A British rights group is suing Myanmar’s junta over allegations of widespread torture since a 2021 coup, frustrated by a perceived lack of meaningful action by the United Nations.
the Myanmar Accountability Project filed the criminal case with the prosecutor general’s office in Istanbul, Turkey, on March 29, basing his hopes of holding the junta’s leaders accountable on the legal principle of universal jurisdiction.
Universal jurisdiction holds that some crimes are so heinous that they transcend any nation and can be tried anywhere. International treaties under its mandate include the UN-sponsored Convention Against Torture. Turkey is one of the signatories.
“Where there is no other meaningful international action … a state party to a convention has a special obligation to act,” MAP director Chris Gunness told VOA.
“The [U.N.] The Security Council is certainly not going to do anything about the crimes against humanity committed inside Myanmar. General Assembly resolutions… are not binding.
A resolution condemning the junta’s bloody crackdown on peaceful protests against Myanmar’s February 2021 military coup was adopted by the General Assembly in June. But China and Russia, the junta’s main arms suppliers, are widely seen as blocking the Security Council from imposing international sanctions and any hope of referring Myanmar’s leaders to the International Criminal Court in The Hague.
“What is that [case] provides a legal process in which there may be liability,” Gunness said.
Myanmar is already on trial at the International Court of Justice in The Hague in a case brought by The Gambia alleging genocide for the army’s treatment of the ethnic Rohingya minority before last year’s coup. The military is also being investigated for the same alleged crimes, which it denies, in Argentina in another universal jurisdiction case filed there by a Rohingya rights group in 2019.
MAP says its case breaks new ground by prosecuting Myanmar’s military in the courts of a foreign jurisdiction for alleged crimes committed since the coup that toppled the democratically elected government.
In a lengthy report released last month, the UN accused the military of systematic human rights abuses over the past year, some amounting to war crimes and crimes against humanity. It says security forces targeted civilians, many of whom were shot in the head, burned to death, arbitrarily arrested or used as human shields and tortured.
The case of torture
Gunness said MAP chose to focus on torture because of the strength of the supporting evidence, although he declined to discuss what it was for fear of exposing alleged victims. He said the case focused on an alleged victim’s stay at a notorious interrogation center called Ye Kyi Ain, but also included evidence from several other victims to prove that the junta’s practices constituted a crime against humanity.
He said the 24 defendants include junta leader Min Aung Hlaing, military security chief Ye Win Oo and the two men who run the interrogation center – Tun Tun Zan and Tun Nay Lin.
A spokesman for the military and junta leaders could not be reached for comment.
The military has denied committing any atrocities since the coup and says it has a duty to ensure peace and security in the face of domestic armed resistance to its rule.
Gunness said he considered filing the case in several countries, but opted for Turkey for a number of reasons: popular sympathy for the plight of the Rohingya; support for last year’s UN General Assembly resolution; a history of cases falling under universal jurisdiction; and its many extradition treaties with other countries.
Gunness said he hoped some of the defendants could be arrested while visiting or transiting one of these countries and extradited to Turkey for trial.
Apart from that, he hopes the case can help further isolate the junta and keep it away from the UN headquarters in Myanmar. Kyaw Moe Tun, who was appointed before the coup, still holds the post and was quick to condemn the coup. The junta has so far failed in its attempt to replace him.
“A state’s democratic credentials and human rights record are increasingly important considerations in the UN’s Credentials Committee, which decides who sits in the General Assembly and to other UN bodies,” Gunness said. “The fact that the junta is accused of torturing and murdering its own people on an industrial scale can only further isolate Myanmar’s military clique in the international system.”
The Istanbul prosecutor’s office has not yet announced whether it will take up the case. He did not respond to VOA’s requests for comment.
‘Better than nothing’
Whatever its chances, universal jurisdiction cases can offer an antidote to impunity when countries like Myanmar refuse to recognize the ICC and allies on the UN Security Council, like China and Russia, oppose their removal, said Linda Lakhdhir, Asia Division legal counsel for Human Rights Watch, a US-based rights group.
And even if the defendants never end up in the dock, she said, “A jurisdiction like Turkey that takes this case and hears it sends a signal to Myanmar that their actions are being scrutinized and considered worthy of this.” type of examination.
Universal jurisdiction, in principle and in practice, has its detractors.
In practice, it matters that the country dealing with a case is seen to have honest courts, said Catherine Renshaw, who teaches international law at the University of Western Sydney in Australia and studies Myanmar.
“The idea is that international judicial proceedings must uphold the highest levels of integrity and respect for the rule of law, and that’s what the International Criminal Court is trying to pursue, and that’s one why ICC proceedings are so horribly delayed. But those kinds of safeguards are really what the system is based on, and we cannot guarantee that they are in place in countries like Turkey,” she said.
The Turkish government says its courts are on par with the best in the world, but it is often accused at home and abroad of using them against critics and political opponents.
Renshaw said victims may also view prosecutions abroad as poor substitutes for justice denied at home, especially when those who find themselves in the grip of a foreign court are among the least responsible, such as this has happened in some universal jurisdiction cases.
Even if Turkish courts take up the case, she said the defendants are unlikely to be there anytime soon and the case may not shed much new light on the alleged torture without their testimony.
the Independent Investigative Mechanism for Myanmarset up by the UN in 2018, is already at work collecting evidence of “the most serious international crimes” committed in the country before the coup and since.
“What universal jurisdiction is supposed to provide is a degree of justice, which is better than nothing, but I wonder if victims really feel the same way about that,” Renshaw said.
“The biggest worry you have about this is that it gives hope to victims and people in Myanmar that justice is on the way and the reality is a much paler kind of justice than they might expect. ‘expect.”