A human rights group has filed a criminal complaint in the German legal system in an attempt to bring Myanmar’s military leadership to justice for genocide, war crimes, and crimes against humanity.
The group Fortify Rights announced today that it filed the 215-page complaint with Germany’s federal public prosecutor general on January 20, requesting that it investigate and prosecute those responsible both for the Rohingya genocide and for atrocity crimes committed since the military’s seizure of power on February 1, 2021.
The complaint was made on behalf of 16 individual complainants from Myanmar, belonging to a representative cross-section of the country’s ethnically diverse population. According to Fortify Rights, around half are survivors of the Myanmar military-led “clearance operations” in Rakhine State in 2016 and 2017. The rest are survivors and witnesses to atrocities carried out by the military since the coup.
“An ethnically diverse and united front of survivors from throughout Myanmar are bringing this case to seek justice and accountability,” Matthew Smith, the chief executive officer and co-founder of Fortify Rights, said in the statement. “Despite international attention and several ongoing accountability initiatives, the Myanmar military still enjoys complete impunity, and that must end.”
The criminal complaint, which also includes more than 1,000 pages of annexes providing evidence for the allegations contained within it, is currently on file with the German prosecutor and has not been made public.
According to Fortify Rights, however, it alleges that the Myanmar military has “systematically killed, raped, tortured, imprisoned, disappeared, persecuted, and committed other acts that amount to genocide, crimes against humanity, and war crimes in violation of the German Code of Crimes Against International Law.” It also claims that senior junta figures “exercised superior responsibility over subordinates who committed crimes, knew about their subordinates’ crimes, and failed to take any action to prevent the crimes from happening and to punish the perpetrators.”
The complainants are requesting that the German prosecutor open an investigation into specific military officials and others who they claim are liable for mass atrocity crimes. It also requests that the German authorities open a “structural investigation” into the situation in Myanmar, “which would uncover numerous other crimes in various locations and affecting other ethnic groups not otherwise covered by the complaint.”
Given the clotted and ineffectual international response to both the coup and the military junta’s campaign of terror against those resisting it, human rights activists have taken to adopting novel legal tactics for bringing leading generals to justice. One of these is the concept of “universal jurisdiction,” which Human Rights Watch (HRW) defines as “the principle that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.”
This is not the first attempt that activists have made to use universal jurisdiction to bring Myanmar’s leading putschists to justice. In late 2019, Rohingya and Latin American human rights organizations filed a criminal complaint in Argentina requesting an investigation of Myanmar’s military leaders for crimes committed in Rakhine State, which an Argentine court approved in November 2021. Other cases have since been filed in Turkey and Indonesia.
Universal jurisdiction first announced itself as a serious avenue of redress in October 1998, when police in London arrested Chile’s former dictator, Gen. Augusto Pinochet, while he was on a trip to the British capital. The police were acting on the authority of a Spanish arrest warrant charging Pinochet with atrocities committed after his September 1973 coup. A British court later rejected Pinochet’s claim that he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.
In the end, Pinochet was ruled unfit to stand trial due to mental incapacity and he was released, but to advocates of universal jurisdiction, the case suggested that the doctrine could act as a meaningful mechanism of international accountability.
Whether it does so in the case of Myanmar is probably unlikely in the short term, given the brute fact of state sovereignty. But as I argued in an article in the November issue of The Diplomat’s monthly e-magazine, that is not to suggest that it is not worth the effort. The accumulation of foreign legal cases will undoubtedly make life more difficult for Senior Gen. Min Aung Hlaing and his cronies. With some luck, it may also bring closer the day that they finally face some kind of accountability.