Sunday, March 12, 2023

EXCLUSIVE INTERVIEW
'The Seattle Anti-Caste Discrimination Law Is A Historic Win; Still, Long Way To Go': Kshama Sawant

While exclusively talking to Outlook, the Seattle City Council member Kshama Sawant says, 'the reason it is such a historic victory is that it goes directly in the face of Hindu right-wing'.

Seattle council member Kshama Sawant Facebook/Kshama Sawant


ABHIK BHATTACHARYA
Abhik Bhattacharya
UPDATED: 04 MAR 2023 

On February 21, 2023, Seattle became the first city council in the US to add caste to the list of anti-discrimination laws. The leader of the movement and Council member Kshama Sawant exclusively speaks to Outlook’s Abhik Bhattacharya and shares how the movement was built up and what challenges they had to tread through. Edited Excerpts:

What sort of caste discrimination(s) did you observe in the US? What drove you to push for the ordinance?

It is not surprising that South Asian communities outside the US are not aware of the caste discrimination inside our country. But the reality is different. Since our victory, we got to know that caste discrimination is prevalent in other parts of the world as well. Wherever there is a significant concentration of South Asian immigrants, one can see the manifestation of caste discrimination. There are several statistical analyses to endorse the claims. I would like to refer to two studies --- one by Equality Lab and the other by Carnegie Endowment for International Peace that actually drove us to pass the ordinance. These two studies though took different methodologies, they reached the same conclusion that caste discrimination is a significant issue among South Asian workers
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An important component of the Carnegie study is the reference to self-reporting. As an economist, I can also understand that in the case of such studies, one has to come up and self-report the caste discrimination they face. And it is very difficult. There are always fears of repercussions and retaliations. The Carnegie study points out that there is underreporting and the actual statistics seem to be higher than what is documented. These studies, while were the major factors behind the push, in the last couple of years, we also found several tech workers speaking about it, sometimes anonymously. All of the big corporates like Google, Amazon, Facebook, and CISCO have been in someway or other implicated. The recent case of an oppressed caste employee of CISCO in California is a case to the point. All of these worked as the impetus behind the move. Not only that, in Seattle city council we received testimonies of hundreds of workers who told us about the caste discrimination they faced in different fields.

The anonymous letter written by 30 oppressed caste women that were published in the Washington Post also testify to the prevalent discrimination ranging from denying raises and promotions to facing daily insults, derogatory remarks and slurs. They also complained of facing sexual harassment in the workplace.

Do you think this discriminatory practice also pervades among white US citizens through the upper caste/ Savarna networks?

Though we need to have more detailed studies to certainly say it, the opposition we faced in the council may lead us to think that. The major challenge we faced while building the movement came from the right-wing Hindus. And the democratic institutions in Seattle were not interested to move for it. Even we had to build up the movement through political education of the American workers as caste discrimination works in such a way that it becomes a bit difficult to understand its depth. When there is a South Asian upper caste manager under whom a South Asian oppressed caste worker is working, it becomes a double whammy.

If you can tell us more about the ordinance and its implications in Seattle.

Even before we brought in the ordinance, we had Seattle's anti-discriminatory law that outlawed discrimination on the basis of gender, race, sex, sexual orientation and other identities. The law also gives the power to the citizens to sue the corporations if they face any discriminatory behaviour on any of these grounds.

But caste was not a part of that. Now, they can go to the courts if they face any discrimination due to their caste. This is definitely a formidable victory for us but we can’t be complacent. In a capitalistic society courts never side with the workers. To win the battles in the courts, we will need organised movements.

 
Seattle City Council member Kshama Sawant in a conversation with Outlook

Do you find any relation between systematic caste-based discrimination and racial discrimination in the US? Is there any possible unity that you can find among the black workers and lower-caste South Asian immigrants?

This is an extremely important question. Unless there is working-class unity and groups of people facing different sorts of discrimination come together, we cannot think of a journey from capitalism to socialism. Even winning this law would have been impossible had there not been united movements. We had Dalit-led organisations like Ambedkar International Centre, Ambedkar Association of North America, Ambedkar King Study Circle, and Equality Lab who played a very important role. We also had dominant caste Hindus on our side and that’s the kind of unity we need to build. I come from a Brahmin family myself and there are many like us who were part of it. We also got support from Muslims. Sikh Dalits and Ravidasi members from the Vancouver area, Canada travelled such long distances to vote.

We also had the support of Black religious leader Rev. Robert Jeffress who has been for decades fighting for Amazon tax, affordable housing for workers and other working-class issues. He also wrote an op-ed with a Dalit author where they spoke about how the threads of different sorts of discrimination are connected in a class-based society. We will not be able to pass similar sorts of ordinances in other cities unless we come together and unite to eradicate any form of discrimination.

