Protesters in Dawei hang a wanted poster for Senior General Min Aung Hlaing in May 2021. (Dawei Watch / AFP)

The fight against the military heats up in the courtroom

By FRONTIER

At the Ye Kyi Ain interrogation centre in northern Yangon, detainees are blindfolded, handcuffed and repeatedly beaten. Some are even forced to kneel for hours on blocks of ice, burned with cigarettes and threatened with rape.

“In my imagination, you know [I thought] I could die. It’s so painful. Because I was handcuffed, the lower part of my body, my back, shoulders, I couldn’t feel it anymore – only pain,” said Ko Nathan Maung, editor-in-chief of Kamayut Media. “I don’t even have the words to describe that.”

Maung, who is an American citizen, was detained in March last year and was one of many political prisoners sent to Ye Kyi Ain where he was tortured for eight days straight. The first three days he wasn’t even given food and water.

He was arrested alongside Kamayut co-founder Ko Hanthar Nyein, who remains in jail and was given an even harder time. “The soldier asked him to sit on the ice block for many hours and they beat him,” remembered Maung. 

“They asked him to take off his shirt and pants and threatened to rape him if he didn’t give up his phone’s PIN [personal identification number]. He finally gave up the PIN number, but after they accessed the phone, they found photos of Hanthar with [activist] Min Ko Naing and Aung San Suu Kyi and they beat him so badly.”

The interrogation centre and the tactics used to torment detainees predates the military coup, but for the first time, those responsible for the widespread torture at Ye Kyi Ain may have to face a court of justice.

On June 1, Turkish authorities announced that they were opening an investigation into atrocities carried out at the interrogation centre. The landmark decision marks the first time that a national court has accepted a case against the military regime for crimes committed since it overthrew the civilian government in February of last year.

The case was introduced by the Myanmar Accountability Project, an organisation working with civil society groups to build criminal cases against junta personnel. It was permitted in Turkish courts under universal jurisdiction, a legal principle which allows national courts to try crimes committed outside the country if the actions are believed to have violated international law. As of 2012, Amnesty International reported that 163 United Nations member states follow universal jurisdiction – as of 2022, there were universal jurisdiction cases ongoing in 16 countries.

The advantage of a universal jurisdiction case is that it functions on a person-to-person level, said Mr Chris Gunness, director of MAP. 

“With a universal jurisdiction case there’s personal criminal liability. It is against a human being that’s committed a crime against another human being, so it personalises the human rights issue. It’s a person saying ‘a crime has been committed against me and I want justice’,” Gunness told Frontier.

Beyond reaching a verdict, which often takes time and is difficult to enforce, those bringing forward these cases also intend to sway international opinion and offer victims the opportunity to share their stories.

BROUK president Tun Khin leaves Argentine federal court in Buenos Aires in November 2019. (AFP)

Universal jurisdiction

Universal jurisdiction cases usually begin as a joint effort between a complainant, either an individual or group, and an organisation like MAP that can help to collect evidence and find a national court that will hear the allegations.

MAP’s decision to bring the case to Turkey is part of a greater effort of “strategic litigation” to introduce legal battles in as many jurisdictions as possible, said Gunness. He pointed to Turkey’s previous support for the Rohingya, as well as Turkey’s acceptance of universal jurisdiction cases against authorities in China and Israel.  

The case will investigate the role of 23 individuals “from the most senior to very junior people” responsible for the alleged torture at Ye Kyi Ain, said Gunness. 

Gunness explained that the organisation cast the net wide given that many jurisdictions extend immunity to high-level state officials. Even though the regime has no seat at the United Nations and has struggled to receive any diplomatic recognition internationally, this could protect Senior General Min Aung Hlaing, who declared himself prime minister.

The decision to look specifically at crimes committed at Ye Kyi Ain, when there were so many potential cases to pick from, was also strategic.

“It was a question of finding a very solid case which had very good legal analysis and where we could show that the torture meets the threshold for international crimes in that it’s widespread and systematic,” said Gunness. MAP declined to disclose additional details regarding the case due to security concerns and a confidentiality clause.

While the case in Turkey is the first to look into crimes committed since the coup, it was not the first universal jurisdiction case accepted against military authorities.

In 2019, the Burmese Rohingya Organisation UK, an NGO advocating for the rights of the Rohingya, filed a case under universal jurisdiction in Argentina against the civilian government and military for the alleged genocide of the Rohingya. The case was brought forward by BROUK President, U Tun Khin, and six female survivors of the military’s 2017 campaign of violence, which sent some 750,000 Rohingya fleeing across the border to Bangladesh.

Similar to MAP’s choice of Turkey, BROUK opted for Argentina because its courts had already investigated crimes under universal jurisdiction and the organisation believed that “the people of Argentina support victims of these kinds of crimes,” according to Tun Khin. 

