Argentine Court Issues Arrest Warrants for 25 Myanmar Officials

On February 14, the news broke that a court in Argentina had issued arrest warrants for Senior General Min Aung Hlaing, currently the head of Myanmar’s military junta, for his role in alleged “genocide and crimes against humanity” against the Rohingya minority group.

The court’s ruling also listed 22 other military officials, including Soe Win, the regime’s number two, and – controversially – two civilian leaders: former State Counselor Aung San Suu Kyi and former President Htin Kyaw. In her ruling, Judge Maria Servini said that the allegations listed in the complaint “constitute crimes that violate human rights recognized in various international criminal law instruments, subscribed to by most countries in the world.” Argentina is now expected to request Interpol Red Notices for the 25 individuals.

The charges refer to the brutal “clearance operation” that the Myanmar military launched in Rakhine State in August 2017. The offensive, which has been described both as a potential “genocide” and a “textbook case of ethnic cleansing,” saw Myanmar soldiers and local vigilantes kill at least 6,700 people and expel more than 740,000, while shooting livestock and torching dozens of villages. Most of those driven out of Myanmar still languish today in the huge refugee camps around the city of Cox’s Bazar, Bangladesh.

The Argentinian case is just one of several that have been filed by activists under the principle of “universal jurisdiction,” which allows the victims to bring charges in foreign courts against “particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.” This particular case was filed in 2019, and an Argentine court accepted it in November 2021.

There is also a case underway at the International Court of Justice seeking redress for the Rohingya. And in November 2024, the chief prosecutor of the International Criminal Court announced that he had requested an arrest warrant for Min Aung Hlaing, with the promise of more to come.

The action by the Argentinian court was widely hailed as an advance for justice and accountability in Myanmar. Tun Khin, president of the Burmese Rohingya Organization U.K. (BROUK), which filed the initial case in Argentina in 2019, welcomed the latest ruling as an “historic step towards justice for Rohingya and everyone in Burma suffering under the Burmese military.”

While all of this is technically true – these are the first arrest warrants for the Rohingya genocide to be issued anywhere in the world – the chances that Min Aung Hlaing ever sees the inside of an Argentinian (or any other) jail cell remains vanishingly slim.

The work of building a legal case, and all the exhaustive work that it requires, is in some sense the easy part of the equation. Much more challenging is the imperative of enforcing the arrest warrants and gaining custody of the accused. At present, the best that can be said about these warrants is that they will marginally narrow the number of countries that Min Aung Hlaing and his henchmen can visit without some fear of arrest. And it is also true that those countries that are most likely to honor the Argentinian (or eventual ICC) arrest warrants are the very places that these leaders are least likely to visit.

All this is to say that for Min Aung Hlaing or any other Myanmar military leader to end up in Buenos Aires or The Hague would require a long and unlikely sequence of events. These would almost certainly involve his regime’s defeat by the resistance or removal from power in some sort of internal coup. Min Aung Hlaing’s captors would then need to agree to hand him over to an international court for trial, a decision that would likely be subject to all manner of domestic legal and political considerations. In other words, the conditions necessary for Myanmar’s junta chief to be tried in a foreign or international court would also probably be sufficient also to see him tried in a domestic one. Given these realities, it is hard to argue that the legal proceedings currently underway will do much to deter future possible offenders – one of the main goals of the international criminal justice project.

The fact that the Argentinian court has decided to pursue charges against the two civilian leaders adds an extra layer of political complexity to the case. Aung San Suu Kyi’s personal culpability for the ethnic cleansing of the Rohingya has been hotly debated since 2017. One can mount a strong case that she, as state counselor and Myanmar’s de facto leader at the time of the attacks, is responsible for abetting, defending, and downplaying the extent of the atrocities committed against the Rohingya, and running interference for the military while the operation was unfolding. (The case against Htin Kyaw, a ceremonial president who stepped down in 2018 due to health issues, is less solid.)

However, the events that have taken place since 2017 have for some observers cast the issue in a different light. In February 2021, three months after winning her second successive general election in a landslide, then 75-year-old Aung San Suu Kyi was removed from power by the military and has spent the past four years in its custody in an undisclosed location in the capital, Naypyidaw. In the years leading up to the coup, it was easy to perceive that “The Lady” stood on the same side as the military. Now that Aung San Suu Kyi is once again a victim of the military’s cruel treatment, the political valence and implications of the accusations against her have shifted.

In its statement praising the Argentinian court’s decision, BROUK said that it made a formal request to the court asking it “to consider the current political context in Burma and whether issuing arrest warrants for Aung San Suu Kyi and Htin Kyaw serves the best interests of justice at this time.” It said that its request was denied.

What BROUK’s statement did not say, as Shafiur Rahman noted in an article for The Diplomat last month, is that the organization had previously campaigned at considerable length for Aung San Suu Kyi to be prosecuted for her role in the Rohingya genocide. “For the cycle of violence to end, it is crucial that all those responsible for the genocide – whether they wear a uniform or not – are brought to justice,” BROUK’s President Tun Khin said when the petition was filed.

It remains unclear why BROUK changed its position on this, but the group is not the only one to question the wisdom of issuing arrest warrants for Aung San Suu Kyi and Htin Kyaw. “While Min Aung Hlaing and his associates should be brought to account,” the former British diplomat Derek Tonkin argued last month on X, “the inclusion of [Aung San Suu Kyi] and Htin Kyaw is bound to create animosity between Rohingya and other ethnicities in Myanmar, which was never intended.”

Much the same sentiment was expressed by the National Unity Government (NUG), which includes many former members of Aung San Suu Kyi’s National League for Democracy. In a statement on February 18, it said that the inclusion of Aung San Suu Kyi and Htin Kyaw in the Argentinian case “may create misunderstandings between the Rohingya community and other ethnic groups.” This, the NUG added, could “hinder long-term peace, reconciliation, and Myanmar’s democratic transition” and “obstruct the ongoing Spring Revolution, which is relentlessly fighting to bring an end to military dictatorship.”

Whether this is really the case remains to be seen; the NUG certainly has reasons to exaggerate the possible negative impacts of the warrants. However, what it reveals is that legal principles and political realities frequently do not run in parallel. It is also true that something can be both legally justified and politically unwise. Whatever its legal merits, political support for these proceedings is vital if they are to have any chance at success. As things stand, the NUG is likely to think twice before cooperating with the Argentinian authorities. Should it ever come to power inside Myanmar, and gain custody over some of those facing charges in Argentina, would it agree to hand them over, if it also involved giving over two of its own allies?

The Argentinian prosecutors would probably argue that accountability must apply to all perpetrators and not just those that are politically convenient. This is surely correct – but the situation in Myanmar is such that the Argentinian court may face a choice between a very slim chance at accountability and none at all.