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Lawyers in Melbourne have filed a private prosecution application against Myanmar’s leader, Aung San Suu Kyi, who is in Australia, on charges of crimes against humanity.
The private prosecution application faces significant barriers to proceeding – a universal jurisdiction prosecution in Australia requires the consent of the attorney general.
Aung San Suu Kyi, who is state counsellor and de facto leader of the Myanmar government, is accused in the application of crimes against humanity for the deportation or forcible transfer of a population in relation to widespread and ongoing human rights abuses inside Myanmar.
More than 650,000 Rohingya have crossed the border to Bangladesh since August, fleeing systemic violence from the country’s military including murder, rape, and the deliberate torching of villages.
Ron Merkel QC, a Melbourne barrister and former federal court judge, international lawyers Marion Isobel and Raelene Sharp, and Sydney human rights lawyers Alison Battisson and Daniel Taylor filed the private prosecution application in the Melbourne magistrates court late on Friday.
The application is being assessed by the court and a response is expected next week. A formal request has also been sent to the office of the attorney general, Christian Porter, asking him to consider consenting to the prosecution proceeding.
A statement from the legal team said there were “widespread and credible eyewitness reports … of extensive and systematic crimes against the Muslim Rohingyan population by the Myanmar security forces, including extra-judicial killings, disappearances, violence, rape, unlawful detention, and destruction of property and whole villages. Ms Suu Kyi has denied these events have occurred.
“It is alleged that Ms Suu Kyi has failed to use her position of authority and power, and, as such, has permitted the Myanmar security forces to deport and forcibly remove Rohingya from their homes.”
Aung San Suu Kyi – the 1991 Nobel peace laureate whose public image has been tarnished by her unwillingness to publicly condemn military atrocities against the Rohingya – is visiting Australia as part of the Asean Australia special summit, hosted by the federal government in Sydney.
She has spoken little about the Rohingya crisis in Myanmar’s western Rakhine state – and pointedly refused to use the word Rohingya. In a speech last September she said the latest violence in Rakhine was sparked by attacks on military outposts.
“It is not the intention of the Myanmar government to apportion blame or to abnegate responsibility. We condemn all human rights violations and unlawful violence.”
Australia formally recognises the principle of universal jurisdiction, giving Australian courts jurisdiction to hear allegations of the most serious criminal offences under international law, such as genocide, war crimes, and crimes against humanity, regardless of the nationality of the alleged offender, or the place of the commission of the offences.
There is an international precedent. The former Chilean dictator, Augusto Pinochet, was arrested in London under universal jurisdiction. He was placed under house arrest but did not face trial.
But there are diplomatic considerations with the prosecution of foreign leaders. As well, a universal jurisdiction prosecution requires the consent of the attorney general to proceed in Australia. It appears unlikely that the government that invited Aung San Suu Kyi to the country would then consent to her prosecution. A spokesman for the attorney general told the Guardian: “We haven’t been notified of any such action and if we were, wouldn’t comment on a matter that is before a court.”
There would also, almost certainly, be dispute over whether Aung San Suu Kyi, by virtue of her position as state counsellor, enjoys immunity from prosecution.
Aung San Suu Kyi is the not the head of state of Myanmar – that position is held by president Htin Kyaw – but Aung San Suu Kyi is the de facto, if not de jure, leader of the government. She is also foreign minister, a position that usually attracts immunity.
The UN said this week that the systematic persecution of the Rohingya ethnic and religious minority in the western Rakhine state bore “the hallmarks of genocide”.
At the summit in Sydney, the Australian prime minister, Malcolm Turnbull, was asked what he intended to say to Aung San Suu Kyi about the persecution of the Rohingya people. He said he would raise the issue with Aung San Suu Kyi at his bilateral meeting.
On Sydney Harbour, adjacent to the convention centre hosting the summit, Amnesty sailed a boat bearing a protest sign saying “Myanmar Stop Ethnic Cleansing”.