Universal Jurisdiction, the International Criminal Court, and the Rohingya Genocide

[Tun Khin is the founder and President of the Burmese Rohingya Organisation UK, which works to highlight the plight of the Rohingya around the world.]

On 13 November 2019, the Burmese Rohingya Organisation UK (BROUK) brought a landmark case to the Argentinian judiciary regarding atrocity crimes against the Rohingya minority in Myanmar. BROUK asked for a case to be opened against the Myanmar military and civilian leadership under universal jurisdiction, the principle that some crimes are so horrific that they can be tried anywhere regardless of where they were committed. It is the first universal jurisdiction case on the Rohingya situation brought anywhere in the world.

The submission of the case file brought widespread international media attention. It remarkably also came in the same week as the International Criminal Court (ICC) opened an investigation regarding crimes against humanity against the Rohingya, and the Gambia brought a case against Myanmar at the International Court of Justice (ICJ) for violating the Genocide Convention. Finally, there was a sense of real momentum behind international justice efforts for what has credibly been called a genocide against the Rohingya in Rakhine State.

Today, almost one year after BROUK first submitted the case to the Federal Court in Buenos Aires, the Argentinian judiciary is considering the implications of pursuing the case. Much of the hesitation stems from concerns about whether a universal jurisdiction case in Argentina would overlap with the ICC’s own investigation. This article aims to provide an update on what has happened in the case since November last year, and why we believe such a case would complement – not hinder – the ICC investigation in the ultimate goal of providing justice for the Rohingya.

In launching the case, BROUK was following the recommendation of the UN Fact-Finding Mission (FFM) on Myanmar. The FFM has since its seminal 2018 report urged UN Member States to bring universal jurisdiction cases in their domestic courts “to investigate and prosecute alleged perpetrators of serious crimes under international law committed in Myanmar”. We believe in pursuing multiple complimentary avenues to provide justice for atrocity crimes, and universal jurisdiction can be one such particularly effective avenue.

For myself, this case is also deeply personal. The history of my family in many ways reflects the tragic recent history of Rohingya in Myanmar. My grandfather was a parliamentary secretary in post-independence Myanmar and even worked with independence hero Aung San. My parents were in 1978 among the 200,000 Rohingya forced to flee into Bangladesh during the Tatmadaw’s (the Myanmar military) bloody Operation Dragon King in Rakhine State, although they returned after a few months in exile. I myself fled Rakhine State in the early 1990s in order to obtain a university degree (something effectively denied to Rohingya in Myanmar), and I am today based in London where I serve as the President of BROUK.

BROUK is represented legally in the case by Tomás Ojea Quintana, who was the United Nations Special Rapporteur (SR) on the situation of human rights in Myanmar from 2008 to 2014. His time as the SR coincided with the vicious state-sponsored mob violence against the Rohingya that swept Rakhine State in 2012.

Since World War II, more than 15 countries have used the concept of universal jurisdiction to criminally prosecute individuals for crimes that took place outside their territories. Most famously, it was used in the case that eventually led to the arrest of former Chilean dictator Augusto Pinochet in London in 1998. The principle is enshrined in several key international legal treaties, such as the Convention against Torture, as well as in the Argentinian constitution. Argentinian courts have a particularly progressive track record on universal jurisdiction and have in recent decades tried cases related to Francisco Franco-era crimes in Spain and persecution against the Falun Gong movement in China.

The case brought by BROUK in November 2019 concerns crimes against humanity and genocide against the Rohingya in Myanmar. These atrocities have been well-documented elsewhere, including by the FFM and international human rights organisations. It calls for Myanmar senior civilian military leadership to be investigated, including Commander-in-Chief Senior General Min Aung Hlaing. It furthermore highlights the criminal responsibility of civilian leaders, including State Counsellor Aung San Suu Kyi; former Presidents Htin Kyaw (2016-2018) and Thein Sein (2011-2016); and a number of other political, religious leaders and business persons who have used their positions of influence to fuel hatred against the Rohingya.

Just one month after submitting the case in December 2019, however, a Court of First Instance in Buenos Aires initially rejected the case, arguing that it would duplicate the investigation launched by the ICC in November 2019 into Myanmar over crimes against humanity. After an appeals process, a federal Appeal Court on 29 May this year overturned the Court of First Instance’s decision, and ruled it was necessary to seek clarification from the ICC on the remit of its investigation before pursuing a case. In September this year, an official diplomatic note was sent by the Argentinian Ministry of Foreign Affairs to the Office of Fatou Bensouda, the Prosecutor of the ICC, asking for additional information. MoFA has specifically asked for clarity on whether the Prosecutor believes a universal jurisdiction investigation would duplicate, or could even be disruptive, to the ICC’s own investigation.

We believe the answer is clear: a case in Argentina would complement the ICC investigation, and should be opened immediately.

The investigation the ICC authorised the Prosecutor to open into Myanmar’s crimes against the Rohingya is relatively limited in scope. Since Myanmar is not a State Party to the Rome Statute of the ICC, the investigation only covers crimes against Rohingya that took place on Bangladeshi territory, which is a State Party. These include the crime against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population, as long as an element of those crimes could be proved to have taken place in Bangladesh.

A case in Argentina, however, would be able to investigate to full range of crimes committed against the Rohingya. Such crimes include torture, enforced disappearances, murders, rapes and other inhuman acts of a similar nature – these have all been committed in Rakhine State, but no element of them were cross-border in nature. Our case file also includes a criminal complaint of genocide, something currently not within the scope of the ICC investigation. Just one specific example of a crime the ICC investigation is unable to look into is the horrific massacre in the village of Tula Toli, when Tatmadaw soldiers killed hundreds of Rohingya women, men and children on 30 August 2017. A case in Argentina would also address the rights of these and many other victims to justice and reparations, a principle enshrined in both international law and the Argentinian constitution.

As mentioned above, it is also important to bear in mind that the FFM has explicitly urged states to pursue cases in their national courts under this principle. This is all the more relevant since a referral by the UN Security Council of the situation in Myanmar to the ICC, which would trigger a much broader investigation than the one currently pursued, is currently a very distant prospect. China and Russia are virtually guaranteed to veto such a resolution, if it was ever attempted.

Finally, there is the more symbolic significance of a universal jurisdiction case in Argentina. It would clearly demonstrate to the Myanmar leadership that most of the world is determined to hold them accountable for the decades of violence and oppression against Rohingya. It would bring a sense of hope to Rohingya themselves, many of whom see international justice as the best way to build a future in safety and dignity in their homeland. And it could inspire and motivate other states to pursue similar cases within their own judiciaries.

We greatly respect and support the ICC and the Office of the Prosecutor, and applaud Ms. Bensouda’s judicial creativity and courage in pursuing an investigation against Myanmar. We are also grateful for the open and constructive relationship between the ICC and BROUK. We want to be absolutely clear that our intention is not to derail or harm the ICC investigation. Rather, we want to complement it in order to offer the best possible prospect of justice for the Rohingya.

I have travelled to Bangladesh often to meet Rohingya refugees in Cox’s Bazar, most of whom had to quite literally flee for their lives and leave everything behind to escape the Tatmadaw’s violence. It is touching that what Rohingya women, men and children most often speak of is not a desire for “revenge”, but for justice. Only genuine accountability can bring an end to the cycle of violence and repression that has become normalized for Rohingya in Rakhine State. It is our hope that the Argentinian judiciary will take up our case to bring us a step closer to making this a reality.