Argentinian Arrest Warrants for Crimes against the Rohingya: The Power of Small States

[Eva Buzo is a barrister and Executive Director of Victim Advocates International. Clare Brown is a Senior Legal Officer and Gender Advisor for Victim Advocates International. Kate Gibson is an international criminal lawyer and Senior Counsel to Victim Advocates International. Pia Conradsen is Rohingya Victim Coordinator of Victim Advocates International.]

On 28 June 2024, the Argentine Prosecutor Guillermo F. Marijuán asked a Federal Court to issue arrest warrants for 25 members of the Myanmar government and military, including the Head of State Min Aung Hlaing, and the Former State Counsellor Aung San Suu Kyi. Considering that he had gathered sufficient evidence to support charges for crimes against humanity and genocide committed against the Rohingya between 2012 and 2018, the Prosecutor sought the international capture of these 25 suspects, and the registration of red notices with Interpol. 

This is the first glimmer of something resembling justice for the close to 1 million Rohingya victims who fled persecution, and brutal clearance operations in Myanmar to seek refuge in the sprawling refugee camps in Cox’s Bazar, Bangladesh. The authors of this article have been working with and representing members of the camp-based Rohingya since 2019. We obtained standing to be recognised as plaintiffs in the proceedings on behalf of Victim Advocates International (‘VAI’), advocating for the collective interests of Rohingya victim associations, and were represented before the court by Dr. Roberto Durrieu. Testimony and stories from these camp-based Rohingya, are at the heart of the Prosecutor’s request. 

The 2017 footage and images of the Rohingya, fleeing for their lives across treacherous terrain and waterways, are seared into our collective memory. We watched in real-time as the gradual segregation, marginalisation and then outright persecution of this group forced them to abandon their home in Rakhine state, and flee across the border into Bangladesh. The calls for justice and accountability were loud and repeated. 

An ICC investigation opened to much fanfare in 2019 for the crimes against humanity of deportation and persecution committed on the territory of Bangladesh, an ICC State Party. The ICC investigation, now having run for six years, has produced no defendants in the dock in The Hague, and no publicly available arrest warrants. This is despite the parallel investigation of an Independent Investigative Mechanism for Myanmar (‘IIMM’), a team of experienced lawyers and investigators based in Geneva, established by the UN Human Rights Council in 2018 with a mandate to collect, preserve and analyse evidence of serious crimes committed in Myanmar since 2011. 

In an increasingly polarised international landscape, situations of mass atrocities are still largely met by paralysis and inaction. The situation of the Rohingya has followed this trend. Despite a plethora of blog posts, articles, panel discussions on the question of justice for the Rohingya, not one person has been arrested, tried or held accountable. The most recent ICC Registry report to the Pre-Trial Chamber recounts the growing disillusionment among members of the Rohingya community, noting that their “enthusiasm for the ICC’s investigation appears to be at an all-time low” with their focus having shifted “almost entirely to their day-to-day survival in Bangladesh”.

There are notable exceptions on this slow path to justice. The Gambia, the smallest country in continental Africa, has stepped up for its Rohingya brothers and sisters, a community with which it has no discernible link apart from a shared humanity. On 11 November 2019, The Gambia, on behalf of the 57 members of the Organisation of Islamic Cooperation, initiated proceedings before the International Court of Justice (ICJ) alleging that Myanmar failed to fulfil its obligations to prevent and punish acts of genocide committed against the Rohingya in Rakhine State as required under the Genocide Convention. A provisional measures order followed on 23 January 2020, directing Myanmar to “take all measures within its power” to prevent the commission of acts defined in the Genocide Convention. 

Perhaps even more significant than this order, was the symbolism of the then-State Chancellor Aung San Suu Kyi, sitting in a courtroom in The Hague, while submissions on the provisional measures were heard by the 15 Judges of the international court. The significance of this image to our clients, was immense. Other states, The Maldives, Canada, the U.K., Denmark, France, Germany, and the Netherlands have sought to intervene in these proceedings, following The Gambia’s lead. Regardless of the merits of the case, and whether a violation of the Genocide Convention will ultimately be established, solidarity from The Gambia, and its unilateral moral leadership, has given hope.  