This Saturday, March 4, Socialist Alternative and I are launching a new nationwide movement ‘Workers Strike Back’. And the demands of the programme are exactly the same as you were saying -- the unity of all sections.

What is the response of the Indian population in Seattle and across the US to the matter? Any challenge?

Not surprisingly, as it is in the case of any meaningful progress in a deeply unequal society, we expect opposition from the section of the ruling class. We knew that there will be strenuous opposition from far-right Hindu forces. And there is nothing surprising in predicting it. But Socialist Alternative and I were also warning that Democrats were not with us as well. They are not overtly anti-immigrants or anti-workers unlike the Republican party; still, they are extremely reluctant to fight for anything meaningful. They just want to say empty things.

This kind of law, the reason it is such a historic victory is that it goes directly into the face of the Modi regime-aligned Hindu right wing. This takes a lot of courage to do it and Democrats don’t want to do anything like this. So, we had to be offensive and strategic to win it. As we predicted the opposition from Hindu right wings, we were prepared for it. We told the Democrats that if you say ‘No’, you must know whom you are siding with. You are then taking the side of the far-right Hindu organisations like Vishwa Hindu Parishad and RSS. On the day of the vote, we distributed a leaflet asking, ‘Which side are you on?’.

On the other hand, we got overwhelming support from Arundhati Roy, Noam Chomsky, Amnesty International, United Nations Special Rapporteur on Racism, Sikh organisations, Muslim organisations, Hindus for human rights and even Alphabet., the workers’ union of Google. It was an overwhelming response. We have received outpouring support from different corners of the world.

At a time when disproportionate representation is the reality, what is the way out?

The way out is to fight for the rights of the working-class people. Only a historical understanding of how the change has come about and a united struggle will help us to think of a better society. Our fight will continue against all sorts of discrimination until we reach the goal of a politically, socially, economically and culturally equal world.

 The riddle of a gas cloud that made Iranian students ill

ROBERT KITCHIN/STUFF
A protest against the Iran government in Wellington.

At first, the pupils at Khayyam Girls' School thought it was a gas leak. But as they rushed out of their classrooms on Tuesday (local time) they began falling to the ground unconscious, one after another.

"I had never felt anything like it," said one, who gave her name as Parisa. She had a sudden headache and her body went numb, then everything went dark.

"When I came to, I thought I had died," she added. "I was in excruciating pain. I couldn't breathe and was shaking and people were crying all around me. It was a horrific scene."

For months, during an uprising in Iran which began with demonstrations by women and girls against wearing the hijab, the protesters have never felt safe from the security services.

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The trouble was triggered by the death of Mahsa Amini, 22, in police custody after she was arrested for improper dress. Hundreds of people have been killed in the unrest that followed. Many of the initial protests took place in girls' secondary schools, with teenagers filming themselves removing their headscarves.

Parisa and her classmates were just some of hundreds of victims of a mysterious sickness that has struck girls' schools since then. At first it was suggested school food had been poisoned. Now the authorities are investigating whether gas is being used in some way.

The incident at Khayyam in Pardis, about 17 kilometres northeast of Tehran, was the biggest yet. "We had a feeling they would come for us eventually," Parisa, 15, said. "I never felt safe here. Mothers who had rushed to the school were standing over their children lying on the floor and begging for medical care, but some of them were just standing in stunned silence."

Some of the girls gasped for breath. Others scrambled to reach the ambulances. There have been no deaths, but Parisa said that she still had severe burning in her chest, headaches and breathlessness. Even before the unrest, Pardis had refused to wear a hijab, which got her in trouble often with the police and the school authorities.

"I wish one day women here would be free from threat and they can make the country more attractive just with their hair," she said. "It is quite clear that this is a misogynistic regime and so far its biggest opponents have been women. I would rather die than bring children into this regime."

Morteza Abbaszadeh, an Iranian defence journalist, said the attacks were reminiscent of the chemical warfare used by Saddam Hussein to suppress unrest in Iraq during the 1980s and 1990s.

"There is a worry that this is yet another use of chemical warfare as a retribution against the protest hotspots in Iran," he said. "These incidents are focused on girls' high schools. On some occasions, as many as 20 or more schools were attacked on the same day in different cities. Such a vast and targeted operation requires logistics and authorisation that is possessed only at the highest echelons of the state."

Tests are being carried out to ascertain the agents used, but witnesses all reported smells like mint, fruit and vegetables before feeling unwell.


