IN THE MATTER OF A PROSECUTION OF AUNG SAN SUU KYI FOR CRIMES AGAINST HUMANITY FILED IN THE MELBOURNE MAGISTRATES COURT ON 16 MARCH 2018 REQUEST FOR CONSENT OF THE ATTORNEY-GENERAL, A. INTRODUCTION 1 My full name is Daniel Robert Taylor and I am a registered Migration Agent and Solicitor at Sydney West Legal and Migration. My business address is PO Box 3140, Mt Druitt Village ation@yahoo.com, Thave been New South Wales 2770 and my email is taylormi: representing members of the Rohingya Community in Australia in claims for refugee status or other migration issues. I have been requested by members of this community to bring the proceedings described below because members of community fear reprisals in Myanmar if they were to do so personally. 2 On 16 March 2018, I sought to commence a prosecution against Aung San Suu Kyi (Ms Kyi) by filing a charge with a Registrar of the Melbourne Magistrates’ Court. The charge is, for the offence of “crimes against humanity — deportation or forcible transfer of population” as defined in section 268.11 of the Schedule fo the Criminal Code Act 1995 (Cth) (the Criminal Code) (the charge). The Summons and the charge are annexed to this request. 3. I attended the Melbourne Magistrates’ Court in person and lodged the signed charge sheet and summons. Those documents are presently being considered by the Registrar. 4. I write to seek your consent to the prosecution, which is required by s 268.121 of the Criminal Code. 5. Section 268.121 requires that proceedings for crimes against humanity must not be commenced without the Attorney-General’s consent and may only be prosecuted in the name of the Attorney-General. However, section 268.121(3), upon which I relied to sign the charge and seek the Summons, confirms that a person may be charged, in connection with an offence before the necessary consent has been given. 6 Sufficient evidence exists for you to give your consent for the prosecution of Ms Kyi in relation to this offence. B. APPLICABLE LAW AND PROCEDURE i Private Prosecutions of Commonwealth offences 7 The proceeding was commenced by me as a private prosecution. 8. Section 13 of the Crimes Act 1914 (Cth) declares that unless a contrary intention appears in the legislation creating the federal offence (here, the Criminal Code), any person may institute proceedings for the preliminary examination and committal for trial of an offender in respect of any indictable offence against a Commonwealth law.9. ‘The crime of “deportation or forcible transfer of population”, is an indictable offence against 2 Commonwealth law, namely section 268.11 of the Criminal Code. This is discussed in detail in Part C below. Having regard to section 268.121 (3) there is no contrary intention for the purposes of section 13 of the Crimes Act ii. Universal Jurisdiction 10, Under section 268.117 of the Criminal Code, Australia has jurisdiction over crimes against humanity, whether or not the conduct constituting the alleged offence occurs in Australia, and whether or not a result of the conduct constituting the alleged offence occurs in Australia, Il, This extended geographical jurisdiction is commonly known as universal jurisdiction, It is @ reflection of the principle that every State has the duty to exercise its criminal juris over those responsible for crimes against humanity. 12, Australia can therefore exercise jurisdiction over Ms Kyi in respect of the charge without needing to show a geographical link between the alleged offending and the territory of Australia, iii, Head of State Immunity does not bar this prosecution 13, In Australia, visiting foreign heads of State are immune from criminal jurisdiction. Section 36(1) of the Foreign State Immunities Act 1985 (Cth) (the Foreign State Immunities Act) extends the immunities within the Diplomatic Privileges and Immunities Act 1967 (Cth) (which in turn incorporates the 1961 Vienna Convention on Diplomatic Relations into Australian law) to the head of a foreign State, and the spouse of a head of a foreign State, 14, However, the Foreign State Immunities Act does not define who the “head of a foreign State”. 