Criminal complaint against Myanmar junta launched in Germany

25 January 2023
Criminal complaint against Myanmar junta launched in Germany
This screengrab from a UGC video provided to AFPTV from an anonymous source taken on April 4, 2021 shows young displaced children sheltering in holes dug in the forest in Myanmar's Pupun district near the border with Thailand. Photo: AFP

Human rights organisation Fortify Rights and 16 individual complainants from Myanmar filed a criminal complaint with the Federal Public Prosecutor General of Germany under the principle of universal jurisdiction against senior Myanmar military generals and others for genocide, war crimes, and crimes against humanity on 24 January.

The 215-page complaint and more than 1,000 pages of annexes provide evidence to assist the Office of the Federal Prosecutor to investigate and prosecute those responsible for the Rohingya genocide as well as atrocity crimes related to the military junta’s 1 February 2021 coup d’état.

Though it is nearly the second anniversary of the coup and over five years since the Myanmar military’s most egregious attacks on the Rohingya people in August 2017 no individuals responsible for or crimes related to both have yet to be held accountable.

“An ethnically diverse and united front of survivors from throughout Myanmar are bringing this case to seek justice and accountability,” said Matthew Smith, Chief Executive Officer and co-founder at Fortify Rights. “Despite international attention and several ongoing accountability initiatives, the Myanmar military still enjoys complete impunity, and that must end. These crimes cannot go unpunished. Germany’s universal jurisdiction law is a global model for combatting impunity for the worst crimes and providing access to justice for survivors of atrocities no matter where the crimes occur or where the survivors are located.

Universal jurisdiction is a legal principle enabling a state to prosecute individuals responsible for mass atrocity crimes—genocide, crimes against humanity, and war crimes—regardless of where the crimes occurred or the nationality of the perpetrator or victims. Universal jurisdiction is typically reserved for “international crimes,” which are so severe that they represent offenses against the entire international community.

The criminal complaint was filed on January 20, 2023. Fortify Rights is represented by Covington & Burling LLP, which has offices in Germany. The complaint is on file with the German authorities and is not publicly available.

Approximately half of the 16 individual complainants survived the Rohingya genocide and Myanmar military-led “clearance operations” in Rakhine State in 2016 and 2017, and approximately half survived post-coup atrocities in states and regions throughout the country in 2021 and 2022.

The complainants include six women and ten men who represent several ethnicities in Myanmar, including Arakanese (Rakhine), Burman, Chin, Karen, Karenni, Mon, and Rohingya. They include students, scholars, farmers, human rights defenders, businesspersons, former village heads, and homemakers. All the complainants survived or witnessed crimes in Myanmar, and many have since fled the country. At the time of writing, the complainants are located in several countries, including Myanmar, Bangladesh, India, Malaysia, Germany, and the U.S.

Two of the complainants—“M.K.” (not their real initials) and Nickey Diamond—are presently situated in Germany and have retained German legal counsel for matters related to the complaint announced today. They both experienced and witnessed crimes in Myanmar in 2017 and 2021, respectively.

In the complaint, Fortify Rights and the complainants request that the German Prosecutor open an investigation into specific military officials and others who, according to evidence, are liable for mass atrocity crimes. The complaint 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.

In addition to the complainants ’testimonies to the Prosecutor General, the complaint draws on more than 1,000 interviews with survivors of international crimes in Myanmar conducted by Fortify Rights since 2013 as well as leaked documents and information provided by Myanmar military and police deserters and others that shed light on the military’s operations, crimes, and command structures.

According to Fortify Rights, an investigation and subsequent prosecution of these crimes under German law would serve to punish those who have committed the gravest of crimes, prevent future crimes by perpetrators in Myanmar, and signal to other would-be perpetrators in Myanmar and elsewhere that accountability for atrocity crimes cannot be avoided.

As part of this complaint, several Myanmar civil society organizations agreed to cooperate with the German authorities, including the Chin Human Rights Organization, the Karen Human Rights Group, the Karenni Human Rights Group, the Human Rights Foundation of Monland, the Burmese Rohingya Organization U.K, and an organized network of Myanmar lawyers working throughout the country. Similarly, as part of this complaint, prominent human rights defenders from Myanmar and several senior U.N. officials, diplomats, and others have agreed to be resource persons for the German prosecutor in this case. They include U.N. Special Rapporteur Tom Andrews; former U.N. special rapporteurs Tomas Quintana and Yanghee Lee; former Dutch Ambassador Laetitia van den Assum; former Thai Ambassador Kobsak Chutikul; members of the U.N. Fact-Finding Mission Marzuki Darusman and Chris Sidoti; President of Robert F. Kennedy Human Rights Kerry Kennedy; and others.

An investigation and subsequent prosecutions in Germany of the atrocity crimes detailed in the complaint would not duplicate other international accountability efforts underway but would only add to the mounting evidence about the Myanmar military’s crimes, said Fortify Rights. Other efforts include an investigation by the International Criminal Court (ICC), a genocide case at the International Court of Justice (ICJ), and a universal jurisdiction case in Argentina for crimes related to the Rohingya genocide.

The German authorities are well-placed to fill present gaps left by the currently pending accountability mechanisms, said Fortify Rights. In 2019, Fortify Rights began exploring international legal options for survivors in Myanmar to pursue criminal prosecutions under universal jurisdiction. The organization researched and analyzed the feasibility of 16 jurisdictions in Europe, Africa, and South America that provide access to justice for atrocity crimes committed outside their national borders, ultimately deciding to file the complaint in Germany. Under German law, the Prosecutor has the ultimate discretion to bring a case under universal jurisdiction. The Prosecutor should do so in particular when important witnesses to atrocities are present in Germany, which is the case regarding the complaint announced today. German prosecutors are currently conducting more than 100 investigations into international crimes related to other countries and contexts. The Prosecutor General has also undertaken numerous structural investigations into atrocity crimes, which have led to several trials. German courts have heard cases dealing with torture in Syrian prisons as well as crimes by members of Da’esh, including against the Yazidi community.

In January last year, a German court jailed a former Syrian colonel for life for overseeing the murder of 27 people and the torture of 4,000 others at a Damascus detention centre a decade ago.

More recently, the federal prosecutor's office in Karlsruhe opened an investigation into suspected war crimes by Russian troops following the invasion of Ukraine.