VAHID SALEMI/AP

Many Iranians blame the government for the attacks.

Wednesday (local time) was the worst single day since the suspected poisonings began. About 25 incidents were reported across the country with 343 girls affected, according to the Human Rights Activists News Agency in Iran.

Ravina Shamdasani, spokesperson for the UN commissioner for human rights, said: "We are concerned about these allegations that girls are being deliberately targeted."

Ahmad Vahidi, the interior minister and a former Revolutionary Guards commander, has been put in charge of the investigation.

The health and medical education minister, Bahram Einollahi, said a "mild poison" had been detected while the country's deputy education minister, Younes Panahi, went as far as saying that the attacks were intentional, but were "not war chemicals".

He said: "The poisoned students do not need aggressive treatment, and a large percentage of the chemical agents used are treatable."

THE TIMES, LONDON

Austria far-right eyes comeback under new hardline leader


Since Kickl, a 54-year-old former interior minister, took over the FPOe in 2021, it now polls up to 29 percent - Copyright Colombian Ombudsman/AFP Handout
Blaise GAUQUELIN

Sunk by a corruption scandal four years ago, Austria’s far-right is rapidly regaining lost ground under its new hardline leader and topping polls in the small Alpine nation.

Freedom Party head Herbert Kickl delighted 300 cheering supporters at an event ahead of weekend elections in southern Carinthia state, setting out his party’s stall.

Besides its trademark opposition to migration, the Freedom Party (FPOe) has been able to tap into voter anxieties over the Ukraine war and inflation, as well as anger over strict Covid-19 measures during the pandemic.

It has also lured back voters from the conservatives, who lost their charismatic leader Sebastian Kurz when he stepped down in 2021, facing a string of corruption accusations.

– ‘Fortress Austria’ –


Since Kickl, a 54-year-old former interior minister, took over the FPOe in 2021, it is polling 29 percent, according to recent voter intention surveys, up significantly from 16 percent won at 2019 elections.

The opposition Social Democrats and the conservatives — whose mandate to govern with the Greens runs until 2024 — lag behind, polling head-to-head at around 24 percent in the country of just over nine million.

While Kickl is not known for close ties with his European counterparts, his virulent rhetoric is typical of other prolific far-right figures.

In last week’s political rally, he accused “political elites” of running a “big programme of uprooting ordinary people”.

He appeared on posters across Carinthia ahead of the polls dressed in a military-green jacket and his trademark stubble and spectacles alongside the slogan: “Fortress Austria — closing borders, guaranteeing security”.

Kickl has also seized on anger over Covid restrictions, including a now-scrapped mandatory vaccination law, to turn the FPOe into an anti-jab party.

“The FPOe was really the only party here in Austria that always sided with us,” said Fabian Nicolasch, a 24-year-old who joined the party in protest at being restricted during the pandemic.

While a folk group plays under electric blue neon lights, the party’s colour, at the rally, Nicolasch also complained about price increases caused in part “probably by the sanctions against Russia” which have made oil and gas “very expensive”.

On Russia’s invasion of Ukraine, Kickl insists on upholding Austria’s neutrality, while his party has criticised EU financial aid to Kyiv and opposes Ukraine’s EU membership aspirations.

At the party campaign event, Kickl taunted Austria’s pro-Kyiv president, saying “he forgets he’s not head of a NATO country”.

– The party’s ‘brain’ –

“Mr Kickl is honest — and sometimes maybe a bit strong in his choice of words — but always great,” said Iris Pirker-Fruehauf, a local FPOe leader.

Kickl, a marathon runner and climbing enthusiast, has long been considered the “brain” of the FPOe and has made his career largely behind the scenes.

After studying philosophy, history, communication and political science, he started to work for the party in 1995.

He shot to national prominence as interior minister, overseeing a controversial raid on the country’s secret service, while the FPOe governed as junior partner in a conservative-led government from 2017 until 2019.

That government fell apart when footage secretly filmed on the Spanish resort island of Ibiza was published, implicating then FPOe leader and vice chancellor Heinz-Christian Strache in wrongdoing.

In the footage, Strache is seen offering public contracts to a woman claiming to be the niece of a Russian oligarch in return for campaign support.

Strache resigned, with his deputy Norbert Hofer taking over the party, until rivalry between him and Kickl ended with the latter taking the helm.

Under Kickl’s leadership, the FPOe “has no limits in trying to capture and strengthen” popular opinion, according to political scientist Johannes Huber.

The conservatives once again could be tempted to work with the FPOe following elections as “Kickl remains the most attractive partner to serve the interests of their constituents,” Huber told AFP.

