Australian Attorney-General Christian Porter says he will not consent to a move in a Melbourne court by human rights lawyers to prosecute Myanmar leader Aung San Suu Kyi for crimes against humanity.
The lawyers filed an application in the Melbourne Magistrates Court on Friday for a private prosecution of Suu Kyi, who is in Australia, alleging she forced out hundreds of thousands of Rohingya Muslims from her country.
The application must first be approved by a magistrate before it goes to the federal attorney-general to decide if the case proceeds.
And Mr Porter on Saturday signalled he could not consent to prosecute.
“Aung San Suu Kyi has complete immunity, including from being served with court documents because under customary international law, heads of state, heads of government and ministers of foreign affairs are immune from foreign criminal proceedings and are inviolable (they cannot be arrested, detained or served with court proceedings),” Mr Porter said in a statement.
But Sydney-based Alison Battison, who is one of five lawyers behind the effort, said Mr Porter’s decision is appealable.
“The Attorney-General is yet to respond to us, but when he does, we’ll address that then,” Ms Battison said.
“We wouldn’t have done it if we didn’t think we had a chance … it’s a textbook example of crimes against humanity.”
The lawyers allege Suu Kyi committed crimes against humanity by the deportation and forcible transfer of the Rohingya people. More than 700,000 Rohingyas fled the predominantly Buddhist Myanmar last year, claiming they are the victims of a systematic, violent purge at the hands of the country’s military.
Suu Kyi, a Nobel peace prize laureate and Myanmar’s state counsellor, has come under intense criticism for her public silence on the atrocities, which UN officials have said appears to be genocide.
Suu Kyi, who is also Myanmar’s foreign affairs minister, is in Sydney this weekend for a meeting of ASEAN leaders, in which Indonesia’s leader promised he would raise the crisis. Australian Prime Minister Malcolm Turnbull would not commit to talking about the issue.
Australian courts have the power to hear serious international criminal cases – such as genocide – regardless of where the alleged offences occurred under the principle of universal jurisdiction.
While the legislation allows applications to be made directly to a court, the decision to prosecute still rests with the attorney-general. Appeals are likely to be heard by the High Court.
Ms Battison called the process disturbing.
“We have these mechanisms in our domestic legislation that is meant for this situation, so we should exercise them and the government should exercise them. We should not kowtow to avoid a difficult conversation with state officials who are complicit in crimes against humanity,” she said.
The principle of universal jurisdiction was used in 1998 when former Chilean dictator General Augusto Pinochet was arrested in London over human rights violations. He was held for a year, but never faced a trial and was released.
A decision from the Magistrates Court of Victoria is expected to be made on Monday.