Breaking Borders: Argentina’s Historic Legal Strike Against Myanmar’s Atrocities

By Rahul Rao Pawar. He is a student at Hidayatullah National Law University, Raipur, with a keen interest in international law. Passionate about the ever-evolving criminal justice system, he aspires to contribute to the field by working toward social justice and the betterment of society.

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“International law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia”

-       Judge Gilbert Guillaume

1.     Introduction

A landmark decree was passed on 13^th February 2025, in Buenos Aires, Argentina when a federal criminal court issued international arrest warrants for several high-ranking Myanmar officials, including Senior General Min Aung Hlaing and former President Htin Kyaw.  The case was lodged in 2019 by a group named Burmese Rohingya Organisation U.K. (BROUK) against the officials for their involvement in crimes against humanity and genocide, specifically directed at the Rohingya sect in Myanmar. The issuance of warrant has created a quandary, due to its significance, both legally and in its broader impact on the pursuit of justice globally. These atrocities gained momentum in 2017, and the United Nations[A1] , characterised it as an ethnic cleansing, involving mass killings, widespread sexual violence, and the deliberate destruction of entire villages. The effects of these atrocities were also faced by the neighboring nation of Bangladesh in the form of migration of around one million Rohingya refugees. Argentina has historically showcased commitment to international human rights and embedded universal jurisdiction into its legal system. Issuing these warrants is a groundbreaking step toward justice for the Rohingyas. Albeit, enforcing them presents significant challenges in regard to the response of Myanmar’s military rule.

Through this blog, the author delves into Argentina’s unprecedented use of universal jurisdiction to prosecute Myanmar’s officials for crimes against the Rohingya sect. Firstly, the blog details the Rohingya Crisis, historical and legal foundations of universal jurisdiction, highlighting Argentina’s commitment to international justice. Further, it analyzes the challenges associated with enforcing such jurisdiction inter alia issue of extradition. Furthermore, the blog examines the broader implications of this decision on global accountability mechanisms and the fight against impunity for international crimes.

2.     The Rohingya Crisis, a humanitarian tragedy

The term ‘Rohingya’ literally means an inhabitant of Rohang which is the name for Sakhine state, the home of Rohingyas, who are presently the world’s largest stateless population. The Rohingyas have a history of socio-economic and political marginalization by the Myanmar government. The community is present in Myanmar since centuries but is not recognized as the country’s official ethnic group leading to their exclusion from Myanmar’s 1982 citizenship law. This exclusion has since lead to widespread discrimination which has also resulted in various violent military faceoffs. The crimes were at peak in 2017 when the Myanmar military unleashed their ‘ethnic cleansing’ as termed by the UN after the Rohingya militants attacked the military border post. While women and Children faced the most widespread sexual violence, the Myanmar military forces are also accused of torturing and murdering Rohingyas. These atrocities led to a widespread mass exodus of nearly one million Rohingyas who sought refuge in Bangladesh. These actions of the Myanmar Junta have attracted different responses by the international community. The UN has termed it as genocide whereas, several countries like the United States and Canada have imposed sanctions on Myanmar. India’s approach to this crisis has been composite, as India launched ‘Operation Insaniyat’ in 2017 with the goal of providing humanitarian aid to the Rohingya refugees. Postea, Rohingya refugees in India were declared ‘illegal immigrants’ with a strong stance towards deporting them by the Indian government. Albeit the same was challenged in the case of Mohammad Salimullah v. Union of India where the Supreme Court of India allowed their deportation subject to de règle procedures.

3.     Universal Jurisdiction

Universal Jurisdiction flows from an international law doctrine which is wide in its quintessence as it grants nations power to prosecute individuals for crimes without considering the individual’s nationality and the location of crime’s commission. Malcolm Shaw defines it as: “the competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognized by international customary law.” This doctrine is based on the idea that fight against impunity is borderless. This doctrine has evolved from the idea that some crimes are so grave in nature that any state can assert jurisdiction and ensure that justice is served. Universal Jurisdiction started to gain importance after the World War II when the Nazi leaders where trialed in Nuremberg and the Japanese military leaders were tried in Tokyo. Then in 1949, Geneva Convention was adopted and the goal of the convention was to set up laws of war and definitions of war crime. The latter specifies that all states parties to the Conventions must prosecute perpetrators of war crimes in their own courts or hand them over to another state that will prosecute them. The most important byproduct of Universal Jurisdiction is to make the individuals in power liable and avoid giving them impunity.