He specifically referenced the high-profile case in Argentina against officials responsible for crimes against humanity under the Franco dictatorship in Spain. The case against the Franco regime was first introduced in 2010 and has barely progressed since, though analysts have pointed to other benefits of the case, namely increased visibility of the systemic nature of the crimes. 

BROUK’s case has also been slow to proceed. An investigation was first launched in May 2020 against military officials and civilian leader Daw Aung San Suu Kyi, who defended the military against allegations of genocide before being overthrown and imprisoned by the generals.

The case was dismissed in July 2021 due to concerns that it would overlap with an ongoing investigation by the International Criminal Court into the potential crime against humanity of forced deportation. The decision was challenged, with Tun Khin and five of the six female survivors testifying to the court in August 2021 as part of the appeal process.

“Soldiers killed hundreds of people. Some women were raped before being killed. The soldiers went on to rape many other women in their village and then burned their homes to the ground,” one survivor of the 2017 crackdown testified remotely, adding that her husband was killed in the violence.

In November 2021, two years after the initial petition, the court finally agreed to open a case against the military. Tun Khin is hopeful that the investigation will wrap up by the end of the year, but the timeline is tenuous and if past universal jurisdiction cases are any indication, it will likely take longer. 

Tun Khin called the hearing a “big landmark day for Rohingya people all over the world”. In his testimony he urged the court to investigate “between eight and 12” military generals, including Min Aung Hlaing and special operations and regional commanders. He noted that, given that the case resumed after the military coup, BROUK shifted the focus away from the deposed civilian government. 

The Gambia’s minister of justice speaks to the press after a hearing at the International Court of Justice in January 2020. (AFP)

Building a case

The first step in any legal case is collecting evidence. However, beyond simply proving that a crime was committed, there needs to be evidence connecting the crimes to a chain of command, explained Gunness. 

For groups like MAP and BROUK, strong evidence requires gathering facts and recording witness testimony, which often includes working with partners like the Independent Investigative Mechanism for Myanmar, a body established in 2018 under the UN to facilitate proceedings for crimes committed in Myanmar.

The IIMM tends to look into crimes that “are particularly egregious” and have large numbers of victims, said Mr Nicholas Koumjian, head of the IIMM. But with so many atrocities in Myanmar, the mechanism often focuses on crimes where it is easier to determine responsibility.

“There are some types of crimes that are harder to link because of the distance of the perpetrators. For example, with an air raid it is very complicated to say what the orders to the plane were and who ordered it,” Koumjian told Frontier. “But there are other crime scenes that are closer to those who might have witnessed and have information about who the perpetrators were.”

While the IIMM is working with BROUK on its case in Argentina, it has yet to be contacted by Turkish authorities to assist MAP, and is working mainly on the ongoing cases at the ICC and the International Court of Justice.

The ICC is a world court with jurisdiction to prosecute individuals for four international crimes: genocide, crimes against humanity, war crimes and crimes of aggression. The ICJ is also an international court focused on the same four crimes, but functions as an organ of the UN and only hears disputes between member states.

Both international courts are currently investigating crimes committed against the Rohingya that were brought forward before the coup. 

In November 2019, The Gambia took Myanmar to the ICJ, accusing Nay Pyi Taw of violating the Genocide Convention, which both countries have signed. Given that the ICJ only hears disputes between states, Myanmar’s representation was put into question following the coup, forcing the court to determine whether Myanmar would be represented by the military or the National Unity Government. Ultimately, the junta was given the greenlight, but legal experts insist this is not tantamount to diplomatic recognition.

Similar to the universal jurisdiction cases, the ICC and the ICJ are slow-moving and the cases have barely progressed since they were first opened.

However, The Gambia’s lead advocate Mr Paul Reichler points to the junta’s ongoing engagement with the court as a promising start. He said that when the case was first introduced, there was a concern that Myanmar would simply ignore the court. Reichler credits this cooperation to the “enormous amount of moral power” wielded by the ICJ. 

“States don’t like to be branded as outlaws. Nobody wants to take the position that they’re breaking the law and they don’t care about it and they aren’t going to do anything about it,” he told Frontier.

Reichler also believes the case may have already influenced the generals, noting that despite continued terrible mistreatment of the Rohingya, there hasn’t been a flare-up of large scale violence since 2017.

But this is a relatively low bar to measure progress, especially when the majority of Rohingya have fled the country and most of those still in Myanmar are confined to camps or their villages. While the ICJ imposed provisional orders on the military in 2020 to prevent genocidal acts, human rights organisations continue to document abuses against the Rohingya, including arbitrary arrests and restrictions on mobility.

