The Asia-Pacific Journal | Japan Focus

Volume 20 | Issue 18 | Number 6 | Article ID 5756 | Oct 30, 2022

Human Rights ‘Fact’ Production and Why It Matters:
Myanmar as a Case in Point
Ken MacLean

Abstract: Ken MacLean’s Crimes in Archival
Form (University of California Press, 2022)
explores the many ways in which human rights‘facts’ are produced rather than found. Using
Myanmar as a case study, the book examines
the fact-finding practices of a human rights
group, two cross-border humanitarianagencies, an international law clinic, and a
global campaign led by a nongovernmentalorganization. Foregrounding fact-finding in
critical yet constructive ways prompts overdue
conversations about the possibilities and limitsof human rights documentation as a mode oftruth-seeking. In raising these issues, the bookcalls on practitioners and scholars alike to be
more transparent about how human rights‘fact’ production works, why it is important,
and when its use should prompt concern.

Keyw ords: Myanma r ; Human R i g h t s;
Advocacy; Fact-Finding; Archive

Figure 1: Cover Ken MacLean’s Crimes in
Archival Form: Human Rights, Fact
Production, and Myanmar, published by
University of California Press in 2022.

Human rights fact-finding, as conventionally
understood, entails the objective determinationof what transpired, who bears responsibility for1

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APJ | JFand constructivist ones as politically biased atbest. Conversations about ‘fact’ production arethus urgent in our contemporary moment,
given that perpetrators of large-scale humanrights violations exploit misinformation,
weaponize disinformation, and employ outrightfalsehoods, including deep fakes, to undermine
the credibility of those who document abuses
and demand accountability.

it, and what actions are recommended in
response. But how answers to these questions
are reached rarely receives critical reflection,
except in the form of informal conversations
among practitioners. The neglect of theseissues is unfortunate because close attention to
the investigative decisions made, the field
methods employed, the analytical practices
utilized, and the advocacy strategies mobilized
demonstrates both how ‘fact’ production occurs
and why it matters to human rights ‘truth’
claims.

To offer one contemporary example unrelated
to Myanmar, the Russian Government has
persistently used disinformation to generate
foreign support for its ‘special operations’ in
Ukraine. Russian efforts include fake news
reports to delegitimize Ukraine as a separate
nation and legitimate independent state. These
have included claims of Ukrainian and NATOaggression, of the threatened use of biologicalweapons against Russia in the form of a ‘dirty
bomb’, and of acts of genocide against Russianspeakers in the Ukrainian region of Donbas.
The US Department of State has since
published educational guidebooks as a
response to Russian disinformation, Twitter has
blocked all Russian ad campaigns, and theEuropean Union has instituted an EU-wide banon the Russian state-sponsored RT and Sputnik
news channels (Wikipedia 2022). Considering
this case and many others around the world,the UN Human Rights Council has also issued a
new resolution on disinformation andauthorized a high-level panel to develop a morecomprehensive human rights–based responseto this global epidemic (Article 19 2022).

Myanmar is the geographic focus of my latest
book, Crimes in Archival Form: Human Rights,
Fact Production, and Myanmar (MacLean2022); however, my arguments are far fromlimited to that country. Sociologist Howard
Becker, in a recent work on the philosophy ofknowledge, makes an important point that
supports my contention: ‘The word accepted in
accepted fact reminds us that the evidence has
to convince someone of its validity, its weight,
to become evidence’ (2017: 5). Persuasion, inother words, is an inescapable element of
human rights documentation from the very
start. Becker’s point is a useful reminder thatthe issue is not information per se that matters,
but rather ‘what kind of information, producedby whom, and authorized by what symbolic andmaterial powers that make it persuasive’(Becker 2017: 5). Or, to restate the point morebluntly, as put forward by human rights
philosopher Frédéric Mégret: ‘Facts areargumentative practices’ (2016: 38).
For these reasons, a process-oriented accountof ‘fact’ production is needed to better
illustrate the interplay between what happenedin empirically verifiable terms and what isinterpretatively said to have happened. Theinterplay, which can at occur at several
different moments in the lifecycle of a humanrights ‘fact’, consequently disrupts
conventional understandings that sharply
distinguish positivist approaches to humanrights documentation as being inherently ‘true’

Collecting Evidence and Dissecting
Narratives
How should we undertake such a processual
approach? In my view, efforts to document how‘fact’ production occurs and why it matters in
epistemological, methodological, ethical, andlegal terms require a double movement. First,
one must tell the story as presented by the factfinders, the analytical specialists who assist2