15. Myanmar’s current head of state is its President Htin Kyaw. 16. Ms Kyi, who is often described as a de facto head of State, currently holds Ministerial office (see [19] below) and has the newly created role of State Counsellor, which has a role akin to that of Prime Minister. But, she is not the head of state. Lae Even if she were to claim head of state immunity there are real problems that would confront her in relation to the jus cogens jurisdiction that is exercised concerning crimes against humanity. There have been very few cases in Australia considering head of state immunity', and none that have considered if or how the immunity operates with respect to government officials facing charges of crimes against humanity. There is a body of case law that includes the House of Lords decisions in Pinocher* and the French Court of Cassation case of Gaddafi® that deals with this issue which, if raised by Ms Kyi, is one that is appropriate for determination by the courts in Australia rather than by executive decision. ' Thor Shipping A/S v The AI Duhail (2008) 173 FCR 524 is the only Australian case of substance to consider the issue of head of state immunity. Dowsett J noted the lack of interpretive materials on section 36 of the Foreign States Immunities Act and tuned to UK and customary sources of law in his finding, ? Rv Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (1998] All ER 897; and Pinochet Ill 2000] 1 AC 147. > Cour de Cassation [French Court of Cassation}, 00-8721, 13 March 2001 reported in Bull crim n 64, 218c THE CHARGE i Factual background 18. It is not my intention to repeat facts that have been established by credible international organisations and their reports that are referenced in this Request for Consent. I do however provide by way of background the following information, with appropriate references. Aung San Suu Kyi's Position 19. Ms Kyiis the leader of the Myanmar National League for Democracy (NLD). She is also the incumbent: (a) State Counsellor; (b) Minister of Foreign Affairs; and (c) Minister of the President's Office. Ms Kyi's position as Minister of Foreign Affairs gives her a seat on the National Defence and Security Council 20. Ms Kyi enjoys enormous personal popularity in Myanmar, and political influence through the NLD’s parliamentary majority. NLD holds the seats for Ministry of Commerce and Ministry of Finance and Planning. As such, it controls the budget. 21. The president, Htin Kyaw, is a close confidante of Ms Kyi’s. As an example of her power, the position of State Counsellor was created for Ms Kyi. Ms Kyi is constitutionally prevented from being President because she has children who ate foreign nationals. 22. Under the Constitution of Myanmar adopted in 2008, 25% of Parliamentary seats are reserved for the military. As such, Ms Kyi is effectively in a power sharing arrangement with the Burmese military The Rohingya 23. Until mid-2017, Myanmar had a significant population of Muslim Rohingya (estimates are of over I million), Muslim Rohingya are indigenous to Myanmar and are lawfully residing in Myanmar. Most Rohingya have access to some form of land ownership, primarily either through grant lands or agricultural land ownership. 24. Muslim Rohingya have effectively been rendered stateless by the Myanmar Government. They are denied citizenship rights, including the right to register births, the right to a passport, access to medical treatment, the right attend school and the right to own property.° ‘The Myanmar Government has either stripped the Rohingya of their rights (including the right to a passport, to medical attention, to attend school and to own property), or has not granted such rights (the birth, for example, of new born babies to Rohingya parents are not registered, and as such, the child grows up without citizenship rights). The Rohingya crisis 25. Since approximately 25 August 2017, over 655,000 Rohingya have been forced to flee Myanmar as a result of Myanmar Government actions. The majority have fled to “Trevor Gibson, Helen James and Lindsay Falvey, Rohingya Insecurity and Citizenship in Myanmar, (Thaksin University Press, 2016), 126, and Scott Leckie and Ezekiel Simperingham, “Housing, Land and Property Rights in Burma,” Geneva: Displacement Solutions and the HLP Institute, vol. 8 (2009). 5 See huips:/iswew.annesty.ora.aus-burms. Amnesty International, Amnesty International Report 2017/18 - ‘Myanmar, 22 February 2018, available at: http:/www.refworld.org/docid/5a9938a8a.html [accessed 15 March 2018)Bangladesh. The UNHCR has declared an emergency in relation to the violence they experienced in Myanmar, and the resultant displacement of the Rohingya.” 26. Extensive and credible reports exist of extra-judicial killings, disappearances, violence, (including sexual violence), unlawful detention, and burning of property (including entire villages, mainly in Rakhine state), which have targeted the Rohingya.