The same hope is now being expressed in relation to this week’s request from the Argentine Prosecutor. When informed of the news of the Prosecutor Marijuán’s request, our clients in the camps who had shared their stories with the Prosecutor reacted with relief, saying “I am feeling better now with this news” and that “it is a moment of great joy for all Rohingya, especially for the victims and survivors of genocide”, saying that they “deeply appreciate” the Prosecutor’s request, and that they are looking forward to seeing the practical outcome. 

Again, there is no obvious link between the crimes committed against the Rohingya and interests of the Argentinian population. This fact, among other considerations, led to the initial dismissal of the application for an investigation. The first instance decision was revoked on 26 November 2021 by the Federal Court of Appeals, who ordered the resumption and deepening of the investigation.  The Prosecutor, citing the ultimate goal of avoiding impunity for the authors of serious crimes, made a decision to invest the finite resources of his office towards building a case against those who planned, directed and carried out the slaughter and abuse of the Rohingya community, refusing to accept the continued grip on power of their abusers. In seeking arrest warrants, the Prosecutor recalled a universal acceptance that the most serious crimes affecting the international community as a whole should not go unpunished; a request which is arguably just as significant to the growing body of universal jurisdiction cases as it is to the Rohingya. 

The Prosecutor’s request is essential reading for anyone with an interest in advancing the cause of justice for the Rohingya. Drawing on the testimony and statements of direct victims, the Prosecutor explores not only the emblematic clearance operations of 2017, but the years of pervasive discrimination and persecution that set the scene for the violence which was to follow. Relying on analytical reports provided by the IIMM on the failures to prevent and punish sexual violence, and the horrors of detention centres in Rakhine State, the Prosecutor also gives significant amplification to the role of hate speech, particularly that spread on Facebook, and its role in the violence. Examples of Facebook posts paint a particularly sinister picture of deliberate campaign of othering of the Rohingya in the months and weeks leading up to August 2017.  

Also significant is the Prosecutor’s reliance on the documentation gathered by the Rohingya civil society group ARSPH, the Arakan Rohingya Society for Peace and Human Rights. This reliance will stand as a lasting tribute to our client and the ARSPH’s founder, Mohib Ullah, who was assassinated in October 2021 for the very work which now forms part of the evidential matrix underlying the Prosecutor’s request.  

Having engaged in an analysis of the hierarchical structure of Myanmar’s security forces, within the framework of command responsibility, the Prosecutor then assembles his list of 25 individuals for which arrest warrants are sought. Most, if not all the names will be recognisable to those who work with the Rohingya community. They overlap in part with the list of those for who sanctions have already been imposed by the US and UK. 

The Argentine Prosecutor and his staff expended time, resources, and humanity because of their compulsion to act in the services of the Rohingya, a group with whom they share no common language, culture or history. This is an extraordinary act, particularly at a time where our faith as proponents of international criminal justice is being so violently tested. Lawyers in Argentina, like in The Gambia, have shown unilateral moral leadership where multilateral efforts have failed, motivated by the simple premise that international crimes affect the international community, and cannot go unpunished. 

While there are many steps between a request for an arrest warrant, and a Head of State appearing in an Argentinian courtroom, a swathe of red notices against the upper tranche of the Myanmar government and military will have an impact. It will impact not only the ability of these individuals to live, travel and hold wealth with impunity, but also the willingness of other states to consider Myanmar as a trusted, or tolerated, partner.  Any decision on the Prosecutor’s request will include judicial findings of fact, which can then inform the ICJ proceedings and the ICC investigation. This is a first step, but not a small one. It is, more importantly, a good news story for the Rohingya. Thanks, almost entirely, to the power of small states.