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| April
, the 25th 2002 |
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| Civil
action for Crimes against humanity and complicity in Crimes
against humanity committed in Burma (Myanmar) Lodged on Thursday
April 25 2002 in the Brussels magistrates court against X, the
company TOTALFINAELF S.A., Thierry Desmarest and Herve Madeo. |
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Summary :
The present action was lodged by four Burmese plaintiffs, each a former
victim of human rights violation or torture (chest burnt with cigarettes,
“the iron road” (a steel bar rolled up and down along the
shin until the skin is torn off), blows on the head with sand-bags
leading to permanent damage of the optic nerve, etc) within the framework
of a systematic, generalised and planned assault carried out by the
Myanmar military junta through an arsenal of multiple means of repression
which include massacre of opponents (1988), arbitrary arrests, torture,
forced relocations and the massive use of forced labour.
This complaint, detailed over 78 pages, is the fruit of a long research
and inquiry . Thus the file submitted to the magistrate includes 80
documents and proofs. It is initiated on the basis of the so-called
law of universal competence which gives competence to the Belgian
courts to sue the authors (even citizens of foreign countries) of
crimes against humanity even if these were committed abroad and even
against non Belgian victims .
The choice made by the plaintiffs to bring a complaint against X –persons
unknown but supposed to be the military junta- as the direct authors
of crimes against humanity committed in Burma (Myanmar) results from
a great difficulty of access to information in the field. Burma (Myanmar)
is still today a tightly closed country where any witness of crimes
committed by the military authorities takes huge risks for his own
safety and that of his relatives if he testifies.
In many cases the military junta has taken severe reprisals against
even distant relatives of human rights activists or democrats by very
harsh means (arbitrary arrests, torture, disappearances). Thus the
plaintiffs –who for this very reason have been granted refugee
status by four different countries- are taking very serious risks
for themselves and their relatives, particularly those still resident
in Burma (Myanmar).
Crimes against humanity
The complaint begins with an account of the human rights violations
of which the plaintiffs have been victims (see pp. 4 - 7). This account
demonstrates the substantial damage the plaintiffs have suffered from
the military authorities in Myanmar.
The plaintiffs proceed to show on the basis of several reports from
the United Nations, the I.L.O. and Amnesty International (see pp.
16 - 26) how these human rights violations are an integral part of
a systematic, generalised and well planned assault carried out by
the military authorities in Myanmar through an arsenal of multiple
means of repression including massacre of opponents (1988), arbitrary
arrests, torture (to which the plaintiffs have been subjected and
which Amnesty International describes as “institutionalised in
Burma”), forced relocation of population and massive use of forced
labour .
The plaintiffs thus demonstrate not only the reality of these crimes
against humanity committed by the Burmese military junta but also
the previous knowledge by the junta’s partners of the existence
of such crimes and of the risk taken in being associated to these
crimes.
The plaintiffs then target the legal entity of TOTALFINAELF as well
as Messrs. Thierry DESMAREST and Herve MADEO , whom, as persons having
suffered damage, they consider to have encouraged or participated
in the criminal actions and thus to be equally responsible for the
considerable damage that they have suffered.
The complicity in crimes against humanity of TOTALFINAELF, Thierry
DESMAREST and Herve MADEO :
The plaintiffs demonstrate the global moral and financial support
(see pp. 38 - 49) given to the military regime in Rangoon, in perfect
knowledge of the consequences of this support with respect to the
continuing massive human rights violations by this regime, by the
company TOTAL (now TOTALFINAELF) and its management (Messrs. Thierry
DESMAREST and Herve MADEO). The plaintiffs also show how this support
in full knowledge of the facts is considered by international standards
and law as complicity in crimes against humanity.
Precise facts :
The plaintives then demonstrate the moral, financial (see pp. 49 -
52) as well as logistical and military (see pp. 52 - 55) local support
given also in full knowledge of the facts by the company TOTAL and
its management to many military batallions (nicknamed by the local
population “TOTAL batallions”) in charge of security for
the Yadana pipeline in the Tenasserim region, in full knowledge of
the systematic and generalised human rights violations carried out
by these batallions.
The “perfect knowledge” by TOTAL and its management of crimes
committed by their military partners is demonstrated (see pp. 55 –
62) by several reports from international organizations, by several
testimonies from forced labour victims and desertors now in refugee
camps at the Thai-Burmese border, but also by some of the company
TOTAL’ s internal mail and documents which show how the company
was perfectly aware of the systematic and generalised use of forced
labour by its partners in charge of security for the pipeline (use
of forced portering for the army and of forced labour to build their
barracks). The plaintiffs also demonstrate that the company TOTAL
and its management knew how systematic and generalised forced labour
was by supplying proof that the company chose to discretely give a
“compensation” to no less than 463 victims of forced labour
for the period of December 1995 to January 15 1996 .
