State Counsellor Suu Kyi and other leaders are facing charges in a “universal jurisdiction” case filed in Argentina by Rohingya activists and Latin American human rights groups. Yet they may never see the inside of a courtroom.
Myanmar’s State Counsellor and Nobel Laureate Aung San Suu Kyi faces a legal case filed in Argentina under “universal jurisdiction” for crimes committed in Myanmar against the Rohingya.
Universal jurisdiction is a legal principle that allows national courts “to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states.”
Previous examples of universal jurisdiction applied to leaders include cases against Chile’s Augusto Pinochet (the first universal jurisdiction case) and Spain’s Francisco Franco.
This time, Suu Kyi and several top Myanmar officials were named in the case that Rohingya Muslims and Latin American human rights groups brought forward in an Argentine court. The plaintiffs are represented by lawyer Tomas Ojea Quintana, who was the UN’s Special Rapporteur for the human rights situation in Myanmar between 2008 and 2014.
One of the parties filing the suit is the Burmese Rohingya Organisation UK (BROUK). Its president Tun Khin said, “For decades, the Myanmar authorities have tried to wipe us out by confining us to ghettos, forcing us to flee our home country and killing us.”
“This complaint seeks the criminal sanction of the perpetrators, accomplices and cover-ups of the genocide. We are doing it through Argentina because they have no other possibility of filing the criminal complaint anywhere else,” Ojea told AFP.
This is the first time Suu Kyi is being legally challenged for the plight of the Rohingya in Myanmar. Ojea commented that the lawsuit seeks to penalise top military and political leaders in Myanmar, and that he hoped international arrest warrants would be issued as a result of the suit.
Ojea may be hoping against hope. In March 2018, Australian lawyers tried suing Suu Kyi in Australia “over crimes against humanity committed against the Rohingya ethnic and religious minority in Myanmar” using the same principle of “universal jurisdiction”. The Guardian spoke with Australia’s attorney general who said it wouldn’t work.
“Aung San Suu Kyi has complete immunity, including from being served with court documents,” Christian Porter commented at the time, “because under customary international law, heads of state, heads of government and ministers of foreign affairs are immune from foreign criminal proceedings and are inviolable – they cannot be arrested, detained, or served with court proceedings.”
Suu Kyi was formerly a recipient of Amnesty International’s Ambassador of Conscience Award. She was stripped of the honour last November by the human rights organisation which said she is “no longer a symbol of hope” and accused her of being indifferent to the plight of the Rohingya in Myanmar who have been subject to expulsion, torture and rape.
Suu Kyi is Myanmar’s ‘state counsellor’, a position considered to be the same as prime minister. On paper she is the leader of Myanmar during the time in which the atrocities against the Rohingya took place. Many argue that the real power lies with Myanmar’s military and that she has no control over their actions regarding the Rohingya.
According to the UN report, “In the case of Kachin and Shan States, the crimes [committed by Myanmar against the Rohingya] include murder, imprisonment, enforced disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution, and enslavement.”
The report went on to say “In Rakhine State, these and other crimes against humanity have been committed. The elements of extermination and deportation are also present, while the systematic oppression and discrimination not only supports a finding of persecution but may also amount to the crime of apartheid.”
Also this week on Monday, The Gambia filed a lawsuit at the International Court of Justice in The Hague against Myanmar, the New York Times reported. The West African country is demanding that the UN’s highest court find Myanmar guilty of violating the Genocide Convention because of its deplorable acts towards the Rohingya.
The Gambia, a majority Muslim country, was selected to file the suit by the Organization of Islamic Cooperation. The New York Times said “no other court has jurisdiction to pursue a genocide case against [Myanmar]”.
Myanmar’s leaders have categorically denied any wrongdoing since the beginning of the conflict. The Rohingya are not recognised as a minority by Myanmar, which considers them Bengali interlopers.
Hundreds of thousands of Rohingya have fled the country for Bangladesh, while Myanmar maintains the crackdown is a retaliation against insurgents calling themselves the Arakan Rohingya Salvation Army, which it has designated as a terrorist organisation.