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(UNHCR 2022). Myanmar is not party to theRome Statute—which authorizes the ICC toprosecute the international crimes of genocide,crimes against humanity, war crimes, and thecrime of aggression—but Bangladesh is, whichgave the ICC legal standing to hear the case asforced deportation inherently is a transbordercrime. While the military regime has not
permitted ICC investigators to carry out factfinding missions inside the country, the prima
facie evidence that such crimes occurred
during what the military termed ‘clearance
operations’ is both compelling and convincing.
Observers are thus optimistic that a guilty
verdict will be handed down once the trial has
run its course. In contrast, the ICJ case is far
more complicated because it involves the
charge of genocide. Proving the crime of
genocide has a very high evidentiary bar. Most
fundamentally, the crime requires proof ofmens rea—that is, the demonstrated intent todestroy a group either in whole or in part as
defined in the 1948 Convention against
Genocide. The military regime’s efforts to havethe ICJ case dismissed failed in August 2022, so
the legal proceedings will continue to move
forward. But, as with the ICC case, it will likely
be years before we have a court judgment. The
proverbial wheels of justice turn slowly.

them, and those involved in advocacy efforts.
Such stories are outwardly linear: they have a
beginning, middle, and end—one that
culminates in recommendations often couchedin the language of international human rights,
refugee, and/or humanitarian law. Second, onemust also unwrite these same stories toillustrate how the tactical use of quotations,
enumeration, narrative devices, citations, andredaction, among other techniques, fashioned
the findings for different audiences (forexample, diplomats, courts of law, public
opinion, and funders).
To offer an example, satellite images are notstraightforward photographs taken from space.
On the contrary, the images are analyticalproducts. That is, the visuals do not ‘speak forthemselves’. Rather, they must be spoken for.
In legal settings, this means that the satellite
expert must explain why they chose one type ofactive or passive sensor over another. The
expert must also testify as to why they selecteda particular set of images for comparison overtime; how they assessed what the content
differences between them allegedly indicate;
how they managed version control (forexample, file, imagery, and data updates); andhow they reached their final conclusions. In
short, they must disaggregate the ‘fact’
production process and justify their decisionmaking, which may then be subject to crossexamination in an adversarial setting like a
courtroom.

In the meantime, the UN’s Independent
Investigative Mechanism for Myanmar (IIMM),
which began its work in September 2018,
continues to inform both legal efforts. Createdby the UN Human Rights Council and locatedin Geneva, the IIMM does not have its own
police force, prosecutors, or judges; its staff
instead comprises a small team of country andsubject-area experts. Due to lack of access tothe country, the IIMM has devoted significant
resources to the collection and analysis ofhuman rights ‘facts’ circulating outside thecountry. As of August 2022, the IIMM archive
reportedly contains more than 3 million of what
it terms ‘information items’. The items include
interview statements, videos, photographs,
geospatial imagery, as well as social media

My points about ‘fact’ production are not solely
academic ones. Human rights ‘fact’ production
has real-world implications. For example, boththe International Criminal Court (ICC) and theInternational Court of Justice (ICJ), which is a
UN body, have adopted legal approaches toseek criminal accountability regarding
Myanmar. The ICC has charged high-ranking
military and government officials with alleged
crimes against humanity for the forced
deportation of more than 700,000 Muslim
Rohingya to Bangladesh during 2017–18
3

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posts of various kinds, along with other types ofunspecified
documentation.
Suchcontemporaneous efforts, particularly
regarding social media, are critical due to theephemeral nature of posts, especially where
overzealous content moderators are concerned.
Facebook—to provide a well-known
example—failed to detect and take down antiRohingya hate speech before the widespreadand systematic attacks on that group. In
response, Rohingya refugees in the United
Kingdom and the United States filed a classaction lawsuit against Facebook in 2021,
demanding US$150 billion in damages for theharm its alleged failure in this regard caused(Milmo 2021). Facebook, however, continues toresist calls by IIMM investigators to hand overmaterials it later removed from its platform on
privacy grounds (McPherson 2021).

part of this list are contested or remain
unsettled—especially at the ICC and ICJ levels.
Admittedly, it is necessary to keep the content
of the case file secret until elements of it are
submitted as evidence at future trials. (The
IIMM has taken this to extremes, however. A
colleague who spoke with a couple of IIMM
team members was not allowed to take a photoof the outside of the building in which theywork reputedly for security reasons.) But there
is no compelling reason the IIMM cannot
disclose the architecture of its archive, such asits collection protocols, verification procedures,organizational logics, data management
systems, and so on. The architecture matters
not just for credibility purposes. Archives
possess an important ‘historiographic functionin addition to a preservationist one’, as Kate
Eichorn (2008: 7) has pointed out. Restated, anarchive’s architecture shapes what kinds ofquestions can be asked about its contents andwhat kinds of histories can be written. If nofurther details are forthcoming, it will remain
impossible to identify how the ‘facts’ includedin the case file(s) were fashioned over thecourse of their respective lifecycles and what
this means in terms of their interpretation.

