The legal principle of universal jurisdiction means that authorities in one country can prosecute someone for crimes committed in another country. Argentina has a universal jurisdiction law that meant it could investigate the genocide of the Rohingya. Burmese Rohingya Organisation UK filed a case in Argentina in 2019. In the UK our universal jurisdiction law is in desperate need of updating. The crime of torture can be prosecuted, but not genocide or crimes against humanity.
Arrest warrants have been issued by an Argentinian court for 25 people in all for their role in the genocide of the Rohingya. 22 members of the Burmese military, one village head, and Aung San Suu Kyi, who ran the civilian-led government at the time of the genocide, and President of the civilian government, Htin Kyaw. Both have been detained by the Burmese military since the 2021 coup.
The inclusion of Aung San Suu Kyi and Htin Kyaw is controversial. At the time the case was filed in 2019 Aung San Suu Kyi was leading a government which was denying that genocide and human rights violations against the Rohingya had happened. Despite well documented reports of the mass rape of Rohingya women, Aung San Suu Kyi had a flashing ‘Fake Rape’ sign on the Facebook page and website of her personal office. For years her office and her government’s publications published lies and propaganda whipping up fear and hatred against the Rohingya. Her government imposed increased restrictions on humanitarian and healthcare access for Rohingya, separate from those the military had imposed, and vigorously defended the Burmese military in a case about genocide of the Rohingya at the International Court of Justice. Aung San Suu Kyi and her government refused to use the name Rohingya. Denial of the identity of the Rohingya is a foundation stone of the genocide against them.
Defenders of Aung San Suu Kyi cite her establishment of the Kofi Annan Commission into the Rohingya issues (which had a limited mandate, no Rohingya representation and whose recommendations were only partially implemented), and the fact that she very likely faced behind the scenes pressure from the Burmese military, the details of which we don’t know.
Given the changed situation in Burma since the coup, Burmese Rohingya Organisation UK requested the prosecutor and court in Argentina not to include Aung San Suu Kyi and Htin Kyaw at this time. However, the court has dismissed this request and decided that there is enough evidence to justify issuing arrest warrants for them.
Regardless of the controversy over this, the issuing of arrest warrants for the head of the Burmese military and other senior commanders of the military is a hugely significant moment.
We have seen for decades that being allowed to get away with violations of international law has just encouraged the Burmese military to commit more and bigger crimes. Being allowed to get away with war crimes and crimes against humanity against ethnic people for decades encouraged them to believe they could get away with genocide, and when they were allowed to get away with genocide, they thought they could get away with another coup.
Now in Burma the Burmese military are fighting for their survival as resistance forces free more and more of the country, and it is a small Rohingya community organisation which has secured the first ever arrest warrants. Where the international community failed to uphold the law, people from Burma are stepping up.
Members of the Burmese military will have to think twice now before making any international trips. So-called Red Notice arrest warrants from Interpol could be issued, and, even if the generals stay hiding in Burma, at a future date a trial could take place without them being in Argentina.
This is the first in a series of legal blows which could hit the Burmese military this year. We are waiting for a decision by a different international court, the International Criminal Court, to issue an arrest warrant for Min Aung Hlaing as well over the crimes against humanity committed against Rohingya. It is also possible that the International Court of Justice case on whether genocide has been committed against the Rohingya could reach a conclusion later this year or next.
Justice and accountability are a vital part of the struggle for human rights and democracy in Burma. Last week the struggle took a big step forward.