4.     Argentina’s legal framework and the decision

The state of Argentina has ideals of human rights deeply embedded in its framework, this is the outcome of its own history of human rights violations during the “Dirty War” (1976-1983). In the Dirty War thousands of people were subjected to torture and extrajudicial killings and some were made to forcefully disappear. Hence, the nation has a strong stance on commitment to justice and human rights which has led to the nation’s adoption of Universal Jurisdiction in its legal framework. The above can be substantiated by the Section 118 of Constitution of Argentine Nation as it grants the authority to prosecute foreign nationals for international crimes committed outside the nation to the national courts—a sui generis provision. This framework is powerful and makes sure that justice is served and the perpetrators of the heinous crimes regardless of their nationality or location do not escape justice. The Argentinian Courts have brought into use the power of Universal Jurisdiction in several precedents, particularly in cases relating genocide, war crimes, crimes against humanity, and the most important, cases involving crimes committed during the military rule in Argentina. Aforesaid adherence of Universal Jurisdiction doctrine leads to the conclusion that Argentina is a patron for international justice, even when the crimes have been committed by foreigners in foreign territory. This decision of Argentina highlights the challenges involved in the implementation of the doctrine. The practicality of arresting and extraditing the perpetrators from Myanmar presents complex challenges to a great degree when Myanmar is under a military rule which has not accepted the voices of the international community and has not showed much interest in adhering to international norms. Albeit the challenges, the Argentine court’s decision sets a precedent for other nations to adopt similar measures and hence, strengthening the global commitment to prosecuting the serious international crimes.

5.     Analysis and Challenges

This decision to issue arrest warrants against senior Myanmar officials who are the alleged perpetrators of genocide and crimes against humanity shows a broader shift in international law pertaining to the practice of universal jurisdiction. When a state like Argentina seeks to prosecute foreign officials for genocide committed abroad, it is following a few notable precedents. One such landmark case is Attorney-General of Israel v. Adolf Eichmann, where Israel prosecuted a Nazi official for the Holocaust. Eichmann committed crimes in Europe during WWII, and neither the victims nor the perpetrators were Israeli, but regardless, Israel asserted universal jurisdiction, arguing such crimes offend the law of all nations. The District Court in Jerusalem famously declared that international law did not limit states’ jurisdiction over such crimes, on the contrary, it “was actually in need of the legislative and judicial organs of every state” to give effect to international prohibitions by bringing perpetrators to trial. Simply put, genocide and crimes against humanity are crimes under international law, and any state could invoke universal jurisdiction to prosecute them. Due to the challenge of how to reach Eichmann, he was kidnapped from Argentina by Israeli agents of Mossad.

Argentina’s action reflects such precedents, basically Argentina is asserting that for egregious crimes like genocide, its courts can act as an institution of last resort. This action is backed by the view that genocide is subject to universal jurisdiction under customary international law. Argentina is relying on reasoning that genocide violates peremptory norms and obligations erga omnes, warranting any state’s intervention, the International Law Commission’s draft Code of Crimes against the Peace and Security of Mankind (1996) explicitly listed genocide among crimes for which each state should establish jurisdiction and either extradite or prosecute offenders present in its territory. While Myanmar’s own courts or an international tribunal would be the more direct and easily approachable forums, universal jurisdiction provides a lawful alternative when those direct and easier paths fail.

While invoking universal jurisdiction is a significant step, its effective enforcement presents distinct challenges. A major challenge is getting hands on suspects who are outside the prosecuting state’s territory. International law imposes important limits on how states can bring accused persons to justice, and the present scenario highlights these issues. As per Malcolm Shaw, it is “contrary to international law for state agents to apprehend persons or property abroad”, since that violates the sovereign rights of the foreign state. An example here is Eichmann abduction from Argentina—legally this was “a clear breach of Argentina’s territorial sovereignty and an illegal exercise of Israeli jurisdiction”. The proper course is to request extradition or otherwise obtain custody with the host state’s cooperation. The conundrum here is there is no automatic obligation to surrender suspects in the absence of a treaty or agreement, if a country that harbors the accused does not have an extradition treaty with Argentina or chooses not to cooperate, Argentina cannot compel that country to hand over the person. Regardless of treaties political and legal hurdles can impede surrender. In universal jurisdiction cases, suspects are often powerful people of their home country, making voluntary extradition highly unlikely—a situation that Argentina faces today. The legal ability to assert universal jurisdiction does not guarantee that suspects will be brought to court. Enforcement relies on custody, which in turn hinges on extradition or incidental arrest. Argentina, by initiating the case, may be preparing the legal scaffolding, but it faces the real-world challenge that Myanmar’s leadership is unlikely to cooperate.

6.     Conclusion

Ultimately, Argentina's decision to issue international arrest warrants for Myanmar officials inculpated in the genocide of the Rohingya population is a watershed moment in the pursuit of justice for the victims of this horrific scenario. This situation underscores the crucial role of Universal Jurisdiction in holding perpetrators accountable for international crimes, while being protected by their state. Argentina has adopted Universal jurisdiction which in turn grants Argentina power to seek justice for the Rohingyas, albeit Myanmar’s refusal to cooperate with the international community. The military rule in Myanmar is contrasting the extradition of its powerful official for their prosecution. Therefore, while the court’s decision is triumphant, there still remains a big gap to be addressed to ensure that such warrants are enforced and justice is served. Finally, there is need of continued support for the Rohingya refugees, and ensure that they receive the humanitarian aid, protection and opportunities to rebuild their lives. Argentina’s action is demonstrating the power of Universal Jurisdiction through national courts in the fight against impunity globally.