German Federal prosecutor declines to investigate Myanmar atrocities

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 on Thursday from Bangkok.

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.

There is no reason to believe that this decision will hamper future universal jurisdiction complaints either in Germany or elsewhere, said Fortify Rights.

“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.

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.”