“In this respect, I would absolutely not exclude that after the next elections, Herbert Kickl could become chancellor,” he said.

Read more: https://www.digitaljournal.com/world/austria-far-right-eyes-comeback-under-new-hardline-leader/article#ixzz7vo7ntqan

 From: Counting the Cost

Can the EU go all electric and ban fossil fuel cars in 12 years?

The European Union plans to halt the sale of fossil fuel cars by 2035 and wants to speed up the switch to electric vehicles.

The manufacture of fossil fuel-powered cars employs millions of people across Europe. But the vehicles account for 15 percent of all carbon dioxide emissions in the European Union.

The EU wants to drastically reduce exhaust fumes as part of its ambitious plans to reach carbon neutrality by 2050 and combat climate change. Petrolheads are now being told to prepare for a cleaner ride.

Elsewhere, profits of global airlines are taking off for the first time since the start of the COVID-19 pandemic.


3867 earthquakes hit Syria since February 6
3867 earthquakes hit Syria since February 6
3867 earthquakes hit Syria since February 6
[04/March/2023]

DAMASCUS March 04. 2023 (Saba)- The National Center for Earthquakes in Syria announced that the number of aftershocks recorded from February 6 to March 3 reached 3,867, between mild and destructive, according to SANA.

The center indicated in its statement that 1,943 tremors of magnitude 2 to 3 on the Richter scale were recorded, 1,502 tremors of 3 to 4 degrees, 378 tremors of 4 to 5 degrees, and 33 tremors of intensity from 5 to 6 degrees, and 4 tremors of more than 6 degrees on the Richter scale, in addition to recording the earthquake, which had a magnitude of 7.5 degrees on the Richter scale, and the large earthquake, which had a magnitude of 7.8 degrees on the Richter scale, pointing out that the rest of the tremors were recorded less than 2 degrees. on the richter scale.

The center indicated that the total number of seismic events recorded during the 36 days from the beginning of the year 2023 until the occurrence of the major earthquake on February 6 is only 34 weak tremors, the largest of which reached 4.7 degrees.

Meta must face trial over AI trade secrets, judge says

Meta lost a bid to end a lawsuit claiming it stole confidential information from AI start-up Neural Magic.
Reuters

WASHINGTON – Meta Platforms lost a bid on Monday (March 6) to end a lawsuit in Boston federal court claiming it stole confidential information from artificial intelligence (AI) start-up Neural Magic.

Meta will have to face a trial over accusations that it took Neural Magic’s “breakthrough” algorithms that enable AI systems to process information more quickly, United States District Judge Denise Casper said.

The court also allowed testimony from an expert who said Meta owes Neural Magic as much as US$766 million (S$1.03 billion) in royalties.

The trial is currently set to begin in September.

Neural Magic was founded by two former Massachusetts Institute of Technology researchers. Its investors include venture capital firm Andreessen Horowitz, VMware, Comcast and Verizon, according to its website.

Neural Magic sued Meta, then known as Facebook, in 2020 for allegedly stealing algorithms that enable simpler computers to run complex mathematical calculations more efficiently and allow research scientists to use larger data sets.

The lawsuit said Meta hired away a Neural Magic computer scientist, Mr Aleksandar Zlateski, who gave the social media giant the algorithms that make up the “heart” of Neural Magic’s technology.

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Neural Magic said Meta published the algorithms on open-source website GitHub and thanked Mr Zlateski for solving a “key problem for Facebook’s continued advancement in the world of artificial intelligence”.

Meta asked the court to throw out the case last year, arguing Neural Magic had failed to identify any protectable trade secrets and that Mr Zlateski had not acquired the information improperly. But the court on Monday allowed Neural Magic’s case to continue for all but one of the 41 secrets that it accused Meta of misappropriating.

Judge Casper granted parts of Meta’s and Mr Zlateski’s request, rejecting Neural Magic’s claims that they violated a non-competition clause or engaged in unfair business practices under Massachusetts law. 

OCCRP Condemns Proposed “Foreign Agent” Bill in Georgia

The Organized Crime and Corruption Reporting Project (OCCRP) is deeply concerned that if this bill is enacted, it could be used to crack down on independent media and civil society.

Protests on March 7 outside Parliament in Tbilisi while lawmakers discuss the proposed foreign agent bill. The signs say, “No Russian influence in Georgia!” and “Georgia will not become Russia!” (Photo: OCCRP)

A new bill in Georgia that passed the first phase of the legislative process on March 7 would force media outlets and NGOs to register as "agents of foreign influence" if they receive more than 20 percent of their funding from abroad. If signed into law, this legislation could have a chilling effect on journalists: Sources might be afraid to speak with them, and funding for media outlets could dry up. Russia instituted a similar foreign agent law in 2012 and used it to put independent media and civil society under increasing pressure until they were effectively obliterated.

