Is Argentina's warrant against Aung San Suu Kyi a mistake?

It is rare for an international arrest warrant to be issued against a Nobel Peace Prize laureate and political prisoner whose release is demanded by both the UN General Assembly and the UN Security Council. However, this is precisely what occurred in February this year, when an Argentinian court asked for the arrest of Aung San Suu Kyi.

The court's decision applies to 25 Myanmar citizens wanted on charges linked to genocide and crimes against humanity. The list includes not only Myanmar's military leader Min Aung Hlaing, but also former State Counsellor Aung San Suu Kyi and former President Htin Kyaw. Suu Kyi effectively served as Myanmar's top civilian leader before the military staged a coup in February 2021. She has been imprisoned ever since.

The court in Argentina claims it has the jurisdiction to order a warrant for Suu Kyi's arrest based on a legal principle that some serious crimes can be prosecuted regardless of where they were committed.

The specific case focuses on discrimination against Myanmar's Rohingya ethnic minority. The Muslim Rohingya live predominantly in the western state of Rakhine, and their status as citizens and as an ethnic group recognized by the state of Myanmar has been disputed for decades.

The Rohingya crisis of 2017:
Since 1988, Myanmar has seen an ongoing political conflict between the military and military-backed parties on one side and Aung San Suu Kyi and her party, the National League for Democracy, on the other. In 2016, after many years of stalemate, the military and Aung San Suu Kyi reached a truce. A kind of dual government was established, with Aung San Suu Kyi heading the civilian branch and Min Aung Hlaing heading the military, which had constitutionally secured independence and far-reaching political rights.

On October 9, 2016, Rohingya insurgents attacked several border and police posts of the Myanmar security forces. In August 2017, the security forces launched so-called "clearance operations." As a result, thousands of Rohingya were killed and around 700,000 fled to neighboring Bangladesh, with exact figures still unclear due to the nature of the ethnically-charged conflict.

While the military denied using excessive force, international watchdogs and the UN agree that Myanmar's actions against the Rohingya constitute grave human rights violations. Still, two questions remain: First, did the offensive amount to genocide? Second, how much of it was the responsibility of Aung San Suu Kyi?

The question of genocide:
Concerns that a genocide was happening in Myanmar have already been voiced before 2017. In 2015, the human rights organization Fortify Rights published a report with the Allard K. Lovenstein International Human Rights Clinic from Yale Law School in which was stated that there is "strong evidence that genocide is being committed against Rohingya."

Those voices only grew louder after 2017, and in November 2019, Gambia initiated a case at the International Court of Justice (ICJ) against Myanmar, claiming violations of the UN's Genocide Convention. The ICJ has yet to rule on the case, however, meaning that the existence of genocide remains unconfirmed in a legal sense.

But for human rights organizations like Fortify Rights, the Burmese-Rohingya Organization UK (BROUK) and the former UN Special Rapporteur on Myanmar, Tomas Ojea Quintana, there is no doubt that genocide did take place.

Quintana, an Argentinian, told Radio Free Asia that the court in his native country "understood what was at stake, which is the genocide against the Rohingya people."

The question of responsibility:
Aung San Suu Kyi was a globally renowned human rights advocate since the early 1990s until the events of 2017. She was also heading Myanmar's civilian government during the deadly wave of violence against the Rohingya.

As chief councilor, she was notably hesitant to speak out against the military and even went to The Hague in 2019 to defend Myanmar at the International Court of Justice. She denied genocide was happening in Rakhine but admitted human rights violations, which would be investigated by Myanmar.

She later confirmed this position in an interview with the Financial Times.

"War crimes were committed during the internal armed conflict with the Arakan Rohingya Salvation Army by members of Myanmar's security forces and civilians," she told the paper.

At the same time, Aung San Suu Kyi pointed to a report by the Independent Commission of Enquiry (ICOE) which was set up by Myanmar without Rohingya representatives.

"The ICOE found no evidence of genocide," she told the paper, despite its report recording "killing of civilians, disproportionate use of force, looting of property, and destruction of abandoned homes of Muslims."

For those who believe Myanmar troops committed genocide against the Rohingya, Aung San Suu Kyi's refusal to recognize it makes her complicit. But does her stance — admitting that human rights violations happened but not genocide — mean Aung San Suu Kyi is guilty of committing genocide?

What do we know about the Argentinian court order?
The reasons behind the Argentinian court's decision to seek an international arrest warrant are not fully clear, as neither the ruling nor the exact evidence on which the ruling was based are publicly available. DW contacted the Argentinian court and the Argentinian human rights commission to get more information in the matter, but received no reply.

In the months following the announcement, Myanmar expert and former ambassador Derek Tonkin published an academic paper on the issue, examining the sources which most likely led to the arrest warrant. He writes that "the petition [on which the decision of the court seems to be based] contains much narrative and opinion which are debatable and questionable, and in some areas are simply wrong."

Commenting on the claim that Aung San Suu Kyi and others validated the genocide against the Rohingya, Tonkin states, "it is not true and is supported by no evidence anywhere in the petition."

Tonkin also rejects the accusation that Aung San Suu Kyi was directly responsible for the events in Rakhine State during her time as state counsellor at the time.

"I find this totally unconvincing. The Tatmadaw [the Myanmar military] refused to accept Aung San Suu Kyi's appointment," he writes.

So far, the arrest warrant hasn't had any impact. Aung San Suu Kyi seems set to celebrate her 80th birthday next month as a prisoner in Myanmar as the civil war rages on. With the passage of time, the international arrest warrant might end up as a mere footnote in a long political career filled with legal battles.