Since at least 2017, Myanmar has come under increased scrutiny for the actions of its military (the Tatmadaw) against ethnic minorities in its northern provinces and in Rakhine. While the Burmese government has argued its actions are in response to threats by militant groups, many have characterised them as international crimes. As a result, the United Nations International Fact-Finding Mission on Myanmar (‘FFM’) was established pursuant to Human Rights Council Resolution 34/22 with a mandate to investigate ‘any human rights violations and abuses amounting to possible international crimes in Myanmar since 2011’ with a view to ensuring full accountability. Since the conclusion of the FFM’s mandate, the Independent Investigative Mechanism for Myanmar (‘IIMM’) and the International Criminal Court(‘ICC’) have continued to investigate international crimes in Myanmar (and Bangladesh).
It is both realistic and legally possible for the IIMM and the ICC to ensure that allegations of corporate complicity feature in the future accountability landscape for Myanmar under international criminal law. The individual complicity of corporate CEOs fell under the mandate of the FFM, and now falls within the terms of reference of the IIMM and the material jurisdiction of the ICC. Customary international law standards of aiding and abetting, and Article 25 of the Rome Statute provide a legal basis for the accomplice liability of such individuals.
In general, accountability efforts on Myanmar have focused on the upper echelons of the Tatmadaw. This is understandable but is not fully reflective of the FFM’s findings. We wish to highlight, in particular, the FFM’s Report on the Economic Interests of the Myanmar Military of 16 Sept 2019 (‘Economic Interests Report’) since its findings are remarkably absent from the Myanmar commentary to date. The Economic Interests Report sheds light upon the Tatmadaw’s links with extractive industries in Myanmar including the country’s lucrative jade industry, and details the role of foreign arms manufacturers in supplying the Tatmadaw with conventional weapon systems and dual-use military goods.
In this context, it is significant that corporate complicity in Myanmar has been brought to the fore following the 1 February 2021 military coup in renewed calls for accountability. In the wake of the coup, Facebook’s alleged role in incitement to genocide has taken centre-stage (see here, here and here). This blog post is intended - without diminishing the importance of Facebook’s role – to serve as a reminder of the broad and potentially far-reaching scope of corporate involvement in international crimes in Myanmar, and to highlight the underacknowledged findings of the FFM in this regard. Through these observations, we draw attention to the risk of narrowing the Myanmar discourse to focus on Facebook (to the exclusion of other businesses such as extractive industries and the arms trade) and for reasons that may have little to do with the reality of corporate support and profiteering in Myanmar, and more to do with unrelated concurrent developments (e.g., wider global discussions about the legal regulation of social media).
Findings of the FFM’s Economic Interests Report
In its earlier reports, the FFM determined that ‘reasonable grounds [existed] to conclude that serious crimes under international law [had] been committed’ in Myanmar. The FFM had examined the particulars of the Tatmadaw’s ‘Clearance Operations,’ utilised between 2016-17, against the Rohingya population in the Rakhine state, and deemed them constitutive of ‘planned’ attacks upon an ethnic group harbouring ‘genocidal intent.’ In summary, these Clearance Operations typically occurred at dawn, targeted multiple Rohingya villages at once, included an array of Myanmar security forces units, and consisted of indiscriminate rapid firing into houses and fields, explosions, and arson. As expected, many were killed, and significant numbers of those who survived were subjected to sexual or gender-based violence. The FFM also investigated the perpetration of crimes against humanity and war crimes in the Kachin, Shan, and Rakhine states. As well as the Tatmadaw, the FFM implicated perpetrators from non-state armed groups the Arakan Rohingya Salvation Army, Ta’ang National Liberation Army, and the Shan State Army-South.
While the FFM assembled significant evidence against these perpetrators, it is the findings of the Economic Interests Report of 16 Sept 2019 against a host of corporate actors that is particularly compelling. It is significant that the FFM structured its findings on corporate involvement with reference to the requirements of aiding and abetting under international criminal law. The alleged corporate accomplices identified by the FFM can be distilled into three general groups: (i) joint ventures and commercial relationships, (ii) manufacturers of conventional weapons and dual-use military goods, and (iii) Facebook and incitement to genocide.
