Symposium on the Current Crisis in Myanmar: Inching Closer to a Historic Universal Jurisdiction Case in Argentina on the Rohingya Genocide

[Tun Khin is President of the Burmese Rohingya Organisation UK and Tomás Ojea Quintana is a former UN Special rapporteur on the situation of human rights in Myanmar.]

On 18 August, in a court in downtown Buenos Aires, Argentina, six women made history in the Rohingyas’ long struggle for justice. For the first time anywhere in the world, Rohingya victims of the decades-long genocide wrought by Myanmar were allowed to testify in a court of law. The women, who dialled in from their current homes in refugee camps in Cox’s Bazar, Bangladesh, spoke of how they had been victims of sexual violence by soldiers in Chuk Pyin, Rakhine State, in 2017.

For Rohingya – and people in Myanmar anywhere who have suffered at the hands of the military – it was a momentous occasion. Adding to the symbolism was the fact that the hearing took place just one week before 25 August, the fourth anniversary of the brutal “clearance operations” in 2017, when the Tatmadaw (Myanmar military) and its proxies killed thousands and drove close to 800,000 Rohingya to flee into Bangladesh. The hearing of course also took place little more than six months after the Tatmadaw’s coup on 1 February, and as such was significant not just to address crimes of the past, but also violations by the same military still happening this very day in Myanmar.

The court hearing was part of the universal jurisdiction case brought by the Burmese Rohingya Organisation UK (BROUK) to Argentina in November 2019. We have written about our decision to petition for universal jurisdiction case in Argentina for Opinio Juris before, as well as how the case has progressed through the Argentinian judiciary. By way of quick summary: the case was initially rejected by the Court of First Instance, mainly over concerns that it would overlap with the investigation announced by the International Criminal Court. On appeal, however, the Federal Criminal Appeal Court in Buenos Aires in May 2020 overturned the rejection, ruling that more information should be sought from the Office of the Prosecutor of the ICC.

The hearing on 18 August was the latest stage of this process, where the Appeal Court heard arguments for and against taking up the case.

The fact that Rohingya victims – which also included Tun Khin himself – were allowed to testify in a court of law was hugely significant to a community that has fought for justice for generations. The bravery of the women, whose names were withheld to protect their identities, cannot be overstated, not least since sexual violence is often considered taboo in the conservative Rohingya culture, and brings risk of social stigma. Despite this, the women spoke movingly about the horrific violence they had both witnessed – including the killing of their husbands – and been subjected to. Similarly, one of us, Tun Khin, testified despite facing threats which have resulted in him being afforded protection by the office of the UN Special rapporteur Special Rapporteur on the situation of human rights defenders.

The Appeal Court should be commended for allowing such testimony to form part of the hearing. The Court also dedicated significant resources to making it a reality, including by providing “double translation” from Rohingya to English, and then from English into Spanish. It should also be noted that this is the same Appeal Court that in May 2020 overturned the initial rejection of the case, meaning its judges were well-informed of the situation facing the Rohingya, and had seen the value in consulting further with the ICC.

In terms of the substance of the arguments discussed, they covered a wide range of issues, including the potential of a universal jurisdiction case in Argentina duplicating the investigation currently ongoing at the ICC. Over the past year, in official diplomatic communication between the Office of the Prosecutor (OOP) of the ICC and the Argentinian Ministry of Foreign Affairs, the OOP has clarified that – because Myanmar is not a party to the Rome Statute – it is only investigating crimes which have at least partly been committed on Bangladeshi territory. The ICC investigation therefore does not include a range of crimes committed by the Tatmadaw inside Rakhine State, including murder, enforced disappearances and sexual violence, including that described by the Rohingya witnesses during the hearing.

The massive sexual violence perpetrated by the Tatmadaw and its proxies in Rakhine State is something that should be prioritised by international justice processes. It is crucial that such crimes are not only investigated and addressed, but that such processes respect the specific needs of victims who have suffered such abuse. Based on this response from the OOP, it is in our opinion clear that the case brough BROUK would not duplicate efforts in the Hague, but instead complement and add significantly to this case. 