* The manner in which the villages, home and property of the Rohingya across northern Rakhine State has been destroyed points to it being well-organised and coordinated by the Myanmar Government, 21. Credible information indicates that the Myanmar security forces purposely destroyed the property of the Rohingyas, burnt their dwellings and entire villages in northern Rakhine State, not only to drive the population out in droves but also to prevent the fleeing Rohingya victims from returning to their homes.” 28, Numerous eye witness accounts identify men in Myanmar military uniforms attacking villages, burning homes, and stabbing, shooting, or raping their inhabitants. These accounts are fortified by video and satellite evidence and the accounts of Bangladesh Border Guards observing masses of Rohingya fleeing, gunfire, and burning villages from across the border."” 29. On23 November 2017 Myanmar and Bangladesh signed a deal to repatriate at least 700,000 Rohingya.'' By 15 March 2018, Myanmar had only approved the repatriation of 374 refugees. It is unclear if any have physically crossed the border back into Myanmar.” 30. Given her respective roles as Minister and State Councillor, at all material times Ms Kyi ‘must have had the requisite knowledge of the acts of the Myanmar Security Forces during the Rohingya Crisis. ‘Ms Kyi’s Involvement in the Rohingya Crisis 31 In mid-2016, Ms Kyi convened the Rakhine Commission, led by former UN chief Kofi Annan,"* to conduct a one-year investigation into the events in Rakhine state. The ‘Commission reported in August 2017 and made a number of recommendations." Amnesty International, Ammesty International Report 2017/18 - Myanmar, 22 February 2018, available at bhup: wiv refivorld.ong docid’Sa938a8ahim! [accessed 15 March 2018] 7 See huip:/www.ohehr.org EN HR Bodies: HRC Pages NewsDetail aspx? Newsl1)=227944eLangIDE, hup: wos oichr ong EN’ News vents: Pages Display News.aspy?NewsID=22806 ok up: now unr on en-au ohne) a-emergeney hun See hips: idacuments-dds-ny.un.ory doc NDOC/GEN/G17:358/08 PDI/G173S808,pd°OpenElements ups: ew. hesorg/world-report 2018 country-chaplers/burma and hips:/;ww.amnesty.org.au"?s-buron including Amnesty International, Amnesty International Report 2017/18 - Myanmar, 22 February 2018, available at: http://www refworld.org/docid/5a9938a8a html [accessed 15 March 2018} ° Mission report of OHCHR rapid response mission to Cox’s Bazar, Bangladesh, 13-24 September 2017”, OHCHR, October 2017 " Refugees Intemational, Bearing Wines fo Crimes against Human: The Forced Expulsion of he Rohn ‘fem Myonmar, October 2017, avalabe at hugs seve ® and noting that this Commission finalized its Report prior to the current crisis. '* http:/www.rakhinecommission.org/app/uploads/2017/08/FinalReport_Eng.pdt32. Lam not aware of any evidence that Ms Kyi has implemented any of the recommendations of the Commission’s Final Report. Further, the situation in Rakhine state has deteriorated since then and the expulsions are continuing, 33. The international community has provided Ms Kyi with significant amounts of credible evidence and information regarding the events in Rakhine State. Further, Ms Kyi has discussed these events with UN Commissioner for Human Rights, Zeid Ra'ad Al Hussein. As such, even if Ms Kyi was not originally made aware of the events in Rakhine State she obtained the requisite knowledge. But, despite this knowledge, Ms Kyi has not attempted to prevent further deportations or forcibly transfers of the Rohingya people. 34. Given Ms Kyi’s position in Myanmar and her knowledge of the relevant events, by failing to take steps to protect the Rohingya or to condemn the actions of the Myanmar Security Forces, Ms Kyi is complicit in allowing them to continue with impunity.’* 35. Since mid-August 2017, Ms Kyi has made numerous statements either denying or downplaying the seriousness of the events in Rakhine State: a, In October 2017, in an interview with the BBC Ms Kyi blamed the continued Violence on a "climate of fear", and denied that Muslims had been subjected to ethnic cleansing.'° Ms Kyi further said: "Muslims have been targeted but Buddhists have she said, "This fear is what is leading to all this also been subjected to violence," trouble" b. Ms Kyi denied that ethnic cleansing is taking place and dismissed credible claims of sexual violence against Rohingya women as “fake rape.”'” 36. Further, on 22 December 2017, the day after a Rohingya gentleman (Shuna) spoke out to journalists regarding the crisis and was found beheaded, a representative of the State Counsellor, one of the positions held by Ms Kyi. posted on the State Counsellors official Facebook page a photo of a headless body, stamped with the words “Truth teller BEHEADED.” The post claimed Shuna had told the media that security forces had not committed rape or arson, and suggested he was killed by “Muslim insurgents” in retaliatio ‘That directly contradicted local reports, activists and Shuna’s family."