OCCRP has three long-standing media member centers in Georgia: Studio MonitoriIFACT.ge, and Journalistic Data Processing Center. All have published  important investigations that serve the Georgian public, as well as contributed to OCCRP’s cross-border investigations.

“It would be nice to think that the passage of this bill is simply a transparency measure,” said OCCRP Editor in Chief Miranda Patrucic. “But we’ve seen this movie before and we know how it ends. All we need to do is look at Russia. The people of Georgia have always fiercely fought for their democracy and freedom of speech, and they deserve better.”

The bill will have to move through two more rounds of voting before coming into force. If it is passed into law, not only will it have immediate and serious implications for journalists in Georgia, but it could embolden other post-Soviet countries to implement laws that stifle media and civil society. For example, both Kyrgyzstan and Kazakhstan are now considering adopting similar legislation.

Nino Bakradze, an investigative journalist and the co-founder of iFact, said even the preliminary passage of the bill was creating a stigma against media outlets like hers.

“The government has already started labeling media and NGOs as spies of foreign countries,” she said. 

But Bakradze noted that there is also considerable public opposition to the idea of a Russian-style foreign agent law.

“Hundreds of thousands stand in the streets of Tbilisi — even as I speak, a protest is taking place in front of Parliament,” she said. “The government has a choice to stop the hearings related to the draft law or delay the process somehow.”

Contact: Communications Officer Lauren Jackman lauren@occrp.org

Another Credit Suisse Client Revealed as Boss of Russian Criminal Group

After last year's revelations concerning Credit Suisse having hosted funds of criminal or illicit origin, more data are surfacing about the bank’s problematic clients - this time it’s the head of a Russian criminal gang, allegedly close to the Russian president.

Credit Suisse ZurichThe Crédit Suisse headquarters in Zurich. (Photo: Wally GobetzFlickrLicense)As late as October 2022, Swiss banking giants UBS and Credit Suisse provided debt security to a Cypriot trust — PTC, whose beneficial owner Gavril Yushvaev was a known founder of Baumanskaya, one of Russia’s three most powerful organized crime groups.

Only recently sanctioned by the Ukrainian government, Yushvaev was previously labeled by the U.S. government as a member of the so-called ‘Putin List’, mainly made of senior political officials and oligarchs.

Yushvaev was described by Forbes as one of Russia’s top 100 wealthiest individuals with investments of over US$100 million in apps such as Lyft. His wealth includes Villa Primavera, located in France’s most exclusive stretch of beach, Saint-Jean Cap Ferrat.

The oligarch has a checkered past: convicted of robbery in the 1980s, he served nine years in Soviet prison camps. An internal investigation report obtained by OCCRP dated 2013 by Spanish police identified Yushvaev as a close associate of now imprisoned Russian mafia boss, Alexander Romanov.

An image obtained by OCCRP shows Yushvaev with known criminal bosses including Oleg Shishkan and Timofey Klinovsky, Yushvaev’s partner in a company, Trinity. The company was previously exposed by OCCRP and Russia’s Novaya Gazeta for illegal activities.

Trinity included a third crime boss: David Yakobashvili, also Yushvaev’s partner in the well-known Moscow casino, Metelitsa, shut down for money laundering. With Klinovsky and other politically exposed people, Yushvaev also co-owned development in a large real estate project in Moscow.

Most of these facts were not a secret at the time UBS and Credit Suisse accepted Yushvaev’s trust as a client.

Although he was using a Cypriot trust, the identity of the Russian-Israeli citizen as a beneficial owner of PTC was not really hidden. Through PTC, Yushvaev held shares in Humacyte, an entity listed with the U.S. Securities and Exchange Commission. In 2021, it publicly merged with another U.S. company involved in biopharma care.

In a written response to OCCRP, Credit Suisse said, "As a matter of law, Credit Suisse cannot comment on potential client relationships.We have stringent control mechanisms in place to combat financial crime related activities and regularly monitor globally imposed economic sanctions with related implementation of necessary controls.” UBS did not respond at the time of publication.

Experts told OCCRP that merely having mechanisms in place is not enough.

 “All regulated financial institutions have due diligence processes to ensure that they are compliant but It’s a cat and mouse game,” said Nick Day, a former MI5 and UK special forces officer. “Corrupt fiduciaries and money launderers are driven to find new ways to trick the system, to put sanctioned or criminal money into the banks.”

