equality Myanmar, Athan, Smile, the Institute for Strategy and Policy, and the local HRW representative. Of special interest was our conversation with Thant Myint-U, grandson of former UN Secretary General U-Thant. Thant’s recent book The Hidden History of Burma, is a widely read analysis of the way forward for Myanmar given its complicated history. He has led the restoration of his grandfather’s house into a museum and is a leader in preserving historical buildings in downtown Yangon.  

Myanmar is a country of 51.4 million people, twice the size of Germany but smaller than Texas. It has over 100 ethnic groups, the largest of which are Shan, Karin, Kachin, Kayah, Chin, Mon, and Rakhine. Burmese are 68% of the population. The country is divided in 7 states and 7 regions. Yangon is the largest city with 5 million; Mandalay has 700,000. The capital is a new city Naypyitaw, which feels deserted. 90% of the population are Buddhists, 5% Christian, 4% Islamic. The economy is fueled by timber, tin, copper, jade, ruby, rice and other agricultural products. Most foreign trade is with China (38%), Thailand (25%), India (8%), and Japan (6%). 

The British were in control 1824-1948 followed by a challenging period of independence (1948-62) and then military rule (1962-2011).  

Observations

Myanmar is more open than I had expected. Civil society leaders spoke their minds freely. Their organizations are monitoring elections and free expression, have reform agendas on the economy, ethnic relations, social services. Although there is sharp inequality across the country, Myanmar is more modern than I expected: a new airport, construction of new high-rise apartments in Yangon, car dealerships for Volvo, Mercedes, Toyota, technology stores across Yangon. The streets in the places we visited were well paved, electricity widespread, modern hotels and tourist amenities available. 

I felt safe in Myanmar. People of all walks of life are warm and friendly. I think of our boat ride through villages in Inle Lake and the young children sitting in the windows of the stilted houses smiling and waving as we passed by. I am not naive about the poverty, inequality, and still controlled society. But the people impressed me with their resilience, hard work, and openness. I have an instinct of affection for Myanmar that I have not felt so strongly in most places around the world I have visited for the first time. 

With that said, the intellectuals and activists with whom we spoke are to a person disappointed with State Counselor Aung San Suu Kyi. They recognize she faces a daunting challenge of leading a new era when the military is still all-powerful. A constitutional provision prevents someone married to a foreigner from holding the Presidency thus she has de facto leadership though this special position. 

Yet people who supported her in her period of house arrest report she is not accessible to them. And she did not continue staffing key agencies with experts brought in by the last military leader, Thein Sein. Instead, she has turned to old guard bureaucrats who do not challenge her. She is criticized for being narcissistic, even dictatorial, in her interactions with people around her. According to people with whom we spoke, she has not articulated a positive vision for the country and has not reached out to ethnic minorities. The peace process with the key groups in the North has stalled. Nor has she taken a progressive stand on the Rohingya issue. That was clear in her defense of the military in the ICJ at the Hague. As one person told us, “she is not building a cohesive nation. She needs to connect to non-privileged groups like the Shan, Muslims, and other ethnic groups”. 

With that said, most everyone expects her party, NLD, to win the 2020 election. And most of her critics will vote for her. Some observers predict the NLD will lose seats in Parliament as the ethnic parties gain traction. Some think it possible the NLD will not have a majority and will need a coalition. Still most with whom we spoke think her continued leadership is the best alternative and real change will happen only after she retires, perhaps 5 years hence. No one could name a list of possible successors except to express the hope it would be a member of the younger generation.  

Among the people with whom we spoke, there is a mature understanding that it takes time to build a healthy and sustainable democracy. Intellectuals and activists are thinking in at least a 10 year horizon focusing on incremental improvements. Not surprising, the younger generation is more optimistic about the future than their elders who suffer from unfilled rising expectations. The growth of civil society organizations is an encouraging sign. 

Athan (voice in Burmese) was founded in January 2018 to promote free expression through research, advocacy and education. It issues periodic reports on the status of Freedom of Expression. It advocates a revision of the Telecommunications Law which criminalizes defamation which is the key tool the government uses to punish journalists it believes too critical. It has issued reports on how Parliament violated freedom of expression, compiled an inventory of 2019 protests (constitutional reform and labor rights are the top 2 issues), and monitors hate speech on Facebook which is the widely used social media platform in Myanmar. Athan has 17 staff (all under 30) and support from the National Endowment for Democracy and the Netherlands. It is central to a network of 30 civil society organization working on freedom of expression throughout Myanmar. 

Equality Myanmar involves 65 people (not all full time) and works on human rights training throughout Myanmar and helps build a network of local community based organizations. Among the issues it is focused on are forced relocations, domestic violence, forced labor and child soldiers. It aims to mitigate conflict among ethnic communities. It also advocates policy positions, for example, pushing Myanmar to sign the International Covenant on Human Rights. It will participate in monitoring of the 2020 elections. It has support from NED, Norway, Netherlands, and Open Society. 

Another group, SMILE, promotes freedom of religion and ethnic minorities; it monitors hate speech, including rating 2020 campaigns on hate speech. It has support from USAID and the Polish government and a fund of $500,000 a year for 28 staff. 