* 37. Onthe same day, the same Facebook account posted photos of Rohingya women who said they had been raped by security forces, with the label “FAKE RAPE”."” 38. Claims by Myanmar legitimate counter-insurgency and counterterrorism operation” have been discredited by reputable sources, including the United Nations. itary leaders that the events since August 2017 are part of a 'S Seo, for example the attached BBC Report. '6 hutp://www.bbe.com/news'world-as 12824778 1 bups:A0ww.aljazeera.con ' ps: www thepuardian com ommentisfee2017/de2aung-sa-sufee-pres-ake-news-ohingya bttpsi//www.facebook.com/state.counsellos/photos/a.792613514206200.1073741827.792607210873497/943698 079097742/?type=34theater * www statecounsellor.gov.mm/en/nodel796of population” Elements of the offence of “crime against humanity ~ deportation or forcible transfer 39, Section 268.11 of the Criminal Code states: a) @ @ A person (the perpetrator) commits an offence ift @ (b) © @ the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country or location; and the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant; and the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area; and the perpetrator's conduct is committed intentionally or knowingly as part of @ widespread or systematic attack directed against a civilian population, Penalty: Imprisonment for 17 years. Strict liability applies to paragraph (1)(b). In subsection (1): “forcibly displaces one or more persons” includes displaces one or more persons: @ ) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or by taking advantage of coercive environment. 40, ‘The ICC elements of this offence are: - Element 1 - the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country ot location (physical element); and - Element 2 - the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant (circumstance); and Element 3 - the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area (fault element); and = Element 4 - the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population (fault element). Element 1 - the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country or location. 41 The first element of section 268.11 can be broken into the following elements: 1, the perpetrator: forcibly displaces one or more persons by expulsion or other coercive acts, b, from an area in which the person or persons are lawfully present; and¢. to another country or location. Foreibly displaces one or more persons by expulsion or other coersive acts 42. Section 268.11 defines “forcibly displaces one or more persons” to include: (@) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against ‘another person; or (b) by taking advantage of a coercive environment 43. Other than the above, there is no Australian jurisprudence on this part of Element |. 44, The term “forcibly displaces,” however, reflects part of Element | of Article 7(1)(4) of the ICC elements of Crimes of the International Criminal Court”! (the ICC Elements of Crimes) that refers to “deported or forcibly transferred.” As such, itis useful to have regard to commentary relating to this part of Element | of Article 7(1)(d) of the [CC elements of Crimes. 45, ‘The ICC Elements of Crimes also provides that the term “forcibly” is “not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.” As such, the definition of “forcibly displaces one or more persons” in section 268.11 of the Criminal Code is clearly copied from the ICC Elements of Crimes. As detailed in paragraphs 26, 27, and 28 above, there is evidence that the Myanmar Government has engaged in duress and abuse of power against the Rohingya in Myanmar. Also detailed in these paragraphs is evidence of behaviour that would cause the Rohingya in Myanmar to have a fear of violence, and advantage been taken of a coercive environment, From an area in which the person or persons are lawfully present 46. As detailed in paragraph 23 above, Rohingya are indigenous to this region of Myanmar. ‘They are lawfully present in this region, and most Rohingya have access to some form of Jand ownership. To another country or location 47. As of the date of this Request, over 655,000 Rohingya people have fled Myanmar, mainly to Bangladesh, and over 100,000 people are internally displaced in Myanmar.”* Element 2 - the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant 48. Article 12, paragraph 4 of the International Covenant on Civil and Political Rights (the Covenant) provides: No one shall be arbitrarily deprived of the right to enter his own country. 