The examining magistrate will confirm or not this belief of the plaintiffs
that the company TOTAL benefited –at least indirectly- from the
systematic and generalised use of forced labour by its partners.
The plaintiffs however show –even in the absence of any advantage
drawn by TOTAL (quod non)- how the knowledge and acceptance by the
company TOTAL and its management of the fact that their own acts facilitated
the crimes against humanity committed by many batallions in charge
of security for the group’s pipeline –and paid by TOTAL
for this duty- constitutes complicity in the crimes against humanity
committed in Tenasserim since the arrival of TOTAL in Burma.
Personal responsibility of Messrs. DESMAREST
and MADEO
Mr Thierry DESMAREST, present chairman and managing director of TOTALFINAELF
S.A. was the first responsible for the Yadana project in his capacity
as director of TOTAL EXPLORATION PRODUCTION from July 1989 until his
nomination as the company’s managing director in 1995. The plaintiffs
supply the examining magistrate with statements by Serge Tchuruk (TOTAL’s
former managing director) naming Monsieur DESMAREST as responsible
for the Burma project. They also supply two photographs of Monsieur
DESMAREST personally signing contracts with the Burmese generals in
Rangoon on September 10 1994. The plaintiffs sue Monsieur Thierry
DESMAREST for complicity in crimes against humanity as responsible
for the strategy of TOTAL’s operations in Burma.
In his response to questions on forced labour by three Belgian senators
and members of parliament on May 31 2000 during the shareholders general
assembly in Paris, Monsieur Thierry DESMAREST confirmed that he wished
TOTALFINAELF to remain in Burma. The plaintiffs demonstrate however
his awareness of the crimes against humanity committed by the TOTAL
batallions in the pipeline region, and for this purpose they hand
over to the examining magistrate 77 testimonies from Burmese refugees
telling of massive forced labour (including children) used by the
“TOTAL batallions” in charge of the pipeline security (paid,
supplied with logistics and ammunitions by TOTAL) until after June
2001 (see pp. 73 and 74). This report was given to TOTALFINAELF and
received no reaction from Monsieur Thierry DESMAREST.
Monsieur Herve MADEO, of French nationality, director of TOTAL MYANMAR
EXPLORATION PRODUCTION from 1992 to 1999, is sued by the plaintiffs
for complicity in crimes against humanity as responsible for TOTAL’s
operations in the field. The plaintiffs prove that he has been informed
several times by UNOCAL’s management of risks arising from the
use of forced labour. They demonstrate also how he personally acknowledged
the compensation given to forced labourers taken by the army (see
pp. 60 – 62). He was in the field, organising the payment of
the batallions, the loan of helicopters, the gift of cars, the works
done by TOTAL for the army, the advice by “security consultants”
employed by TOTAL.
Possible punishment :
In the only precedent with regards to crimes against humanity judged
by the Belgian courts applying the Law of universal competence, the
four Rwandan citizens from Butare found guilty of complicity in crimes
against humanity were handed punishments of 12 to 20 years emprisonment
by the assizes court.
The plaintiffs have no reason to believe that “X”, Monsieur
Thierry DESMAREST and Herve MADEO might receive more lenient punishments
when they are found guilty, according to the wish of the plaintiffs.
Proceedings :
The civil action was handed to the examining magistrate on Thursday
April 25 2002. The decision rests with him with regards to the admissibility
of the action. If he states that the prosecution is admissible, the
magistrate can adopt any useful measure such as formal indictment,
summons, warrant for arrest, search warrant, etc.
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Notes :
1) None of the individuals subject to the present complaint has any
immunity. At least one of the plaintiffs resides in Belgium. Several
of the individuals subject to the complaint have been, are, or may
be “found in Belgium”.
2) See for example p. 20 of the case.
3) Individuals about whom they were able to gather a series of written
proofs.
4) Beyond the monthly payments to the batallions in charge of pipeline
security which made systematic use of forced labour, several testimonies
include in their statement the transport of troops as well as delivery
of grenades and ammunitions to military personnel on the company’s
helicopters. And finally a proof is given of the employment by TOTAL
of mercenaries (“security consultants”) to support the Burmese
army in “securising the site”.
5) Paid for this duty by the MOGE
6) This compensation, of which the examining magistrate will demonstrate
whether or not it recurred, demonstrates at the very least that TOTAL
knew of the “massive” use of forced labour by the army in
charge of security for the pipeline. Many testimonies which have reached
TOTAL then (see below) demonstrate the massive use of forced labour
at least until June 2001.
7) Moral element (Mens Rea)
8) Material element (Actus Reus) by way of moral, financial, logistical
and military support.
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