Versión en español aquí.
Judges listened attentively as Maun Tung Khin argued, in English, before an Argentine appeals court via videolink. He reminded the judges of attacks on his community half a world away in Myanmar, carried out by military and paramilitary forces. Villages attacked, women raped, families forced to flee as their homes were burned; it is impossible to attain justice at home, he added. The judges thanked him, as they considered whether Argentina should accept jurisdiction over the crimes committed against Khin’s ethnic community, the Rohingya.
On November 13, 2019, the Burmese Rohingya Organization (UK) brought a case to the Argentine courts alleging that military forces committed genocide and crimes against humanity between 2012 and 2018 against Rohingya communities. The complaint recounted a history of discrimination, denial of citizenship and oppression, escalating after 2012 to include massive attacks on communities, killings, torture, mass rape and finally displacement of Rohingya communities. Hundreds of thousands of Rohingya fled Myanmar into neighboring Bangladesh to escape the army. The complainants asked Argentina to hear the case against the leadership of the Tatmadaw (military) under the principle of universal jurisdiction.
Universal jurisdiction gives any country the ability to try those who have committed a very small number of heinous and hard to prosecute crimes, even if they were committed abroad or by nationals of another country. Argentina incorporates universal jurisdiction into its law as customary international law, through article 118 of the Constitution, as well as through the primacy of international human rights treaties in Argentine law. Indeed, Argentina had been the beneficiary of the application of universal jurisdiction for crimes committed during the military dictatorship of the 1970s and 80s, which were investigated in Spain, Germany and other European countries. In the 1990s, Argentina’s courts accepted a complaint against the last remnants of the Franco regime for crimes committed in the aftermath of Spain’s civil war; that case is still under investigation. It is thus no stranger to universal jurisdiction.
So it was with some surprise that the complainants received the trial court’s refusal to open a case. The judge (who is also the judge in the Spanish civil war case) was most concerned that an Argentine case would overlap too much with pending cases at the International Criminal Court (ICC) and the International Court of Justice (ICJ), which would lead to confusion and waste of resources. A universal jurisdiction prosecution should take a back seat to any international tribunal, under a principle of subsidiarity, she held. Moreover, the judge said, unlike in the Spanish case, here Argentina had no common language or legal traditions that might facilitate an investigation.
The judge’s decision, now on appeal before the Court of Appeals, raises a number of troubling questions. First, to what extent should national courts defer to international ones, and how similar must the cases be? Is the choice between national and international courts an either/or choice, or can the two coexist, at least during an investigative phase?
The cases before other courts
The Rohingya advocates argued that none of the pending cases would pursue criminal trials for the murders, rapes, disappearances and destruction caused by the military. First, a domestic trial in Myanmar, a country controlled by a military dictatorship, was impossible. The judge pointed to a local commission of inquiry that found war crimes and human rights violations, and seemed to hold out hope that domestic trials would be possible; that hope was probably dashed by the 2021 military takeover.
Gambia brought the ICJ case alleging a violation of the Convention Against Genocide, but unlike the Argentine case, that case is against the state of Myanmar itself, not individuals, and does not determine criminal responsibility. ICJ cases are also notoriously prolonged. Other ICJ cases, including Bosnia v. Serbia(concerning genocide in the former Yugoslavia) have not precluded simultaneous criminal investigations, both international and domestic. At the least, the ICJ and Argentine cases are significantly different in their defendants and potential remedies.
The International Criminal Court investigation is more complicated. Myanmar is not a state party to the ICC, and the Security Council has been unable to agree to ask the Court to take up an investigation. In November 2019, a Pre-Trial Chamber of the ICC, acting on review of the Prosecutor’s decision to open an investigation, held that because neighboring Bangladesh is a party to the Rome Statute of the ICC, and alleged crimes within the court’s purview pushed many Rohingya over the border as refugees, the ICC has jurisdiction over possible crimes that took place at least in part on Bangladeshi territory. This includes the crimes of deportation and persecution, at a minimum. It’s not clear, however, to what extent the investigation can result in broader charges on the underlying connected crimes of murder, rape, and the like. The language of the Pre-Trial Chamber’s decision seems to leave the door open to a broader consideration of the underlying context, but not necessarily to criminal charges for purely Myanmar-based conduct. In any case, it will be up to future decisions of the Prosecutor and the Court to decide how far they are willing to go. Much of the underlying conduct may remain unaddressed, as the victims argued to the court.
The fallacy of subsidiarity
Given that uncertainty, which way should the Argentine appeals court rule? There are some powerful reasons to go forward with an independent investigation, at least for now. The case can provide a measure of redress and legal recognition of the atrocities committed against the Rohingya. Argentina has been a pioneer in international justice and has contributed much to the field from its own reckoning with its past. Allowing this case to proceed honors that tradition. It could allow the region to play a greater role internationally regarding accountability for grave crimes committed globally. Even without a trial or conviction, arrest warrants in the case would stigmatize the defendants by name, limit their travel outside Myanmar, and potentially freeze some of their assets. None of this negates the evidentiary and practical difficulties, which are considerable, but perhaps less so in a time of virtual hearings and smartphone videos.
Moving forward, at least while doubts about the scope of the ICC investigation persists, would also strengthen the international norms involved. The UN Human Rights Council in September 2018 created the Independent Investigative Mechanism for Myanmar to collect evidence and prepare files for criminal prosecution “in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes.” It did so notwithstanding that the ICC’s Pre-Trial Chamber had already agreed to open an investigation. The Council not only foresaw the value of such an entity despite the ICC’s investigation, but that the IIMM may be in a position to materially assist with cases such as the Argentine –if the appeals court decides to open it.
The Human Rights Council’s approval of national investigations, including under universal jurisdiction, reaffirms that international justice relies primarily on national jurisdictions to make it real. That idea of complementarity underlies the structure of the Rome Statute as well. The ICC is supposed to be the court of last resort, not the first in line. Moreover, the notion of subsidiarity, understood as the primacy of international institutions over national ones, is nowhere either in the Rome Statute or in customary international law regarding criminal trials. A number of states have incorporated a subsidiarity requirement into their domestic universal jurisdiction statutes, but many others – including Argentina – have not. Given the clear preference for national jurisdictions in the Rome Statute itself, it seems unwarranted and dangerous to read a subsidiarity requirement into general international criminal law. And especially so if it involves a preference for similar legal systems and languages, thus negating the “universal” in universal jurisdiction.
It may be that at some point a decision must be made about the most adequate forum in which to hold the Myanmar generals responsible. But today, the problem is not too many forums but too few. Allowing an investigation where there is no other conviction (or even trial) neither creates double jeopardy nor violates due process principles. Hopefully, the Argentine appeals court will rectify a crabbed view of the relationship between national and international courts.
*President of the Board of Directors at DPLF and Distinguished Professor of Law at the University of California Hastings College of the Law