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 Andrea Maria Pelliconi and Francesca Sironi De Gregorio

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.