Free Expression Myanmar (FEM) has a staff of 10-15, a budget of $110,000 which comes from Sweden, UK, US governments. FEM prioritizes gender. It monitors the fate of journalists posting on Facebook with 50% of journalists saying some content has been taken down. Facebook is a key source of information for people living outside of Yangon and Mandalay where there are few print papers and radio is controlled by the government. 

I was particularly interested in learning about a CSO, Yone Kyi Yai (Belief), which aims to train people to be active citizens in a democracy. It works to bring local community leaders together with local government officials to talk about issues like the conditions of roads and access to safe water. At first, it is a shouting match but eventually both sides learn to talk in a civil fashion. This promising institution needs to expand. 

The Institute for Strategy and Policy has 20 researchers and a budget of $400,000 a year provided by NED, USAID, and Sweden. It has a quarterly journal and a quarterly TV show with 13 million viewers and a project “Myanmar 2050: What is the Vision”. Topics for its journal include: the development of civil society, social justice, electoral system reform, the growing influence of China and the future of federalism, all key issues. 

I have introduced the Institute and several other CSO’s to the New School’s Democracy 2.0 project. During the 1980’s the New School had a network of underground seminars in East and Central Europe, Poland, Hungary, Czechoslovakia, and other locations. When the revolutions of 1989/90 opened a path to democracy for the region, our members were hopeful about the future. Now there is backsliding in most of the countries which raises the question of what went wrong? A new project, Democracy 2.0, will be a network of scholars in these countries plus Turkey and India. I think Myanmar would benefit from participation in the project, which seeks to understand the complex and uneven process of building a healthy and sustainable democracy. The naive notion that an election equals democracy needs to be replaced by a more nuanced understanding of how to build the cultural and political prerequisites of a democracy over time.  

Thant Myint-U’s The Hidden History of Burma ends with an epilogue that calls on Aung San Suu Kyi to articulate a comprehensive vision for the future of Myanmar during the 2020 election campaign. Among the key points is the need to find a middle ground between crony capitalism and the neo-liberal faith in free markets. He makes a powerful case that the future of a sustainable democracy in Myanmar depends on reducing inequality. And reinvigorating the peace process with ethnic minorities. In conversation, Thant mentioned other key issues like the direction of relations with China, the need to repair relations with the West, give Muslims greater access to education and public health, repatriate refugees, and resolve the Rohingya issue. 

I asked all with whom we spoke about their advice to the United States in helping Myanmar to a better future. People recalled with great affection Barack Obama’s visit to Myanmar in 2012 and the support that came from the US government. Most people feel the current US administration is at best indifferent, perhaps hostile to Myanmar. People believe that general sanctions over the years have been counterproductive. One thoughtful scholar urged US help to strengthen the education system, expand student exchange programs, support the development of civil society, increase private investment, and limit sanctions. Several advocated targeted sanctions targeting perhaps 100 individuals by freezing their assets and boycotting companies they control like Myanmar beer. Also, they urge requiring US companies active in Myanmar to adhere to high standards in labor rights and protecting the environment. 

The ruling by the International Court of Justice came out while we were in Myanmar. It requires Myanmar “to take all measures within its power” to prevent any further acts of violence against the Rohingya. Myanmar is required to submit regular reports to the Court within four months and thereafter every 6 months. Myanmar’s own Independent Commission of Enquiry (ICOE) found that crimes against humanity were committed in Rakhine “but did not find” genocidal intent. 

Aung San Suu Kyi responded to the ICJ ruling in a letter to the Financial Times basically saying Myanmar’s own investigation had found evidence of “killing of civilians, disproportionate use of force, looting of property and destruction of abandoned houses of Muslims.” The right course now, she argues, is to give the Myanmar justice system time to bring those responsible to account. “An informed assessment of Myanmar’s ability to address the issue of violations in Rakhine can only be made if adequate time is given for democratic justice to run its course. Justice can help us overcome distrust, fear, prejudice and hate, and end the longstanding cycle of intercommunal violence. This has always been my goal.”

There was little discussion of the ICJ’s ruling among the people we talked to and her statement seemed to have strong support in the country.

Our 10 days in Myanmar were certainly eventful. Chinese President, Xi Jinping also made his first visit to Myanmar while we were in country to inaugurate 2020 the year of Tourism and Culture between China and Myanmar. It is also expected that China will increase its infrastructure investment in Myanmar as part of its belt and road initiative. China is Myanmar’s largest trading partner with exports to China worth $5.5. billion and imports worth $6.2 billion. The withdrawal of Western support and interest has forced Myanmar to be more dependent on China which is not the surest path to the kind of democracy we hope for. I believe this is a critical moment in Myanmar’s history with the possibility, but not certainty, of a positive evolution towards a more democratic future. There is an appetite among many civil society leaders and intellectuals, especially younger people, for interaction with the West. So I will be advocating that universities, foundations, businesses, civil society groups become more active in Myanmar. I say this with a sense of modesty and realism. The US and other Western nations are not the answer, but rather play a supporting role as the drama of Myanmar’s future unfolds. I think of the young man whose novitation we witnessed. At age nine or so he has a long future ahead and I hope it will be in a more democratic, peaceful, and prosperous Myanmar. I care about Myanmar and its people and I want to help them realize their enormous potential.