The first group concerns companies involved in joint ventures and commercial relationships with Myanmar’s two largest conglomerates controlled by the Tatmadaw – namely, Myanmar Economic Holding Limited (‘MEHL’) and Myanmar Economic Corporation (‘MEC’). A joint venture of notable importance is that between the South Korean steel manufacturer POSCO and MEHL. According to the FFM’s findings, MEHL held a 70 per cent stake in POSCO, which likely allowed MEHL, and consequently the Tatmadaw, to enjoy significant dividends from POSCO’s economic performance.
Interestingly, in the wake of the recent military coup, POSCO ‘suspended all dividends payments to MEHL,’exemplifying the possibility of implicated companies adapting their behaviour in response to allegations about the Myanmar authorities and demonstrating the potential for IIMM and ICC investigations to contribute to the imposition of international sanctions, regulatory restrictions, or voluntary corporate behavioural changes. Additionally, companies such as Oberthur Technologies and Newtec, who provided information and communication technologies to MEC, were also named as potential facilitators of the Tatmadaw’s operations.
While these ex post facto allegations of criminal complicity cannot be ‘undone’ by a company improving its business practices, such that further investigations (and potential prosecutions) would be legally precluded by a company’s subsequent behaviour, it is encouraging to note that Newtec announced the cessation of its activities in Myanmar in the wake of the Economic Interests Report. Nevertheless, from a legal perspective, POSCO and Newtec’s executives can do nothing subsequently to absolve themselves of criminal responsibility, and any investigations that uncover their participation in the commission of previous crimes could lead to prosecutions.
As to the second group of companies, a further distillation into two sub-groups of corporate actors is made. First and foremost, there are the business entities (state owned and private) who supplied ‘conventional arms and related items to the Tatmadaw.’ Prominent examples include the provision of ‘JF-17M […] combat aircraft;’ ‘Super-Dvora Mk III fast attack craft’ and ‘Sukhoi SU-30 multi-role fighter jets.’ Secondly, there are the private companies from which the Tatmadaw procured or sought to procure dual-use goods and military equipment.’ The FFM identified a total of seven private companies whose contributions range from providing the Tatmadaw with ‘Nikon D7100 Cameras’ to ‘navigation and positioning system[s]’ and even ‘unmanned ariel vehicles […] having military use.’
As a whole, manufacturers of conventional weapons and dual-use military goods may be of particular interest for further investigation because the companies listed are domiciled in states that are likely to be amenable to the possibility of national prosecutions for international crimes, and/or supporting cases in international(ised) courts – Austria, Canada, Japan, Norway, South Africa and the United Kingdom. As well as holding varying degrees of potential for national prosecutions (including pursuant to the principle of universal jurisdiction), these states are all States Parties to the Rome Statute.
Lastly, the FFM investigated the involvement of the role that social media companies (most notably, Facebook) in the commission of international crimes in Myanmar, particularly genocide. The FFM’s determinations in this regard were published in another report in 2018, and referred to in another 2019 report . The FFM addressed the manner in which the Facebook platform was used as a medium for cultivating ‘a climate in which hate speech thrives, human rights violations are legitimized, and incitement to discrimination and violence facilitated.’ Even though it stopped short of expressly categorising Facebook as a culpable actor in the Myanmar situation, the attention the FFM brought to the platform’s inaction, in theory, could lead to future cases at the domestic or international level should domestic, and international prosecutors (the IIMM and ICC) bring charges against individuals who worked for Facebook during the occurrence of the atrocities in question. This possibility is further emphasised by the recent lodging of a class action law suit before the Superior Court of the State of California against Meta Platforms Inc. (Facebook’s recently established parent company), seeking compensatory and putative damages for its alleged contribution to the genocidal acts perpetrated against the Rohingya population by the Tatmadaw. Whilst the complaint is one of tort law, it illustrates the increasingly intense scrutiny of Facebook’s involvement in Myanmar.
