Frontier
MYANMAR
MYANMAR
By THOMAS KEAN | FRONTIER
Wednesday, December 04, 2019
In the second of our two-part series on justice and accountability in Rakhine State, we examine the use of “universal jurisdiction” in Argentina and the problems with Myanmar’s own investigation into allegations of abuses.
THE WHEELS of justice are moving in regards to Rakhine State across a range of institutions and countries.
In part one of this series we examined the roles of the International Fact-Finding Mission on Myanmar and Independent Investigative Mission for Myanmar, and recent developments in the International Criminal Court and International Court of Justice.
Myanmar has refused to recognise the ICC’s jurisdiction, but is taking a different approach to the ICJ. Since our article, State Counsellor Daw Aung San Suu Kyi has announced she will lead Myanmar’s delegation to respond to the allegations. As the country’s “agent”, she will represent Myanmar in all aspects before the ICJ. And yes, it seems she will speak in court: the agent has the same rights as a lawyer in a national court and normally opens the argument on behalf of their government.
The ICJ hearing will begin on December 10 with three days of oral arguments on The Gambia’s request for the court to announce “provisional measures” to stop Myanmar’s “genocidal acts” against the Rohingya who remain in northern Rakhine State.
But there is movement in other parts of the world, too, as well as closer to home.
THE WHEELS of justice are moving in regards to Rakhine State across a range of institutions and countries.
In part one of this series we examined the roles of the International Fact-Finding Mission on Myanmar and Independent Investigative Mission for Myanmar, and recent developments in the International Criminal Court and International Court of Justice.
Myanmar has refused to recognise the ICC’s jurisdiction, but is taking a different approach to the ICJ. Since our article, State Counsellor Daw Aung San Suu Kyi has announced she will lead Myanmar’s delegation to respond to the allegations. As the country’s “agent”, she will represent Myanmar in all aspects before the ICJ. And yes, it seems she will speak in court: the agent has the same rights as a lawyer in a national court and normally opens the argument on behalf of their government.
The ICJ hearing will begin on December 10 with three days of oral arguments on The Gambia’s request for the court to announce “provisional measures” to stop Myanmar’s “genocidal acts” against the Rohingya who remain in northern Rakhine State.
But there is movement in other parts of the world, too, as well as closer to home.
‘Universal jurisdiction’
How can a national court on the other side of the world consider a criminal complaint of genocide? The answer is universal jurisdiction – the principle that some crimes are so heinous and of such magnitude that they can be prosecuted regardless of where they occur.
Universal jurisdiction emerged in the 17th century in response to rampant piracy. It was used again after World War II to try war criminals, including at the Nuremberg Trials, and was developed further as a result of Israel’s prosecution in 1962 of Adolph Eichmann, a Nazi war criminal who had been hiding out in Argentina.
Since World War II the principle of universal jurisdiction has expanded significantly to cover acts such as terrorism and torture, and to reflect new international treaties such as the Genocide Convention.
Application of universal jurisdiction appears to be on an upswing, according to Swiss NGO Trial International. It has described 2017 and 2018 as a turning point because more states, particularly in Europe, are becoming serious about using universal jurisdiction to bring rights violators to justice.
While many states recognise some form of universal jurisdiction in their national laws, most only allow its application in fairly narrow circumstances – for example, if the accused is already in the state’s custody. Argentina is different; section 118 of its constitution allows the prosecution of crimes “committed outside the territory of the nation against public international law”. A more recent law clarifies that this includes crimes foreseen in the Rome Statute, including genocide and crimes against humanity, and gives Argentina’s federal courts jurisdiction.
Since 2009 many cases have been filed in Argentina under universal jurisdiction, the most prominent being for crimes allegedly committed in Spain during the Franco era.
And so, on November 13, the Burmese Rohingya Organisation UK filed a complaint in the federal court of the Argentine capital Buenos Aires calling for Myanmar’s military and civilian leaders – including Daw Aung San Suu Kyi – to be investigated and prosecuted for potential genocide and crimes against humanity.
Mr Tomás Ojea Quintana, an Argentine human rights lawyer who served as United Nations special rapporteur on human rights in Myanmar from 2008 to 2014, is providing BROUK with legal representation, and brings significant credibility to the filing. The complaint also has the support of two leading Latin American human rights organisations, Grandmothers of the Plaza de Mayo and the Foundation for Peace and Justice.
Unlike Gambia’s application to the ICJ under the Genocide Convention, the complaint filed in Argentina focuses on individual rather than state responsibility. The ICC, too, is examining individual responsibility, but only in a limited context: because Myanmar is not a party to the Rome Statute, the alleged crimes must have taken place at least in part on the territory of Bangladesh, which joined the ICC in 2010.
In that sense, the three cases are complementary rather than overlapping. BROUK’s filing to the Federal Court in Argentina notes that until now “no national or international judicial jurisdiction exists for dealing with the case as regards the crimes committed in the territory of Myanmar”.
The complaint draws significantly on the work of the International Fact-Finding Mission on Myanmar and the recently established International Investigative Mechanism on Myanmar, not only in terms of establishing the evidentiary basis for the complaint but also in reassuring the court that geographical distance and judicial resources in Argentina would not be an obstacle to proceeding with an investigation. It requests that the court make contact with the IIMM to gain access to evidence collected by the IFFM.
However, the complaint differs from the IFFM on a significant point: the culpability of civilian authorities in alleged genocide and crimes against humanity. The IFFM noted that Aung San Suu Kyi had not used her position or moral authority to stop or condemn the military’s actions, and that civilian authorities had “spread hateful and false narratives” and blocked investigations into alleged abuses, among other things. But it concluded that it was not possible to reasonably affirm that Aung San Suu Kyi’s government knowingly contributed to the alleged crimes.
BROUK’s complaint describes this analysis as shallow and contradictory to other parts of the IFFM report, and argues that the military’s actions “could not have been deployed without the complementation, the coordination, the support or the acquiescence of the different civilian authorities”.
It also lists several civilians as potentially liable for genocide, including the monk U Wirathu and politician U Nay Myo Wai.
It calls on the court to ensure the “perpetrators, co-perpetrators, participators and accessories be identified”, and the necessary steps be taken for them to give a statement, including through arresting or extraditing them as necessary.
As with the ICC, Myanmar has rejected the court’s jurisdiction and said it will not respond to the allegations.
If the case in Argentina proceeds, it will of course mean more bad press for Myanmar. But there could be practical implications for the country, too; for example, the court could conceivably issue arrest warrants for military and civilian leaders, including Aung San Suu Kyi, potentially limiting their ability to travel abroad.
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