Matthew Smith on the Struggle for Accountability in Myanmar

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Matthew Smith on the Struggle for Accountability in Myanmar

“If we can’t envision a day when Min Aung Hlaing is in custody and facing prosecution, then it won’t happen.”

Matthew Smith on the Struggle for Accountability in Myanmar

Rohingya refugees huddle inside a makeshift shelter in southeastern Bangladesh on September 10, 2017, after fleeing the Myanmar military’s “clearance operation” in Rakhine State, Myanmar.

Credit: Depositphotos

Earlier this month, Fortify Rights, a human rights advocacy group focused primarily on Myanmar, marked its 10th anniversary. During its first decade, the organization has documented the human rights challenges in Myanmar, including the military’s vicious ethnic cleansing campaign against the Rohingya Muslims of Rakhine State in the country’s west, and the atrocities that it has committed since the coup of February 2021.

Matthew Smith, the co-founder and chief executive officer of Fortify Rights, spoke with The Diplomat’s Southeast Asia Editor Sebastian Strangio about a decade of advocacy in Myanmar, Asia’s human rights landscape, and the role of accountability in Myanmar’s future.

First off, tell me how Fortify Rights got started. What prompted you to begin work on Myanmar in 2013, a time of rapid political and economic changes in the country? How did your approach differ from the many other groups working on human rights in the country?

The beginning of Fortify Rights in 2013 was less in response to proximate political conditions in Myanmar and more about gaps in the international human rights movement. I had been living in Southeast Asia and working on human rights in Myanmar since 2005. My colleagues and I had consistently seen coordination gaps between the indispensable work of community-based organizations and the indispensable work of international human rights organizations, and that’s partly why we founded Fortify Rights.

In the last two decades, the number of community-based human rights groups in Myanmar and worldwide has increased dramatically, and there are human rights defenders everywhere who need or want technical support. They’re the future and the best hope for the human rights movement, and it’s our job to serve them.

At the same time, there needs to be much more documentation of human rights violations, and not all human rights groups do that work. In the early days of Fortify Rights, I had yet to encounter any international human rights organizations committed to strengthening the work and power of human rights defenders at the local, national, and regional levels while also monitoring violations of the full spectrum of human rights. As a tiny startup, we tested a theory of change: We combined revelatory human rights investigations, engaging states on solutions, and strengthening or supporting community-based responses to human rights violations. In the last decade, we learned that combining these three strategies towards singular, realistic objectives can make change happen.

On top of that, despite the exciting changes in Myanmar at the time, severe human rights violations were happening, often under the radar of the so-called international community. In the two years before the founding of Fortify Rights in 2013, most U.N. member states were intoxicated with the romantic idea of a democratic transition in Myanmar, ignoring the military’s ongoing atrocity crimes and problematic controls in the political realm. Also, to this day, people forget that the so-called democratic transition in Myanmar excluded certain ethnic groups. It was a very dark time for some, not least of all Rohingya Muslims in Rakhine State, whom the military targeted for extinction. All political actors at the time had, in one way or another, regarded Rohingya as a common enemy of the people, and some used hate for Rohingya as an organizing tool, hoping it would benefit their party at the ballot box. Those were arguably the building blocks not only of the genocide but of other situations, including the bloody coup of 2021.

How have you seen the human rights landscape shift in Myanmar over the decade that your organization has been working on the country?

The most significant shift I’ve seen in the last decade was the military launching its failing coup d’état in 2021 and the people of Myanmar rising up and coordinating a nationwide multi-ethnic revolution. That had other significant ripple effects – sub-shifts, if you will – including an arguable sea change in sentiment toward Rohingya. Political leaders, civil society leaders, and others issued public apologies to the Rohingya people regarding the genocide, and the National Unity Government (NUG) even adopted a shift in policy, committing to ensuring citizenship and accountability for Rohingya in Myanmar. We’re still advocating for the NUG to make good on their commitments.

There were other massive shifts in the last decade or so. Beginning around 2011, Myanmar eased restrictions on media freedoms and freedom of expression. This was huge and led to the birth of critical, independent media outlets, and more truth-telling. And Myanmar’s diverse human rights defenders nationwide also took advantage of that wave of freedom. They founded organizations; they set and achieved goals. In 2014, we released a report documenting how the military and police systematically tortured Kachin civilians, amounting to war crimes and crimes against humanity, and we released it at a public event in Yangon with Kachin civil society. This would be unthinkable today.

The increased freedom of expression in the last decade arguably paved at least part of the way for today’s revolution. Tens of millions experienced freedom they’d been denied for too long, and so when the military moved in 2021 to once again rule with an iron fist, the people revolted. This is the strength and power of human rights.

Other dark shifts in the human rights landscape in the last decade also include situations of war crimes and crimes against humanity against ethnic nationalities, including in Arakan, Chin, Kachin, Karen, Karenni, and Shan states, and the Rohingya genocide gaining horrific intensity and momentum in 2016 and 2017.

There has also been constant impunity for atrocity crimes. The pernicious effects of impunity in Myanmar cannot be overstated. It’s a gateway phenomenon that can cause and worsen human rights violations, and that’s precisely what’s been happening. The military leaders responsible for genocide and atrocities against ethnic nationalities over the years are the same people responsible for the disastrous and failing coup. That’s not coincidental. It’s impunity at its ugliest manifestation.