Routes to corporate accountability?
Attentive and non-selective reading of the FFM’s findings shows immediately that IIMM and ICC investigations could go in a broad range of possible directions when it comes to selecting cases against corporate actors. Naturally, further investigations would need to be conducted to determine whether there is sufficient linkage evidence identified by the FFM that would convincingly tie the actions of corporate actors identified by the FFM with the international crimes perpetrated by the Tatmadaw.
Even though there is a legal basis for prosecuting business persons under international criminal law, the recent international practice of the ICC and other international(ised) criminal tribunals has tended to emphasise the investigation and prosecution of senior military and political figures, perhaps assuming that corporate regulation is better dealt with by international sanctions and national regulatory laws. Both the emphasis and the assumption can be criticised in general but may be specifically problematic in the case of Myanmar, where the FFM has provided clear indications of the criminal complicity of individual businesspersons, and where the ICC and IIMM would face major jurisdictional difficulties in attempting to investigate, and potentially gain custody of, senior Burmese military and political figures. Senior ICC staff in the OTP and in judicial chambers have for many years discussed the possibilities of prosecuting businesspersons at the ICC. Whether or not Myanmar investigations would ultimately lead to criminal convictions, such action would contribute to the imposition of international sanctions, regulatory restrictions, or voluntary corporate behavioural changes. The fact that the FFM structured its findings on corporate involvement with reference to the requirements of aiding and abetting under international criminal law only serves to emphasise the potential role of criminal investigations in this regard.
All things considered, the prevailing trend in international criminal tribunals is that prosecutions are highly selective, and prosecutors focus on those individuals that stand out as most responsible. This owing to what some describe as international criminal law’s ‘state-centred design,’ and seemingly excessive adherence to established international practice rather than to legal mandates. Taken together with prevailing prosecutorial policies (see here and here) it will be challenging for international(ised) forums to pursue cases against corporate actors under legal doctrines of accomplice liability before they have pursued the principal perpetrators for their more direct involvement in the commission of international crimes.
Until now, only a handful of corporate actors have stood trial before international(ised) courts and tribunals for their involvement in atrocity crimes since the Second World War cases of Krupp and IG Farben. The Myanmar situation represents an interesting opportunity for international(ised) forums to address corporate complicity, especially given the difficulties that are likely to affect their efforts in securing custody over Tatmadaw officials, the existing findings on corporate complicity of the FFM, the deterrence value of such prosecutions in discouraging corporations ex ante from doing business in Myanmar, the stimulation of divestment and shareholder activism, the contribution to achieving the retributive aims of criminal law by punishing not only Tatmadaw officials but the businesspersons that enable its policies, and more broadly the symbolic value of using criminal law to signal the broad range of actors involved in systemic atrocity.
Here, the ICC’s prosecutorial policymakers, and any prospective tribunal(s) stemming from the IIMM’s mandate, could look to domestic practice for inspiration, where many have argued that the prosecution of corporate actors for complicity in international crimes is a fast-emerging norm. Aside from the familiar Kouwenhoven and Van Anraat judgements from the Netherlands, international(ised) forums could borrow inspiration from proceedings against Belgian companies AAE Chemie, Anex Customs and Danmar Logistics over chemical exports to Syria, French cement company Lafarge Holcim in relation to Islamic State, and recent proceedings Lundlin Energy for its alleged complicity in war crimes, in Sudan.
As this evolving corporate accountability landscape is brought to bear on the Myanmar situation over the coming years, it will be important to ensure that (extremely important) efforts to prevent social media from providing a platform for incitement to genocide do not obscure the more conventional forms of ‘business as usual’ that may have rendered companies complicit in crimes of the Tatmadaw. International investigations should not lose sight of the joint ventures and commercial relationships in Myanmar, manufacturers of conventional weapons and dual-use military goods, and other corporate actors, for whom the FFM has already found reasonable grounds to proceed.