German Federal Prosecutor dismisses criminal complaint against Myanmar generals for ongoing atrocity crimes
© Yan Naing Aung, February 26, 2021.
The Federal Public Prosecutor General of Germany decided not to initiate an investigation into genocide, war crimes, and crimes against humanity in Myanmar alleged in a 215-page complaint filed in January by Fortify Rights and 16 individual complainants from Myanmar, said Fortify Rights in a statement released today.
The complaint, filed in January 2023 under the principle of universal jurisdiction against senior Myanmar military generals and others, focused on those responsible for committing genocide, crimes against humanity, and war crimes against the Rohingya in 2016 and 2017 and for crimes against humanity committed throughout the country since the Myanmar military launched a failing coup d’état in February 2021.
“The prosecutor’s decision is hugely disappointing,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “We remain confident in the evidence and legal arguments in the complaint, and indeed, the German Federal Prosecutor’s office made clear that its decision was not based on the merits or strength of the evidence.”
The German Federal Public Prosecutor informed Fortify Rights last month that it had declined to open an investigation primarily because of a lack of suspects present in Germany and under the belief that its investigation would duplicate the work that the Independent Investigative Mechanism on Myanmar (IIMM) is currently undertaking.
“When we filed the complaint, we knew that Min Aung Hlaing and others responsible for atrocities in Myanmar weren’t present in Germany. Such presence is not required for an investigation under German law. We didn’t expect this factor to lead the Prosecutor to fully decline any investigation into the evidence presented,” said Matthew Smith. “We know that the IIMM is diligently collecting and preserving evidence, and we expected German authorities to use and leverage the IIMM’s work for future prosecutions in Germany. That is the point of the IIMM. Parts of this decision seem counter to the purpose of Germany’s universal jurisdiction.”
The Federal Prosecutor underscored the absence of Myanmar junta leader Min Aung Hlaing and other named perpetrators in Germany as a decisive factor. However, history has shown that individuals responsible for atrocity crimes often elude custody until political winds and circumstances shift, leading to extraditions, trials, and convictions in courts of law, said Fortify Rights.
Under German law, there are limited opportunities to formally appeal the Prosecutor’s discretionary decision not to investigate or prosecute based on Section 153f of the Code of Criminal Procedure. However, advocates in Germany, such as at the European Center for Constitutional and Human Rights (ECCHR), have recommended reforming the law to enable such reviews.
“While completely disappointing, the Prosecutor’s decision underscores the urgent need for a truly international effort to prosecute the crimes unfolding in Myanmar,” said Matthew Smith. “We’re grateful the Prosecutor clarified that the German government is cooperating with efforts to collect and preserve evidence of crimes in Myanmar and that the Prosecutor’s decision was unrelated to the strength of the evidence submitted. We’ll continue to pursue accountability for the heinous crimes committed in Myanmar, and we’re already working on new strategies with survivors and others to that end. The team at Fortify Rights is growing and is more committed than ever to ending and remedying these horrors.”
Approximately half of the 16 individual complainants who brought their cases to Germany with Fortify Rights survived the Rohingya genocide and Myanmar military-led “clearance operations” in Rakhine State in 2016 and 2017. The other half survived post-coup atrocities in states and regions throughout the country in 2021 and 2022.
Following decades of state-sanctioned bigotry toward Rohingya in Myanmar, this universal jurisdiction complaint represented one of the first efforts to unite Rohingya and other ethnic survivors from Myanmar in their respective efforts to seek justice. The complainants included six women and ten men, including Arakanese (Rakhine), Burman, Chin, Karen, Karenni, Mon, and Rohingya. If the German Federal Prosecutor had opened an investigation and ultimately brought a case, the proceeding would have been the first prosecution to combine the military’s crimes against Rohingya people in 2016 and 2017 with its nationwide crimes following its deadly coup d’état on February 1, 2021.
Two of the complainants in the filing—“M.K.” (not the real initials) and Nickey Diamond—are presently in Germany and had retained German legal counsel for matters related to the complaint.
There is no reason to believe that this decision will hamper future universal jurisdiction complaints either in Germany or elsewhere, said Fortify Rights.
Ongoing crimes with complete impunity in Myanmar include killings, rape, torture, imprisonment, enforced disappearances, persecution, and other acts that amount to genocide, crimes against humanity, and war crimes. In its statement released today, Fortify Rights called on U.N. Member States to “take active measures, including through intergovernmental coordination, to stop these brutal crimes, apprehend those responsible, and hold them to account.”
The evidence collected for and documented in the dismissed complaint will not go to waste. Fortify Rights will share it with the IIMM and other possible outlets—with the permission of the complainants and as appropriate—to ensure its preservation and, when possible, to hold the perpetrators of these heinous crimes to account.
In its statement released today, Fortify Rights noted the Myanmar military’s “longstanding impunity for international crimes, including genocide, war crimes, and crimes against humanity” against “millions of innocent civilians.” The statement concludes that “Fortify Rights is determined to pursue every means possible” to ensure that accountability “happens swiftly and efficiently.”
Covington & Burling LLP, which has offices in Washington D.C., Germany, and elsewhere, represents Fortify Rights.
Additional Details and Background
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.
On January 20, 2023, Fortify Rights and 16 survivors from numerous ethnic groups in Myanmar filed a criminal complaint with the Federal Public Prosecutor of Germany under the principle of universal jurisdiction against senior Myanmar military generals and others for genocide, war crimes, and crimes against humanity. The 215-page complaint and more than 1,000 pages of annexes provided evidence to assist the Office of the Federal Prosecutor with the investigation and prosecution of those responsible for committing genocide, crimes against humanity, and war crimes against the Rohingya in 2016 and 2017, as well as the crimes against humanity related to the military junta’s failing coup d’état launched on February 1, 2021.
On October 11, 2023, the Federal Public Prosecutor informed Fortify Rights that they would not be initiating an investigation into the crimes alleged in the complaint. The Prosecutor’s notice identified two main reasons for not initiating the investigation, neither of which relate to the strength of the evidence submitted. The Prosecutor primarily referred to its discretion over prosecuting offenses under the German Code of Crimes Against International Law. Specifically, under the German Code of Criminal Procedure, section 153f, paragraph 1, the Prosecutor may decline to move forward if the accused is not present in Germany and is not expected to be present in Germany. Furthermore, the Prosecutor also referred to the ongoing efforts of the IIMM and noted that an investigation by German law enforcement agencies would not yield any additional benefits. The Prosecutor specifically noted that Germany has been supporting the investigative efforts of the IIMM.
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