High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

1280px-High_Court_of_Australia_(6769096715)

Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

The Judge is a Woman

The Universite libre de Bruxelles is hosting a conference on November 7 and 8, 2013 on gender and the judiciary: “The Judge is a Woman: Reality, Impact and Justification for Gender Diversity on the Bench. ” The link to the conference program is here.  Topics include “Taking Stock of Gender in the Judiciary – Where are the Women?”, “Gender Equality, Gender Diversity – A Condition of Legitimacy for the Judiciary?”, and “The Impact of Gender on the Bench: Do Women Judges Make a Difference?”  Participants include Anne Boigeol (Institut des sciences sociales et du politique/Ecole normale superieure de Cachan), Kate Malleson (Queen Mary, University of London), Arvind Agrawal (Central University of Himachal Pradesh), Judith Resnick (Yale Law School), Nienke Grossman (University of Baltimore), Anne Lagerwall (ULB), Ulrike Schultz (Fern Universitat in Hagen), Sally Kenney (Tulane University), Francoise Tulkens (former Vice President of the European Court of Human Rights), Laura Hilly (University of Oxford) and many others.  Baroness Hale of Richmond (Justice of the Supreme Court of the United Kingdom) and Susanne Baer (Justice of the Federal Constitutional Court of Germany) will provide closing remarks.  It promises to be an interesting and engaging event!