Symposium on Prosecuting Asia-Pacific Crimes: Examining the Utility of Universal Jurisdiction Efforts to Address Forced Displacement in Myanmar

[Phil Orchard is Professor in International Relations, Head of Discipline, Politics and International Studies and Co-Director of the Future of Rights Centre in the School of Social Sciences at the University of Wollongong in New South Wales, Australia.

Mareen Brosinsky is Associate Lecturer and PhD Candidate in the School of Social Sciences at the University of Wollongong in New South Wales, Australia.]

International responses to forced displacement are a critical issue. While numbers have declined slightly in 2025, there remain over 104 million people displaced as a result of conflict and violence globally, including 35.6 million refugees and 68.6 million internally displaced persons, figures that have more than doubled over the last fifteen years. Too often, forced displacement is portrayed as a consequence of other grave human rights violations and atrocity crimes. But, as the UN Special Rapporteur on the human rights of internally displaced persons has recently noted, “displacement is no longer just a consequence of conflict – it is increasingly its deliberate objective.” This has led to growing calls including from UNHCR and the Global Protection Cluster and the Special Rapporteur to improve mechanisms to hold those who forcibly displace people to account.

The Refugee Convention is silent on the issue of accountability.Instead, we need to rely on international criminal law and on standards established in the 1998 Guiding Principles on Internal Displacement. Art. 7(1)(d), (2)(d) of the Rome Statute establishes “deportation or forcible transfer of population” as a crime against humanity, referring to the:

“forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”

“Unlawful deportation or transfer” is established as a war crime in the fourth Geneva Convention under Art. 49 and as ‘Grave breaches’ under Art. 147. This is also established in Art. 8(2) (a)(vii), (b)(viii) of the Rome Statute during international armed conflicts; and Art. (e)(viii) establishes:

“ordering the displacement of the civilian population for reasons related to the conflict”

as a crime in non-international armed conflicts. However, each of these clauses allow for evacuations of civilians for either reasons of security or imperative military reasons. Finally, “forcibly transferring children of the group to another group” constitutes a genocidal act under Art. II(e) of the Genocide Convention and Art. 6(e) of the Rome Statute.

The 1998 soft law UN Guiding Principles on Internal Displacement outline the “right to be protected against being arbitrarily displaced” under Principle 6. This has been brought into regional law through the African Union’s 2009 Kampala Convention. In her 2021 Report to the General Assembly, the former UN Special Rapporteur on the human rights of internally displaced persons outlined the requirements for arbitrary displacement to amount to an international crime. Among them, the contextual elements of the crime must be met in that the:

“act of the perpetrator must have contributed to forced displacement, for example by ordering the displacement, or by creating a situation that forces people to move (e.g. by destroying civilian property or intentionally creating an environment of fear)”

and there must be proof of intent (mens rea) to cause displacement.

The Principle of Universal Jurisdiction

Universal jurisdiction (or UJ) is an established principle in international law that allows states to investigate and prosecute the most serious crimes under international law through their domestic judicial systems, regardless of the location of the crime or the nationality of perpetrator or victim. 148 UN member states provide for the exercise of UJ in their domestic legal frameworks and recent years have seen an increase in criminal complaints, international arrest warrants, investigations and criminal proceedings conducted in various countries around the world. These efforts have addressed situations which to date have not seen any legal response, including crimes committed in Syria, against the Yazidi population in Iraq, and the Uyghurs in China.

Past and ongoing UJ cases illustrate that UJ can be used to seek individual accountability for forced displacement crimes. The Hissène Habré trial in Senegal in 2016 saw the former Chadian dictator charged with the war crime of unlawful transfer of civilians among other charges, though he was acquitted on that count. More recently, the ‘Yazidi trials’ which took place in various courts in Germany and Sweden resulted in criminal convictions of deportation or forcible transfer as a war crime, a crime against humanity and even as genocide for the forcible transfer of Yazidi children. A range of other current UJ efforts in the context of Gaza or Sudan in Sweden, France and the UK, some of which also address questions of corporate accountability by private companies, have included forced displacement in their criminal complaints or investigations.

International Responses to Forced Displacement in Myanmar

In Myanmar, the Tatmadaw’s so-called “clearance operations” in August 2017 resulted in the killings, torture, destruction of villages and mass displacement of the Rohingya population, including forced deportations into neighbouring Bangladesh where the current refugee population is just under 1.2 million. The OHCHR mission report from October 2017, noted the violence was:

“not only to drive the population out in droves but also to prevent the fleeing Rohingya victims from returning to their homes.”

These tactics have been used more widely in Myanmar since the military coup in February 2021. UNHCR estimates that as of June, 3.8 million people were internally displaced in Myanmar and there were a total of 1.6 million refugees having fled the country in the context of both the violence against the Rohingya and the post-coup political unrest.

In spite of the scale of forced displacement, responses from key UN bodies have been limited. In its resolution 73/264 from 22 December 2018, the UN General Assemblystrongly condemned:

“the widespread, systematic and gross human rights violations and abuses committed in Rakhine State, including the presence of elements of extermination and deportation.”

The UN Security Council’s only resolution on Myanmar, on 21 December 2022, underscored the need to address the root causes of the crisis in Rakhine state and to “create conditions necessary for the voluntary, safe, dignified and sustainable return of Rohingya refugees and internally displaced persons.” However, no further action has been taken.