The junta’s engagement with the ICJ case also hinges on disputing the court’s jurisdiction. When the court reconvened in February to hear preliminary objections, the junta’s legal team argued that The Gambia did not have the grounds to pursue the case. The court announced that it would rule on the objections by July 22 to determine whether the case will proceed.

But even if the case were to go ahead, this is only one small piece of a much bigger puzzle.

Ms Milena Sterio, a professor of international law at the Cleveland Marshall College of Law in the United States, notes that the ICJ alone cannot be considered an “accountability mechanism” because it is a civil, as opposed to criminal, court.

“The ICJ case is The Gambia, with support of all these other states, suing Myanmar, which isn’t really accountability,” said Sterio. 

“However, if the ICJ were to come out and say ‘Myanmar leaders have violated the Genocide Convention and they have to stop what they’re doing,’ that has tremendous symbolic value and can actually be used at the ICC or in another universal jurisdiction national level court as evidence.”

Given the layers of bureaucracy and procedure in these cases, achieving anything beyond band-aid solutions in both international and universal jurisdiction cases is a constant challenge.

Countries can call on Interpol to issue a Red Notice, a request for law enforcement worldwide to arrest an individual wanted by either a national or international court for prosecution or to serve a sentence. However, this requires the individual to be in a country that has an extradition treaty with the country where they are wanted. 

“The Interpol notice does make it more difficult for the relevant person to travel around. But in Myanmar, the country is shielding and protecting individuals involved and Myanmar is not going to extradite anyone even though there is a Red Notice,” said Sterio. 

Only three Myanmar nationals are listed among the 7,186 active Red Notices and none are wanted for crimes committed by the junta since the coup.

Burned out vehicles pictured following the Christmas Eve massacre in Kayah State in 2021. (KNDF/AFP)

Beyond the verdict

Given the difficulties with enforcement, those working on international and universal jurisdiction cases also take comfort from indirect benefits.

“One of the things that we forget about universal jurisdiction cases is the extraordinary psychological journey. I have seen our client go from being a gibbering wreck who was tortured to being a torture survivor and someone who’s now involved in the advocacy effort,” said Gunness.

Tun Khin similarly noted that the case in Argentina has been empowering by showing that the “Rohingya have a capacity to do something” by directly telling their stories.

But for some of the victims, it’s harder to see the light at the end of the tunnel amid all the administrative hurdles. 

“I want to believe in the judicial system but as a person born in Burma, I’ve never seen real justice in my life. I would prefer [to see a case] within the country where it could be a very quick process but if you hand it over to the United Nations, we won’t see justice until 30 years later,” Maung told Frontier.

Maung admitted the cases can make the international community “consider how to take action against the Myanmar military.”

“The fact that there are cases that get to the heart of the criminality and illegitimacy of the government plays into the debate over recognition,” said Gunness. “There are cases against these people because they are suspected criminals and they should not be holding a seat at the UN.”

Sterio agreed.

“These court cases are trying to establish complicity of these junta leaders for unimaginable atrocity crimes, which could be a powerful argument in favour of saying that they should not be recognised,” she said.

Myanmar’s ambassador to the UN Kyaw Moe Tun, who has remained loyal to the deposed civilian government, has so far been permitted to retain his seat after a deferral in December 2021.

The NUG, a parallel administration appointed by elected lawmakers after the coup, is also in the process of building several cases against the junta. While still in its early stages, the NUG’s Ministry of Human Rights has been working to file a case against the military over the Christmas Eve Massacre in Kayah State, in which over 40 people were allegedly slaughtered by security forces. 

NUG human rights minister U Aung Myo Min told Frontier that the military has committed many atrocities, collecting evidence is a challenge.

“But we chose this case particularly because we have reliable evidence, well-documented and well-stored. We have firsthand evidence like the dead bodies, so this is a strong case,” he said.  

The NUG is also looking to bring forward cases for other crimes committed by the junta in areas like Sagaing and Magway regions, where the military has allegedly committed massacres and mass arson attacks. For these cases, the NUG is eyeing courts in France and Germany where universal jurisdiction is also possible, said Aung Myo Min. 

MAP is also considering France for a case involving money laundering, as well as Indonesia for cases against the junta on crimes against the Chin and Rohingya communities. Gunness said that getting a case through in an ASEAN country like Indonesia would be groundbreaking, especially given the bloc’s secretariat is based in Jakarta. 

Although these international and universal jurisdiction cases are still in the earliest stages and will likely take years to resolve due to their unique challenges, Aung Myo Min noted that those fighting for justice don’t have much of a choice but to look outside of Myanmar for now, given that the junta controls most of the courts in the country.

“The goals are clear – to bring justice to the survivors because their justice is being denied in the domestic judicial system right now,” he said. “It’s not easy, because I’m sure [the military] won’t cooperate. But the message we can give to them is that international action can be taken for justice.”

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