2" 4s established under the Rome Statute af the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 90 (entered into force | July 2002) att 7(1). ® Article 7(1)(@), footnotes 12 and 13, /CC Elements of Crimes. ® Ammesty International, Amnesty International Report 2017/18 - Myanmar, 22 February 2018, available at: hu: efi 3 ul [accessed 15 March 2018]49. Article 13 of the Covenant provides: {An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. 50. The spirit and purpose of this element, and the relevant Articles of the Covenant is that people lawfully within their habitual country of residence (and birth) cannot be expelled and prevented from returning, Paragraph 4 Article 12 Covenant st As detailed in paragraph 24 above, the Rohingya have effectively been rendered stateless. Asa result, forcibly displaced Rohingya currently outside Myanmar are unable to provide proof of their right to return to Myanmar. 92. As detailed in paragraph 29 above, there is no evidence that people who have fled Myanmar have been able to re-enter Myanmar. Article 13 Covenant 53, Even if it were to be accepted that the Rohingya are aliens in Myanmar for the purposes of Article 13 of the Covenant,” they have not been expelled from Myanmar according to law. There is no evidence of “a decision reached in accordance with law.” Further, there is no credible evidence that the Rohingya people, the subject ofthe forcible expulsion, whether en ‘masse or otherwise, pose a threat to the national security of Myanmar Strict liability 54, Section 268.11 provides that strict liability applies to Element 2. As a result, providing that the physical element of inability to re-enter Myanmar (Paragraph 4 of Article 12 of the Covenant) and / or the expulsion of aliens (Article 13 of the Covenant) have occurred, then this element is proven, Element 3 - the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area 55. The third element of section 268.11 can be broken into the following two elements: a, factual circumstances that establish the lawfulness of the presence of the person or persons in the area; and that the perpetrator either knows of, or is reckless as to that circumstance. 56. As detailed in paragraph 23 above, the Rohingya are lawfully present in this region. By her position in the Government (and evidenced by her commissioning of the Commission) Ms Kyi knows of the lawfulness of their presence or is reckless as to the factual circurnstances that establish that lawfulness. Element 4 - the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population. 57. The fourth element of section 268.11 can be broken into the following elements: ™ For clarify sake, itis nor accepted by the authors of the Request that the Rohingya are aliens in M;a, the perpetrator's conduct is committed (a) intentionally or (b) knowingly; 'b. the conduct is part of a widespread or systematic attack: and ¢. the attack is directed against a civilian population, The perpetrator's conduct is committed knowingly 58. There is no Australian jurisprudence on this part of Element 4. 59, Asset out in paragraphs 31 - 33 above, Ms Kyi knew that the conduct was part of widespread and systematic attack directed against a civilian population. This evidence clearly indicates that the conduct breaches international law. jontinued and continues to permit deportation or 60. Notwithstanding this evidence, Ms Kyi forcible transfer of the Rohingya people. Widespread or systematic 61 There is no Australian jurisprudence on this part of Element 4. 62. The term “widespread or systematic” however, mirrors parts of Elements 4 and 5 of Article 7(1)(d) of the ICC Elements of Crimes and the preconditions specified in Article 7(1) of the ICC Elements of Crimes. 63. This concept is an indispensable element of a crime against humanity, included in the Rome Statute to reflect the widely-aftirmed findings in a number of earlier judgments that® *...it is a prerequisite that the act must be committed as part of a widespread or systematic attack and not just a random act of violence.””* 64. Neither the attack nor the acts of Ms Kyi need to be supported by any form of “policy” or “plan,” although the existence of a policy or plan is useful in establishing that the attack was z directed against a civilian population and that it was widespread or systematic.”” Such a plan or policy can be inferred from other evidence. Widespread 65, “Widespread” refers to the large-scale nature of the attack and the number of victims.”