The Debate | Opinion

Will a Legal Case in Argentina Bring Justice for the Rohingya?

A case in Argentina, under the principle of universal jurisdiction, seeks to hold Myanmar’s leaders accountable for the atrocities committed against the Rohingya people.

Will a Legal Case in Argentina Bring Justice for the Rohingya?
Credit: Depositphotos

On June 7, Rohingya witnesses testified before an Argentine court about the atrocities committed by the Tatmadaw, the Myanmar Armed Forces, against civilians during the so-called clearance operation in 2017. This is a small but significant step in the process of ensuring justice for the long-persecuted Rohingya people.

The Rohingya were arbitrarily deprived of their citizenship by the Myanmar government in 1982, and currently, they are the world’s largest group of stateless people. They have been described by the United Nations as one of the most persecuted and most discriminated against minority groups in the world. The Rohingya have been subjected to repeated bouts of ethnic cleansing by the Myanmar government – in 1978, 1991–1992, 2012, and 2015. Hundreds of thousands of Rohingya were forced to flee to Bangladesh in each of these instances.

Moreover, they were constantly subjected to all forms of oppression, including extrajudicial killings, arbitrary arrests, torture, rapes, restricted movement, restrictions on religious practices, discrimination in employment, and denial of access to social services. In 2015, a study conducted by the Yale Law School concluded that the Myanmar government was conducting a concerted campaign of genocide against the Rohingya people.

And yet the worst was yet to come. In 2017, the Tatmadaw launched a brutal “clearance operation” against the Rohingya. According to a study conducted by the Ontario International Development Agency, more than 24,000 Rohingya were killed by the Tatmadaw, other Myanmar security forces, and local Buddhist militants in the following months. About 36,000 Rohingya were pushed into burning buildings and 116,000 were subjected to beatings. More than 18,000 Rohingya women were raped. In addition, some 115,000 Rohingya homes were burned down and 113,000 others were vandalized. The extreme violence of 2017 forced more than 1 million Rohingya to flee to Bangladesh, where they still live as refugees. Smaller numbers of Rohingya sought refuge in India, Thailand, and Malaysia.

According to Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide is defined as:

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[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Moreover, according to the United Nations Security Council (UNSC) Resolution 1820 adopted in 2008, mass rape constitutes an act of genocide. The Myanmar government has perpetrated all of the aforementioned acts against the Rohingya people, including mass killings, mass rapes, and destruction of localities. In other words, the crimes committed by the Myanmar government against the Rohingya arguably constitute genocide, according to international law. It should be noted as well that Myanmar is a signatory to the 1948 Genocide Convention..

Several governments and international bodies have indeed accused Myanmar of genocide. In September 2017, France, Malaysia and the Permanent People’s Tribunal labeled the atrocities committed against the Rohingyas as a genocide. In December 2017, then-United Nations High Commissioner for Human Rights Zeid bin Ra’ad opined that the atrocities on the Rohingyas might constitute genocide. In September 2018 and March 2022 respectively, Canada and the United States followed suit.

Moreover, the United States, the United Kingdom, the European Union, and Canada have introduced limited and targeted sanctions on Myanmar government officials and entities as a punishment for the genocide against the Rohingya. However, these steps have proved inadequate. They have so far failed to either bring about a just and durable solution to the Rohingya crisis or punish the perpetrators of genocide.

Seeking a stronger international response, Gambia, backed by the Organization of Islamic Cooperation (OIC), filed a case against Myanmar at the International Court of Justice (ICJ) in November 2019, accusing Myanmar of violating the 1948 Genocide Convention by committing acts of genocide against the Rohingyas. The U.S., the U.K., the EU and Canada have expressed their support for the case. According to Article 94 of the U.N. Charter, all member-states of the U.N. are bound to comply with the decisions of the ICJ, and if any member-state refuses to do so, the UNSC can undertake measures against that country. Myanmar is a member of the U.N., and accordingly, it must accept the decision of the ICJ. In addition, the International Criminal Court (ICC) approved a full investigation into the crimes of the Myanmar government against the Rohingya.

At the same time, the Burmese Rohingya Organization UK (BROUK) petitioned Argentine courts to investigate the role of Myanmar’s civilian and military leaders, including former State Counsellor Aung San Suu Kyi and current Chairman of the State Administration Council Senior General Min Aung Hlaing, in the atrocities committed against the Rohingya.

Under the legal principle of universal jurisdiction, such crimes can be tried anywhere in the world irrespective of the place where they were committed. The Independent International Fact-Finding Mission on Myanmar had recommended pursuing universal jurisdiction cases against the Myanmar government, and the legal principle is enshrined in Article 118 of the Constitution of Argentina. So, following a dialogue with the ICC to ensure that the case does not duplicate that of the ICC, the Second Chamber in the Federal Criminal Court in Argentina accepted the case.

In November 2019, six Rohingya women, all residing in Bangladesh as refugees, provided testimony about the crimes of the Myanmar government, including killings of their relatives and sexual violence, before an Argentine court through a virtual platform. On June 7, some Rohingya witnesses appeared in person before the Argentine court to testify about the atrocities of the Tatmadaw. This is a historic development for the Rohingya people, because this will help ensure that the international community does not forget the Rohingya genocide.

From a realist perspective, historical experience suggests that punishing perpetrators of genocide is possible only under some exceptional circumstances. Perpetrators of the Rwandan genocide, for example, were brought to justice only after the military defeat and fall of the Hutu-dominated Rwandan government in 1994. Perpetrators of the Bosnian genocide were brought to justice only after the removal of the government of Republika Srpska in 1996 and the Yugoslav government in 2000. Thus even if the ICJ, ICC, and Argentine judiciary rule against the government of Myanmar, actually punishing those responsible for the genocide against the Rohingyas might prove very difficult.

Still, there is a Latin phrase “Fiat justitia ruat caelum,” which is translated into English as “let justice be done even though the heavens fall.” This signifies that justice should be pursued under all circumstances.

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Genocide is a heinous crime against humanity, and perpetrators of such crimes must be held accountable to ensure justice for the victims. Therefore, despite the difficulties, the international community should wholeheartedly support the ICJ, ICC, and Argentine cases with regard to the Rohingya genocide in order to ensure justice for the victims and prevent the repetition of such a scenario.