Related to this, during the hearing we also stressed the fact that a case in Argentina would also be manifestly different to the genocide case The Gambia brought against Myanmar at the International Court of Justice. That case, while hugely significant, addresses intra-state responsibility, while a case in Argentina would examine individual criminal responsibility, including of senior Tatmadaw officials.

Another issue raised by representatives of the Court of First Instance was whether conditions currently exist inside Myanmar for independent and impartial prosecution of perpetrators of crimes against the Rohingya. While in May 2019 seven soldiers were convicted for the killing of 10 Rohingya men, they were tried in military courts, where any further such cases are also likely to be trialled. International human rights law is clear on the fact that military courts do not meet the requisite standards of fairness and impartiality in these cases.

It was also discussed whether Myanmar’s own Independent Commission of Enquiry (ICOE) could be seen as a domestic route to accountability. ICOE released a report in January 2020 which admitted that “war crimes and serious human rights violations” had been committed in Myanmar but denied crimes against humanity or an ongoing genocide. It also claimed that crimes had been committed by rogue soldiers acting without their superiors’ knowledge. The UN Fact-Finding Mission on Myanmar has, however, clearly stated that ICOE – which is not a judicial body – “will not and cannot provide a real avenue for accountability”. It is also notable that no judicial proceedings in Myanmar are known to have been opened after the ICOE report was published. The fact that the OOP decided to open an investigation, and that the Independent International Investigative Mission on Myanmar (IIMM) was established in 2020, is further evidence of a lack of confidence in ICOE’s ability to contribute to any meaningful justice process. Of course, the Tatmadaw’s coup in February 2021 makes domestic justice an even more remote possibility.

A further argument put forward by the Court of First Instance representatives was that for a universal jurisdiction case to be launched in a country, that country needs to have some sort of link to the region where the crimes were committed – be they political, cultural or historical. We believe this is an unfounded argument. Universal jurisdiction rests on the principle that some crimes, including crimes against humanity and genocide, can be tried anywhere in the world. In Argentina, a universal jurisdiction case does not require that the victim of the defendant are present in its territory. The seriousness of such crimes means that they concern humanity as a whole, and no other “connection” is needed than the fact that they have been committed in the first place.

During the hearing, we furthermore stressed that a universal jurisdiction case in Argentina would not be an ad hoc or arbitrary occurrence, that illegally interfere in Myanmar’s domestic jurisdiction. Rather, it would form part of a wider strategy developed by the United Nations to seek justice according to international law for the decades-long effort to destroy the Rohingya as a people. The FFM, for instance, specifically called on states to pursue their own universal jurisdiction cases as part of wider efforts to bring responsible Myanmar officials to justice. In our case, the IIMM has also expressed open support for a case in Argentina, and has committed to share resources and information if the case moves forward. 

We also stressed that a universal jurisdiction case is not just about holding those responsible to account, but also about meeting the victims’ rights to obtain justice. This is a right that is increasingly emphasised in international human rights law and also enshrined in the Argentinian domestic legal framework.

Finally, we want to stress that the coup in February has changed the significance of our case. There are cautious signs of a change in discourse in Myanmar. Tun Khin and many other Rohingya have been inundated on social media with messages from mainly ethnic Bamar people apologising for spreading hatred against the Rohingya. Some, like the family members of medical students, have even issued official apologies. The military’s brutality since the coup – more than 1,000 people killed and thousands more arbitrarily arrested – has been shocking, and likely amounts to crimes against humanity. As such, a universal jurisdiction case in Argentina is not just about Rohingya, but about all people in Myanmar who have suffered at the hands of the Tatmadaw, before and after the coup.

In terms of next steps, we are now eagerly awaiting a final decision by the Appeal Court on whether a case can proceed in Argentina. If it does, it will be the first ever universal jurisdiction case regarding of the situation of Rohingya anywhere in the world. We hope that, in the not-too-distant future, we will be able to celebrate another historic milestone in the Rohingyas’ struggle for justice.