* As noted in paragraphs 26 and 27 above, the area of the Northern Rakhine state (total area 36,778 km2) has been targeted, with credible evidence that entire villages have been destroyed. Over 655,000 people have left Myanmar, with credible evidence that large numbers of people have been killed, tortured, detained, or subjected to sexual violence. 66. Further, it is only the attack on the community as a whole, and not the individual acts of the accused that must be widespread (or systematic). In addition, the acts of the accused need only be a part of the attack. A single or relatively limited number of acts suffice, unless those acts are isolated or random.” 2 she Prosecutor v. Jean-Paul Akayesu, Case no. ICTR-96-4-T, 2 September 1998 (the “Akayesu Judgment [563}-{584]; the Prosecutor v. Clément Kayishema and Obed Ruzindana, Case no, ICTR-95-1-T, 21 May 1999 the “Kayishema-Ruzindana Judgment”), (119]-(134], 2 See the Akayesu Judgment at [579]; affirmed in Kay © Kunarac, 98). % Kunarac, (93). ” Kunarac, [96]. jema-Rt jana Judgment at [123],Systematic 67. The ICTY considered this concept and outlined the characteristics of circumstances that might be considered systematic (citing the Rome Statute and the Statute of the International Tribunal for Rwanda):"! a consciously pursued policy or plan; the repeated and continuous commission of inhumane acts linked to one another;* the preparation and use of significant public or private resources, whether military or other;*' and the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.* 68. The Akayesu Judgment considered and affirmed this concept, finding that “[slystematic may be defined as thoroughly organized and following a regular pattern on the basis of a ‘common policy involving substantial public or private resources... There must be some kind of preconceived plan or policy.”** 69. Asset out in paragraphs 26 and 27 above, there is evidence of the existence of a policy of the State involving public resources to forcibly displace the Rohingya population, Eyewitnesses describe Myanmar security forces and men in Myanmar military uniforms committing inhuman acts, fortified by video and satellite evidence and the accounts of Bangladesh Border Guards observing fleeing masses, gunfire, and burning villages from across the border. The manner in which the villages, home and property of the Rohingya across northern Rakhine State has been destroyed points to it being well-organised and coordinated. These inhuman acts were, and continue to be, linked to one another on the basis that they were, and continue to be, organised, funded, facilitated, and/or permitted by the State. Attack directed against a civilian population 70. There is no Australian jurisprudence on this part of Element 4. 71. The term “attack directed against a civilian population” reflects the precondition of “Attack directed against any civilian population” specified in Article 7(2) of the Rome Statute, and exactly tracks the wording of Elements 4 and 5 of Article 7(1)(4) of the ICC Elements of Crimes. Prosecutor v Tihomir Blaskié, case no (T-95-14-T (3 March 2000) [202]. © Statute ofthe International Criminal Tribunal for Rwanda, U.N. Doc. S/Res/955 (1994) (entered into force 8 November 1994), as last amended by Security Council Resolution 171 (2006) of 13 October 2006. © See the Tadié Judgment at [648], and the ICTR, in the Akayesu (at [580}) and Kayishema-Ruzindana Judgments (at [123]). Each refer to the plan or policy in order to define the element of ("systematically"). See also the case of the Prosecutor v. Menten 75 ILR 1987 pp 362-363 where the Dutch Supreme Court evoked the condition of “systematicity” in reference particularly to a policy consciously directed against a group of persons: “The concept of crimes against humanity also requires ~ although this is not expressed in so many words in the [...] definition ~ thatthe crimes in question form part of a system based on terror or constitute a Tink in a consciously pursued policy directed against particular groups of people” (emphasis added).. ® Prosecutor v Tikomir Blaskié, case no (T-95-14-T (3 March 2000) [202]. > Wid 2 Prosecutor v Tihomir Blaskié, case no 1T-95-14-T (3 March 2000) [203] °° The Akayesu Judgment at [580]n 3, 74, 75. 16. 77. 78 79. 