By contrast, in a case brought by The Gambia before the International Court of Justice (ICJ), the Court in its 2020 Provisional Measures found that the Rohingya “appear to constitute a protected group” and Myanmar needed to prevent the commission of acts within the scope of Article II of the Genocide Convention. However, it did not enumerate specific types of acts. The International Criminal Court (ICC) is also investigating the situation after it found that it had jurisdiction as the crime of deportation had an “inherently transboundary nature” and had in part been allegedly committed on the territory of Bangladesh which is a party to the Rome Statute. The Office of the Prosecutor applied for an arrest warrant on 27 November 2024 against nominally civilian President Min Aung Hlaing “for the crimes against humanity of deportation and persecution of the Rohingya”. However no public arrest warrant has yet been issued.

The Special Rapporteur on the situation of human rights in Myanmar, the Independent International Fact-Finding Mission on Myanmar (IIFFMM), and the Independent Investigative Mechanism for Myanmar (IIMM) have all documented the scale and severity of crimes committed in Myanmar and have repeatedly made calls for states to seek accountability through international and domestic legal means. In 2018, the IIFFMM found that the elements of deportation as a crime against humanity and displacement of civilians as a war crime were present and that the “‘clearance operations’ […] leading to mass displacement […] amount to criminal conduct”. The Mission also urged member states to:

“exercise jurisdiction to investigate and prosecute alleged perpetrators of serious crimes under international law committed in Myanmar”

through their own domestic courts. A 2025 report by the IIMM found that:

“Myanmar state authorities and associated actors destroyed and dispossessed Rohingya land and property […] the authorities reinforced the effects of the clearance operations and forced deportations, and created very serious impediments to the ability of Rohingya to ever reconstitute the communities where they had lived for generations”.

Utilising Universal Jurisdiction to Address Forced Displacement in Myanmar

Since 2018, there have been several publicly known attempts to utilise UJ to respond to the crimes committed both against the Rohingya population as well as against civilians since the military coup in Myanmar. Complaints brought in Australia, Argentina, Germany, Turkey and the United Kingdom have so far shown mixed results. A private prosecution application filed by a group of Australian lawyers in the Melbourne Magistrate’s Court against then-State Counsellor and Foreign Minister Aung San Suu Kyi in 2018 included allegations for having “committed a crime against humanity (deportation or forcible transfer of population)” against the Rohingya. A criminal complaint filed with the German Federal Public Prosecutor’s Office by Fortify Rights in 2023 sought to trigger the commencement of structural investigations into the entire situation, including the crimes committed against the Rohingya and the post-coup violence. The complaint was preceded by a 200-page report which included the “deportation and forcible transfer” of civilians both within Myanmar and into neighbouring Thailand and India following the crackdown on protesters. Both applications were rejected by the respective federal authorities on procedural grounds or the low likelihood of the presence of the alleged perpetrators on state territory.

The most advanced case currently is the criminal investigation by an Argentine federal court in Buenos Aires following a criminal complaint in 2019 by the Burmese Rohingya Organisation UK (BROUK) and former UN Special Rapporteur for the human rights situation in Myanmar and Argentine lawyer, Tomás Ojea Quintana. In an interview with Ojea Quintana, he noted that in hearings for which displaced Rohingya victims were flown in from Cox’s Bazar to give testimony, the detailed explanation of being forced to leave their villages due to the clearance operations was a key emphasis in all testimonies. In February 2025, the court ordered international arrest warrants against 25 senior military officials, including Senior General Min Aung Hlaing, for genocide and crimes against humanity against the Rohingya population. While transfers or deportations were not specifically included in the charges, the prosecutor’s report emphasised the “clearance operations” and creation of “precarious living conditions […], forcing them to seek refuge in the neighboring country of Bangladesh”. Ojea Quintana remarks that with the issuing of arrest warrants as a first step:

“the case of the Rohingya is a very good example to [specifically] develop an analysis of forced displacement.”

More recently, a growing number of UJ efforts are being made in the Asia Pacific region. Criminal complaints have been brought by human rights groups to the Department of Justice in Manila in 2023, the Court of First Instance in Dili, Timor Leste in January 2026 and the Attorney General’s office in Jakarta, Indonesia in January 2026. Importantly, the rights groups which brought the complaint in Indonesia have announced that they will present “evidence of forced displacement of the Rohingya” as part of the genocide allegations contained in the complaint. While these complaints are awaiting formal responses, they signal a growing push by civil society actors in the region to mobilise their own domestic jurisdictions to respond to deliberate forced displacement.

Where do We Stand on UJ and Forced Displacement

These efforts remain limited, and so far have not led to a criminal conviction. But alongside other UJ practices addressing forced displacement in Iraq, Chad, Sudan and Gaza, they demonstrate a growing recognition that UJ can be used as a domestic accountability mechanism to investigate and prosecute deliberate forced displacement. This is important, because it fills an accountability gap where meaningful international responses are limited. It also contributes to a broader transitional justice agenda by increasing awareness and education of forced displacement crimes, providing a platform for victim participation and establishing facts through evidence collection. As Alison Battisson, a human rights lawyer involved in bringing the Australian complaint, noted in an interview, “no one can deny that there’s a million Rohingya in Cox’s Bazar.” While that attempt was rejected, she concludes that it nevertheless:

“did get a lot of press and helped bring some attention to the Rohingya diaspora. […] It brought some conversation around Aung San Suu Kyi’s legacy.”

Thus, such steps – while limited – are critical for improving efforts to seek accountability for forced displacement not only of the millions in Myanmar, but around the globe.