Since the military coup of 2021, Fortify Rights has been closely involved in a number of recent attempts to bring cases against Myanmar’s military in foreign courts under the principle of universal jurisdiction. Given the many hurdles to successful prosecutions – not least the challenge of gaining custody of the accused – why have you decided to invest resources in this? Do you see a viable pathway toward accountability for the Myanmar’s military, for its pre- and post-coup atrocities?

Every universal jurisdiction filing is different, and despite the German prosecutor’s recent dismissal of our complaint, it remains an indispensable part of the global effort to end and remedy atrocity crimes.

We ultimately filed in Germany for several reasons, not least that two of the complainants in the filing were located in Germany. We never expected the prosecutor general to decide not to investigate. We worked on that complaint for upwards of two years. We believed in the effort and thought it would lead to a meaningful investigation and ultimate prosecutions. Our Myanmar team, technical team, and legal team did it side-by-side with witnesses and survivors who experienced horrendous atrocity crimes.

We had no illusions concerning the generals we named in the complaint being outside Germany. German law doesn’t require suspects of atrocity crimes to be in Germany to launch an investigation. And history is replete with examples of perpetrators avoiding justice until political winds shift in such a way that they end up in custody. We expected the German prosecutor to launch an investigation and for the Independent Investigative Mechanism for Myanmar to support prosecutions.

If we can’t envision a day when Min Aung Hlaing is in custody and facing prosecution, then it won’t happen. But we can imagine that day and are doing everything possible to create the preconditions for it. Our filing in Germany was a part of that overall approach. There are people behind bars today because survivors courageously decided to move forward with a humble complaint. That’s inspiring, and we would like to see more of it. Universal jurisdiction is a crucial tool, and we haven’t lost faith in it as an avenue for justice.

Beyond that, there are other avenues to justice for the people of Myanmar. When Russia invaded Ukraine in 2022, within weeks, 43 member states of the International Criminal Court (ICC) referred Ukraine to the Chief Prosecutor. That led to an investigation and, within a year, arrest warrants for [Russian President] Putin and one of his commissioners. Since the coup in Myanmar, not a single ICC member state has referred the situation to the prosecutor’s office, despite the NUG giving the Court jurisdiction to proceed. That’s unconscionable and something the human rights movement and like-minded states can overcome. It’s a priority for us at Fortify Rights to ensure the ICC launches a full investigation into the ongoing atrocities. When it happens, it will change the decision-making calculus of the senior generals in the junta, as it should. ICC member states should promptly refer the situation in Myanmar to the Chief Prosecutor.

As many people have observed in recent years, despite more rights being enshrined in international law than ever before, these are tough times for the notion of universal human rights. Do you see any bright spots in Asia’s human rights landscape? More broadly, do you think the world is moving toward greater or lesser respect for international law?

First, generally speaking, the human rights movement is relatively young, and as scholars have shown, it wasn’t created by the West but by advocates and states worldwide, including from the Global South, including Asia. Second, the human rights movement has always involved a combination of progress and backsliding. In that sense, I don’t see the current situation as exceedingly different. Backsliding happens everywhere and is a political fact; we must understand it to beat it.

As an example, Myanmar made great strides toward fundamental freedoms while also enabling genocide. Genocide is too severe to constitute a mere backsliding. Still, the point is that human rights conditions often shift in multiple directions simultaneously. We saw backsliding with the U.S. embracing torture, for example, or with Trump’s current fascist rhetoric appealing to a frightening mass of people. China, for example, played an active role in the creation of the Genocide Convention, which criminalizes acts that China now commits or watches its allies commit with impunity. The list goes on.

The key to the success of the human rights movement is to stay vigilant, coordinate, and care for each other. It’s often overlooked, but progress in human rights depends in part on the movement’s ability to stay physically and mentally healthy. For this reason, we prioritize wellness at Fortify Rights. Our work wouldn’t be possible without our generous donors, and they need to be just as resilient as human rights defenders in understanding the critical importance of supporting human rights work for a more peaceable future.

Assuming the best case scenario for Myanmar, in which the military administration falls and is replaced by a something approximating an inclusive federal democratic state, what role do you envision judicial accountability playing in the transition to a more humane form of rule? Do you see any tension between the imperatives of justice – of accountability for decades of abuse and atrocities – and those of peace?

The idea that criminal accountability for atrocity crimes can undermine peace has always been a farce. Empirical studies show that efforts to hold perpetrators accountable – including through trials – have ultimately led to less violence and human rights violations, not the opposite. In other words, accountability efforts don’t spoil peace but rather feed it. Justice and peace intermingle and can be interdependent. Nevertheless, in the context of Myanmar, we can expect analysts, diplomats, and others to cling to the idea that criminal accountability for atrocities will somehow be a problem. We have encountered it for years. Just before the coup, several U.N. member states were uninterested in prioritizing accountability in Myanmar, invoking this very argument, and that only emboldened the military, which, of course, later launched a coup.

But more importantly, the people of Myanmar will themselves demand justice and accountability. The masses already are, recognizing that accountability means rule of law and that it’s essential for democracy. But it won’t end there. Eventually, there will need to be truth and reconciliation for what’s been happening in Myanmar for decades. It won’t be perfect and will likely be difficult, but it will be a key to freedom. We’re committed to accompanying and supporting the realization of human rights in Myanmar and everywhere we work.