80. Article 7(2) of the Rome Statute’” provides: For the purpose of paragraph 1: (a) Attack directed against any civilian population” means a course of conduct involving the ‘multiple commission of acts referred to in paragraph | against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. Article 7, Introduction, (3) of the ICC Elements of Crimes repeats the wording of Article 7(2) of the Rome Statute and provides the following further guidance: ‘The acts need not constitute a military attack. It is understood that “policy to commit such attack” requires that the State or organisation actively promote or encourage such an attack against a civilian population, Article 7, Introduction, (3) of the ICC Elements of Crimes also includes the following, footnote: [A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. ‘The existence of such a policy cannot be inferred solely from the absence of governmental or ‘organizational action, Accordingly, this sub-element is satisfied if it is proven that there is a course of conduct involving multiple acts of deportation against any civilian population, linked to the “widespread or systematic” elements, A course of conduct involving the multiple commission of prohibited acts of deportation or forcible transfer of population is addressed above under Element I. It has also been set out in the “widespread or systematic” element above that the “course of conduct” was committed pursuant to a State policy. This leaves only that the “course of conduct” was committed against a civilian population. Neither the Rome Statute nor the ICC Elements of Crimes defines “civilian population.” It is generally accepted in international humanitarian law and international criminal law, however, that a population is classified as comprising two broad groups: combatants and civilians.” Article 50 of Additional Protocol to the Geneva Convention, defines ‘civilians’ in the negative: those who are not combatants.” ‘The Rohingya, are clearly civilians. They lack any military organisation, weapons, uniforms, hierarchy or any other military style trappings. Further, case law indicates that the term ‘civilian population’ must be broadly defined. ‘According to the ICTY, ‘civilian population does not mean that the entire population of a given State or Territory must be victimised ... in order for the acts to constitute a crime » Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 90 (entered into force I July 2002) art 702). International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Vietims of Non-International Armed Conflieis Protocol I), 8 June 1977, 1125 UNTS 609, art 50, » International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol 1), 8 June 1977, 1125 UNTS 608, art 5.against humanity’.° See in particular the decision on the confirmation of charges in the case of Laurent Gbagbo.“' As the ICTY in Prosecutor v Kunarae found”: Its sufficient to show that enough individuals were targeted in the course ofthe atack, or that they were targeted in such 2 way as to satisfy the Chamber thatthe attack was in fact directed against a civilian ‘population’ rather than a limited and randomly selected number of individuals 81. [tis clear that a civilian population is being targeted, namely, Rohingya resi Myanmar. ing in Perpetrator ~ Individual responsibility 82, Section 268.115 of the Criminal Code deals with the responsil other superiors for crimes against humanity. It provides: ity of commanders and (1) The criminal responsibility imposed by this section is in addition to other grounds of criminal responsibility under the law in force in Australia for acts or omissions that are offences under this Division. (2) A military commander or person effectively acting as a military commander is criminally responsible for offences under this Division committed by forces under his or her effective command and control, or effective authority and control, as the case may be, as a result of his or her failure to exercise control properly over those forces, where: (a) the military commander or person either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about t0 commit such offences; and (b) the military commander or person failed to take all necessary and reasonable ‘measures within his or her power to prevent or repress their commission ot to submit the matter to the competent authorities for investigation and prosecution, (3) With respect to superior and subordinate relationships not described in subsection (2), superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure (0 exercise control properly over those subordinates, where: (@) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and (b) the offences concemed activities that were within the effective responsibility and control ofthe superior; and (©) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter t0 the competent authorities for investigation and prosecution, * Prosecutor v Dusko Tadié, case no 1T-94-1-T (7 May 1997) [644] +" http://www icc-epi.intlicedocs/docidoc!783399.pdf for the concept ‘civilian population’ and the other components of element 4). ® Prosecutor v Kunarae, case nos 17-96-23 and 1T-96-23/1-A (12 June 2002) (90)83, 84. 