Both the ICC and the ICJ investigations are
ongoing. Consequently, the IIMM archive willcontinue to grow significantly, if notexponentially, due to the continuing flood ofuser-generated content on post-coup violence,
which ranges from indiscriminate attacks on
civilians via airstrikes, mortars, and arson, to
extrajudicial killings, forced labor, torture,rape, and the large-scale forcible displacementof populations. The IIMM for this reason forms
a crucial point of connection between civilsociety documentation, which is investigative innature, and the ICC and ICJ processes, which
are prosecutorial in form.

A Prosecutorial Turn in Human Rights
Advocacy?
Given these high-profile legal efforts and others
before them, some scholars, like Karen Engle(2015), have criticized nongovernmentalorganizations (NGOs) for what they label theprosecutorial turn in human rights advocacy.
As a result of this turn, human rights ‘fact’
production has become increasingly geared
towards satisfying the standards of proof onwhich lawyers insist—a development that hashelped international criminal law further
colonize the field of human rights. I fully
support efforts to hold perpetrators legally
accountable for their crimes. For this reason, it
is important for human rights NGOs to

The IIMM is not the first organization to adopt
such a multi-pronged, social media–heavy
approach to fact-finding. The Syrian Archive
has also generated a collection of similar
magnitude, and it has carefully detailed themethodologies used, which its staff developedwith experts. The IIMM, by contrast, has not.
The IIMM simply notes that its investigative
work is consistent with the UN Charter, rules,
regulations, policies, and good practices,
relevant international law, and jurisprudence,
without noting that many of the items that are4

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understand what qualifies as probative
evidence in legal contexts and what kinds of
documentation are needed for it to be admitted
as such (for example, time stamps, proof of
authenticity, chain of custody, etcetera). At thesame time, the prosecutorial turn has narrowed
what types of abuses are focused on, further
minimizing the importance of social, cultural,and economic rights in the process.

frameworks and procedures provided byinternational criminal law. The process of
decontextualization (the removal of idiomatic
expression and interpretation) followed byrecontextualization (the introduction oflegalistic expression and interpretation)
arguably impoverishes our understanding of
how affected populations understand themeaning of what took place. It does so by
making the recontextualized descriptions
intellectually inaccessible to the people who
experienced and/or witnessed the violations. It
means that we also miss the opportunity tounderstand how non-lawyers conceive of theirrights in ways that may have little or nothing to
do with Western ones, as is arguably the casein Myanmar. Such conceptions are important
for a variety of reasons, particularly where
populations affected by decades of statesponsored violence desire forms of transitional
justice beyond legalistic approaches.

For example, the decades-long effort to end thewidespread and systematic use of forced labor
in Myanmar by previous military regimes
marginalized other aspects of the abuses
associated with the practice. As one fact-finder
put it: ‘The abuse [forced labor] lacks thesensational ring of rape, torture, and mass
killings, yet the implications on the lives of tensof millions of people are nonetheless atrocious’(Karen Human Rights Group 2007: 4). The
practice ‘undermines the livelihoods of wholecommunities leading to complete collapses ofvillage economies; creates large-scale
displacement and refugee flows; and functions
to support the structures of military power’(Karen Human Rights Group 2007: 4).
Contemporary legal approaches thus remain
woefully inadequate for pursuing the people
responsible for large-scale structural violence,
which as this example shows, has cascadingsocial, cultural, and economic effects wellbeyond the physical violence those the direct
victims of forced labor suffered.

Towards New Professional Standards
To close, why does human rights fact
production matter to me? My book wascathartic in many ways, though I did not write
it for this reason. I have long felt uncomfortable
about and sometimes complicit in the morequestionable ‘fact’ production practices that I
analyze in the volume. At the same time, myoverarching goal was not to ‘throw the baby
out with the bathwater’. Documenting how we
document human rights crimes iscritical—especially in the contemporary ‘posttruth’ era. Disclosing what lies behind theconclusions—theresearch
design,methodologies used, analytical decisions made,representational strategies chosen, and soon—strengthens rather than weakens our work.
Doing so will counter critiques that our factfinding conclusions lack an empirical basis bycarefully detailing the processes by which they
were reached. Such details also expand theability of other fact-finders to corroborate

The colonization of human rights by law hasother deleterious effects as well. Fact-finding,which is one way of making the ‘right to truth’
possible, is fundamentally concerned with
documenting ‘what happened’. But ‘what
happened’, when expressed in idiomatic form,
is not always intelligible to influential actors ina position to take action in response to thestated ‘facts’. The cultural specificity of ‘what
happened’ typically needs to be stripped away
to recast separate incidents of violence into
patterns, such as crimes against humanity,
which are then communicated through the5

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whether similar patterns of abuses exist
elsewhere.

