Lawyers in Melbourne filed a private prosecution application against Burmese State Counselor Aung San Suu Kyi, who was in Australia, on charges of crimes against humanity.
The private prosecution application faces significant barriers to proceeding — a universal jurisdiction prosecution in Australia would require the consent of Australian Attorney-General Christian Porter.
Aung San Suu Kyi 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 Burmese military including murder, rape and the deliberate torching of villages.
Queen’s Counsel Ron Merkel, a Melbourne barrister and former Australian Federal Court judge, international lawyers Marion Isobel and Raelene Sharp, as well as Sydney human rights lawyers Alison Battisson and Daniel Taylor on Friday filed the private prosecution application at the Melbourne Magistrates’ Court.
The application is being assessed by the court and a response is expected next week. A formal request has also been sent to Porter’s office, 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.”
“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,” the statement said.
Aung San Suu Kyi 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 in September last year 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,” she said.
Australia formally recognizes 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 where offences were committed.
There is international precedent. Former Chilean president Augusto Pinochet was arrested in London under universal jurisdiction. He was placed under house arrest but did not face trial.
However, there are diplomatic considerations with the prosecution of foreign leaders. There would almost certainly be dispute over whether Aung San Suu Kyi, by virtue of her position, enjoys immunity from prosecution.
Aung San Suu Kyi is the not the head of state of Myanmar — that position is held by Burmese President Htin Kyaw — but she is the de facto, if not de jure leader of the government. She is also minister of foreign affairs, a position that usually attracts immunity.
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