Autonomous Weapons Systems to be addressed for the first time in Luxembourg

By EU Reporter Correspondent



On 25 & 26 April, the Minister of Defence François Bausch organizes the Luxembourg Autonomous Weapons Systems (LAWS) conference at Maison des Arts et des Étudiants in Belval (LU). The conference aims to offer stakeholders a forum to discuss military use cases, ongoing work, risks and challenges associated with the use of Autonomous Weapons Systems (AWS).

In 2022, the Luxembourg Government Council established an inter-ministerial working group on lethal AWS. The working group, under the coordination of the Directorate of Defence, intends to develop Luxembourg’s position on AWS. This implies the regulation of the latter at international and, if necessary, national levels; and also guidelines in order to both ensure and attest compliance with these regulations.

“If left unchecked, Autonomous Weapons Systems pose a serious threat and a challenge to society. States and terrorists alike can make use of this technology. That is why Luxembourg has decided to establish a national framework to prevent misuse,” said Defence Minister François Bausch.

The LAWS conference will feature keynotes and panel discussions gathering seasoned speakers from a variety of fields, including military, legal, and technological perspectives. They will explore the ethical implications of AWS and discuss how they could impact international security and human rights. They will further consider possible regulatory frameworks and policy responses to mitigate the risks associated with AWS, aiming overall to identify avenues of reflection for Luxembourg’s position regarding these systems.

“The LAWS conference will provide an opportunity for all stakeholders to discuss the challenges associated with AWS. International experts and government representatives will meet in Luxembourg. To tackle the challenge. To raise public awareness. To exchange ideas.”

On 25 April, the Minister of Defence François Bausch will inaugurate the LAWS conference with an opening speech, followed by Dr. Paul Scharre’s keynote address providing an overview of the subject for public awareness and food for thought on how to tackle the challenges associated with the potential use of such weapons systems. On the second day, panel discussions will dive further into topics such as the status of military application of AWS, the development and regulation of AWS on both national and international levels, as well as the technical and ethical challenges. The panels are composed of experts from civil society, governments, military, NATO, the University of Luxembourg and the Luxembourg House of Cybersecurity.

The conference will offer all stakeholders - including governments, industry, civil society, research institutes and academia - a platform to discuss the risks and challenges associated with the use of AWS.

Open to the public, the hybrid event will be held in English, (French live translation will be available on 25 April). The audience in the room will have the opportunity to ask questions and engage in discussions with the speakers.

For more information about the event and its programme, along with a full list of speakers and the registration details, please visit the LAWS conference’s dedicated website.

 

New universal jurisdiction case filed in Germany for crimes committed in Myanmar before and after the coup: On complementarity, effectiveness, and new hopes for old crimes

Written by  and 

A few days before the second anniversary of the ‘failed coup’ in Myanmar, a case was filed in Germany against senior Myanmar military generals and ‘other actors’ identified in the complaint for genocide, war crimes, and crimes against humanity. It was filed under universal jurisdiction enshrined in the German Code of Crimes against International Law (Völkerstrafgesetzbuch – VStGB) by the Thailand-based NGO Fortify Rights and 16 victims, including ten Rohingya ‘genocide survivors’ and six civilians belonging to other ethnic groups. The complaint requests the German Federal Prosecutor to open a structural investigation on allegations of crimes committed against the Rohingya people between 2016 and 2017, and against other civilians since the coup of February 1, 2021, and is the first-ever to address the full range of allegations to date. This post discusses how this latest initiative contributes to effective justice and accountability.

Other ongoing proceedings

According to the Independent Investigative Mechanism for Myanmar (IIMM), atrocities have intensified dramatically since the coup. However, in a field – that of international criminal justice – that is often accused of being too western-centric, ‘what’s happening in Myanmar’ risks being forgotten. Existing judicial efforts have mostly started in 2019 and focus on pre-coup violence. The International Court of Justice’s proceeding (The Gambia v. Myanmar) and the International Criminal Court (ICC)’s investigation (Bangladesh/Myanmar) are both limited to ‘clearance operations’ perpetrated by the military and other security forces against the Rohingya. The former is further limited ratione materiae to allegations under the Genocide Convention; the latter is limited ratione loci and temporis to  transnational crimes that took place – at least in part – in Bangladesh in 2016-2017. The universal jurisdiction case filed in Argentina concerns allegations of genocide and crimes against humanity committed against the Rohingya in 2017, although Argentinian judicial authorities seem to be also investigating the ‘ongoing genocide’ of the Rohingya who remained in Myanmar. All these cases ignore the violence experienced by other civilians and ethnic groups resulting from the coup – with the exception of the complaint filed in Turkey under universal jurisdiction which, however, is focused on allegations of torture and other crimes against humanity. 