Turn to Criminal Law in Human Rights.’
Cornell Law Review 100(5): 1070–127.

This is not to say that human rights fact-finders
should be completely transparent. The
disclosure of important details generally
regarded as essential to establishing credibility
can inadvertently reveal the identity of sources(victims and witnesses) and methods (such as
telecommunications
eavesdropping
capabilities). Nonetheless, much more can bedone to establish more uniform codes, manuals,
and guidelines to help establish widely
accepted ‘at minimum’ professional standards.
As a start, leading organizations, such as
Human Rights Watch and Amnesty
International, could disclose how they train
their own fact-finders; at present, neither does.

Independent Investigative Mechanism for
Myanmar. iimm.un.org.
Karen Human Rights Group. 2007. Shouldering
the Burden of Militarization: SPDC, DKBA, andKPF Order Documents and Forced Labor Since
September 2006. Mae Sot, Thailand: Karen
Human Rights Group.
McPherson, Poppy. 2021. ‘U.S. Court Orders
Facebook to Release Anti-Rohingya Content
Records for Genocide Case.’ Reuters, 23
September.
www.reuters.com/business/media-telecom/us-c
ourt-compels-facebook-release-records-antirohingya-content-report-2021-09-23.

The issues the book raises regarding humanrights ‘fact’ production are not limited to the
Myanmar case for these reasons. They are
relevant everywhere, and it is my hope that thearguments I make will prompt introspection
and constructive debate among practitioners,
policymakers, and scholars alike.

Mégret, Frédéric. 2016. ‘Do Facts Exist, Can
They Be “Found,” and Does It Matter?’ In The
Transformation of Human Rights Fact-Finding,edited by Philip Alston and Sarah Knuckey,
27–48. Oxford, UK: Oxford University Press.
Milmo, Dan. 2021. ‘Rohingya Sue Facebook for£150bn over Myanmar Genocide.’ The
Guardian,6
December.
www.theguardian.com/technology/2021/dec/06/
rohingya-sue-facebook-myanmar-genocide-usuk-legal-action-social-media-violence.

References
Article 19. 2022. ‘UN: Human Rights Council
Adopts Resolution on Disinformation.’ Civic
Space,
5
April.
www.article19.org/resources/un-human-rightscouncil-adopts-resolution-on-disinformation.

Syrian Archive. syrianarchive.org.
United Nations High Commissioner for
Refugees (UNHCR). 2022. ‘Rohingya Refugee
Crisis Explained.’ News, 13 July. Washington,
DC:
UNHCR.
www.unrefugees.org/news/rohingya-refugee-cri
sis-explained.

Becker, Howard. 2017. Evidence. Chicago, IL:
University of Chicago Press.
Eichorn, Kate. 2008. ‘Archival Genres:
Gathering Texts and Reading Spaces.’ Invisible
Culture: An Electronic Journal for Visual
Culture (12): 1–10.

Wikipedia. 2022. ‘Disinformation in the 2022
Russian Invasion of Ukraine.’ Wikipedia.
en.wikipedia.org/wiki/Disinformation_in_the_20
22_Russian_invasion_of_Ukraine
Genocide_in_Donbas.

Engle, Karen. 2015. ‘Anti-Impunity and the620 | 18 | 6

APJ | JFKen MacLean is Professor at the Strassler Center for Holocaust and Genocide Studies, Clark
University, Worcester, MA. He is the author of Crimes in Archival Form: Human Rights, Fact
Production, and Myanmar (University of California Press, 2022). Other recent publications on
Myanmar include: Genocide by Attrition: The Role of Identity Documents in the Holocaust and
the Genocides of Rwanda and Myanmar (Fortify Rights, 2022); ‘Dangerous Speech Cloaked in
Saffron Robes: Race, Religion, and Anti-Muslim Violence in Myanmar’, with Nickey Diamond,included in the Handbook on Religion and Genocide (Routledge, 2021); and ‘The Rohingya
Crisis and the Practices of Erasure’, in the Journal of Genocide Research (2018).

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