Argentina: Prosecute Crimes Against Rohingya in Myanmar
The Federal Court in Argentina should exercise its authority under universal jurisdiction to ensure justice for the grave crimes committed against the Rohingya.
BUENOS AIRES, September 30, 2021—A court in Argentina considering a criminal case against Myanmar officials for mass atrocity crimes committed against Rohingya in Myanmar should proceed, Robert F. Kennedy Human Rights and Fortify Rights said in an amicus curiae submitted to an Argentinian court today. If accepted by the Federal Court in Argentina, the case would be the first universal jurisdiction case related to the situation of the Rohingya worldwide.
“The court should exercise its authority under universal jurisdiction to ensure justice for the grave crimes committed against the Rohingya,” said Angelita Baeyens, VP of International Advocacy and Litigation at RFK Human Rights. “Pursuing accountability through universal jurisdiction will complement and add to global efforts to end impunity for atrocity crimes in Myanmar.”
In the amicus curiae submitted today to the National Chamber of Federal Criminal and Correctional Appeals in Buenos Aires, RFK Human Rights and Fortify Rights provided expert analysis to the court in support of a petition filed in Federal Court in Argentina on November 13, 2019 by Rohingya activist Maung Tun Khin of the Burmese Rohingya Organization U.K. (BROUK), six female Rohingya survivors, and two Latin American human rights organizations. The original petition urges the court to investigate, under “universal jurisdiction,” genocide and crimes against humanity, including sexual violence, committed with impunity against Rohingya in Myanmar.
Universal jurisdiction enables states to investigate and prosecute crimes under international law, such as crimes against humanity or genocide, regardless of where they occurred. The principle of universal jurisdiction is enshrined in the Argentine national legal framework, including in Article 118 of the Constitution.
Maung Tun Khin and BROUK are represented by Argentine lawyer Tomás Ojea Quintana, a former U.N. Special Rapporteur on human rights in Myanmar from 2008 to 2014 and a founding member of the International Advisory Board at Fortify Rights.
On July 12, 2021, a lower court in Argentina decided not to investigate atrocity crimes committed against the Rohingya in Myanmar. The court ruled that the Argentinian courts were not the appropriate forum to adjudicate crimes committed against the Rohingya because the Office of the Prosecutor at the International Criminal Court (ICC) is already investigating crimes against Rohingya.
Maung Tun Khin appealed the decision; the first appeal hearing was held on August 17.
In the 21-page amicus curiae, RFK Human Rights and Fortify Rights argue that the lower court in Argentina relied on a misunderstanding of the ICC’s principle of complementarity. The principle of complementarity maintains that the ICC is a “court of last resort” and may only exercise jurisdiction when States are unable or unwilling to do so; however, the rule as defined in the Rome Statute of the ICC is that the ICC would refrain from investigating if another State is already investigating, not the other way around. There is no international customary norm to support the lower court’s interpretation of complementarity.
The amicus curiae also explains that if the court were to accept the lower court’s argument, there would still be a variety of international crimes against Rohingya in Myanmar that the ICC is not at present investigating, as it is investigating only the crime of forced deportation.
Myanmar is not a State Party to the Rome Statute of the ICC. The ICC’s investigation into crimes against the Rohingya is limited to the forced deportation of Rohingya to Bangladesh and other related crimes partially committed in Bangladesh, which is a State Party to the Rome Statute.
The original petition filed by BROUK and others in Argentina covers a variety of crimes committed in Myanmar against the R