The complaint filed in Germany is therefore ground-breaking: for the first time, there will likely be a criminal investigation on the full range of pre and post-coup allegations. The following paragraphs will discuss the advantages of domestic over international jurisdiction, and of German jurisdiction specifically.

Why domestic jurisdiction

As a general rule, domestic jurisdiction over international crimes is to be preferred over the ICC’s, as the principle of complementarity, underpinning the functioning of the Court, provides for (Article 1 Rome Statute). The ICC’s guidelines explain that, besides prosecution for crimes committed on their territory, states are entitled to investigate and prosecute on the basis of active nationality, passive nationality, or universal jurisdiction (paras. 63 and 75). Therefore, as noted for the Argentinian case, complementarity is not limited to states with links to the crimes.  The General Assembly recently emphasized ‘the importance of conducting … investigations into the most serious human rights violations in Myanmar … in order to deliver justice to victims using all legal instruments and domestic, regional and international judicial mechanisms’, and as matter of principle, domestic universal jurisdiction should be encouraged and indeed preferred.

Domestic jurisdictions also bear practical advantages, starting from their scope. Myanmar does not fulfil any conditions for the ICC’s jurisdiction, neither are they likely to materialise any soon. The ICC had to find a way around jurisdictional limitations by focusing on a limited set of crimes with a transnational element. Domestic proceedings do not face such jurisdictional constraints, and states like Germany can investigate international crimes taking place entirely in Myanmar – including post-coup ones. Moreover, while the ICC has jurisdiction only over Rome Statute crimes, Germany can cumulatively prosecute international crimes and other offences.

A second advantage is effectiveness. Although, arguably, speed and high conviction rates should not be parameters for a Court’s success, the ICC is often criticised for its relative ineffectiveness, partly due to limited resources. Domestic systems can deflect and supplement the ICC’s work and, paradoxically, can sometimes mobilise more resources to prioritise specific, targeted investigations, without the international political pressure that comes with ICC investigations. Previous experience also shows that international prosecutions tend to focus on high-level perpetrators whereas domestic universal jurisdiction ones focus on mid to low-level ‘low cost perpetrators’, because of the higher likelihood and lower political cost of ensuring their presence in the prosecuting state’s territory. Here, identified suspects include high-ranking officials, but also ‘other actors’ whom may be more effectively prosecuted at the domestic level.  

On the other hand, domestic prosecutions are not immune from politics – rather, they are subject to more parochial interests. A criticism to national courts is that their overzealousness to prosecute may lead to biased and selective justice, and lower due process standards, while ICC prosecutions – legitimised by state consent or referral by the Security Council – would be more impartial. While the lack of fair trial argument, if substantiated, would bear some merit, the political one-sidedness one yields to an accountability-oriented view of criminal justice. Domestic systems with universal jurisdiction have the advantage of direct and formal victim participation, as they typically allow victims to file, as in the present case, a complaint which judicial authorities must, at least, consider. Instead, victims can only ‘send information’ to ask the ICC Prosecutor to initiate an investigation, who, compared to many domestic jurisdictions, enjoys a rather broad (and sometimes criticised) prosecutorial discretion. Denying justice to redress-seeking victims for a potential legitimacy conundrum would be a moral own-goal. Domestic jurisdiction appears as the appropriate avenue for justice.

Why Germany’s jurisdiction

Before filing the case, Fortify Rights analysed the feasibility of 16 jurisdictions across the world. There seem to be several reasons for choosing Germany over others.

Member states of the European Union (EU) can avail themselves of judicial criminal cooperation mechanisms such as EUROPOL and Genocide Network, which provide practical, legal and financial support to joint investigation teams, enhancing the possibility of successful prosecutions. Thanks to European Arrest Warrants (EAW), suspects stepping into any EU member’s territory would be subject to a simplified surrender procedure, and crimes within the ICC’s jurisdiction do not even require dual criminality. The EU would not be a safe haven for suspects, as long as at least one state has issued an EAW.  

However, there are other EU states that would be good candidates. In recent years, there has been a resurgence of universal jurisdictions, and with the adoption of the Rome Statute, several countries – including in the EU – updated their criminal legislation and introduced the necessary legal framework to proceed with universal jurisdiction prosecutions. Following an invitation by the EU Council in 2013, for example, France created a Central Office to fight Crimes against Humanity, Genocide and War Crimes; the Netherlands established specialised units; similar mechanisms were established in Sweden, Finland and Denmark.

Over the last few years, however, Germany has been particularly active in universal jurisdiction cases and is currently conducting over 100 investigations. The country applies similar standards to the Rome Statute and the Elements of Crime, and has a solid and well-established system to prosecute international crimes. The VStGB applies also to crimes committed abroad, regardless of the nationality of the victim or perpetrators or any other connection to Germany (§ 1). However, according to Section 153f § 2 of the German Code of Criminal Procedure (Strafprozessordnung), the Prosecutor has discretionary powers to close cases, if no jurisdictional connection with Germany is present or the offence is being prosecuted by an international court or a state that has a stronger link. This does not seem the case here, especially as other current accountability efforts have a way more limited scope.

Germany also offers good prospects in terms of rules on immunity. Functional immunity does not prevent domestic universal jurisdiction prosecution of foreign lower-ranking officials performing sovereign powers, as confirmed by a 2021 Judgment. Higher-ranking officials cannot be prosecuted as long as they are in office, but immunity does not impede investigations or arrest warrants. Although trials in absentia are not possible in Germany, investigations can be conducted to secure evidence and allow for a swift start of the proceedings once the accused enters Germany (e.g. the arrest warrant issued in June 2018 against Jamil Hassan, head of the Syrian Air Force Intelligence). The proceeding could also uncover the role of ‘other actors’. While German law does not allow for criminal prosecution of private companies, structural investigations may expose their complicity in the atrocities and support other accountability mechanisms, including civil litigation. In the tortuous path against the multiple profiles of corporate responsibility in crimes committed in Myanmar, initiatives such as the complaints filed against social media platforms should be advocated for.

The case’s complexity should not, however, be underestimated. The choice of Germany was also incentivized by the recent positive experience of the trials against members of the Islamic State or the Syrian regime, fostered by strong international campaigns, but also by favorable migratory flows that brought both victims and perpetrators to Germany. This is not the case with Myanmar, which clearly poses a major challenge in fulfilling the condition of physical presence of the accused. Moreover, extra-territorial investigations always pose some concrete challenges, complicated by the foreseeable lack of cooperation of the Burmese junta. The IIMM is already facing difficulties in accessing crime scenes, victims and official documents, and getting evidence of post-coup atrocities might be even harder.

Nonetheless, as this analysis shows, Germany remains particularly suited for the job. This complaint launches a clear message that impunity for atrocities shall not be tolerated.

Multiple jeopardy?

One last point to consider is whether starting domestic alongside international proceedings would clash with the prohibition of prosecuting the same persons twice for the same conduct. Would the parallel investigations in Germany, Argentina and by the Office of the ICC Prosecutor trigger ne bis in idem?

It should be noted that this principle only applies in case of subjective and objective identity. Personal identity is confidential and cannot be assessed here, but factual identity is certainly unlikely. Even if the complaints concerned the same type of crimes, episodes and victims would differ – especially for post-coup crimes, excluded from Argentina’s and the ICC’s jurisdiction.

Further, despite its near-universal recognition, the principle typically applies within one jurisdictional system only, while ‘horizontal’ transnational application is limited. Even Article 4 of Protocol No. 7 of the European Convention on Human Rights prohibits double jeopardy within ‘the jurisdiction of the same State’ only. Therefore, the principle would not prevent trial in Germany for the same crimes tried in Argentina.

Lastly, the ‘vertical’ limb of the principle (Article 20.2 Rome Statute) is also ‘diluted’, in that it only prohibits double prosecution for the same statutory crime, but not for the same conduct. In other words, domestic courts are not prevented from prosecuting a person who was already prosecuted by the ICC for the same facts, under a different nomen criminis (e.g. equivalent ordinary crimes). This may be potentially problematic only if the same individuals were investigated for identical conducts under the same qualification. In this remote hypothesis, the German Prosecutor may decide to bifurcate the proceedings and continue to investigate post-coup events, which certainly are outside the ICC’s radar.

Conclusion

Fortify Rights’ approach of combining two different, although related, situations into one single investigation has the merit of highlighting the full range of criminal allegations against the military in Myanmar. The complaint also clearly represents a positive shift in overcoming the traditional division and stigmatization among different ethnic groups, as the cooperation of the diverse yet united front of complainants shows. Domestic universal jurisdiction should be encouraged as an effective means for delivering international criminal justice, and Germany seems a very strong candidate. Even if lodging the complaint will likely not stop the junta’s terror campaign on its own, it is a fundamental step toward reinforcing international attention over the ongoing atrocities in Myanmar and putting an end to impunity.