85, 86. 87. 88. 89. 90. Section 268.115(3) of the Criminal Code is relevant to the present situation. While “superior” is not specifically defined in the Criminal Code, section 268.115 provides the circumstances in which a person is criminally responsible for the offences committed by subordinates, being where the subordinate is under the effective authority and control of the superior. As detailed in paragraphs 19 - 22 above, Ms Kyi is the leader of the NLD, holding, significant control and power over the affairs, activities and budget of the State. She is also the incumbent: (a) State Counsellor; (b) Minister of Foreign Aflaits; and (c) Minister of the President's Office. Ms Kyi's position as Minister of Foreign Affairs gives her a seat on the National Defence and Security Council. Under the Constitution, she is effectively in a power sharing arrangement with the Burmese military. We submit that there is evidence of a de ‘facto relationship of a superior having effective authority and control over her subordinates, Section 268.115(3) goes on to provide for the level of knowledge and responsibility required to found criminal liability. The requirements under section 268.115(3) of the Criminal Code are cumulative — ie all are required to be met. Section 268.115(3)(a) of the Criminal Code requires that the superior knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit offences. As detailed in under Element Four above, Ms Kyi knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit offences. Section 268.115(3)(b) of the Criminal Code requires that the offences concerned activities that were within the effective responsibility and control of the superior. For the same reasons as those detailed in paragraph 84 above, we submit that the activities constituting a crime against humanity fall within her effective responsibility and control. Finally, section 268.115(3)(c) of the Criminal Code provides that the superior failed to take all necessary and reasonable measures within their power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. As detailed in paragraphs 31 - 33 above, Ms Kyi has not taken any necessary or reasonable measures to prevent or repress the commission of the offence of deportation or forcible transfer of population. Further, Ms Kyi does not appear to have submitted this matter to a competent authority for investigation or prosecution. Her public statements ing the actions of the government troops would explain why she has not done so. in jurisprudence in relation to section 268.115 of the Criminal Code. As such, as detailed below, the jurisprudence of international and hybrid criminal courts is useful to inform the meaning of section 268.115 of the Criminal Code. ‘The Appeals Chamber of the Intemational Criminal Tribunal for the former Yugoslavia (the ICTY) outlined in Prosecutor v, Zejnil Delalié et al. at (342]:° ‘The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing Noting that Delalic was the first conviction based on superior responsibility before an international tribunal since the World War II era cases.1 92. 93. 94, 95. 96. “participation” in a general system or operation pursuant to which civilians are confined. In the Appeals Chamber's view, the fact alone of a role in some capacity, however junior, in ‘maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime, Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, stich as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any ‘such reasons have ceased to exist. [..]"* The concept of “effective authority and control” under section 268.115 of the Criminal Code reflects international jurisprudence relating to “effective command and control.” The hallmark of this relationship is effective command and control rather than formal designations.’ Further, subordination may be de facto rather than de jure ~ a matter of factual practice, rather than formal designation. As outlined in paragraphs 19 - 22 and summarised in paragraph 84 above, given the arrangement between Ms Kyi’s posi the Myanmar military, there is evidence of a de facto relationship of subordination. and Further, the level of control by @ civilian superior does not have to be of the same nature as that exercised by a military commander."® Ms Kyi also has and had the power to prevent civilians from being deportation or forcibly transferred and failed (or fails, as the case may be) to do so, where there are or were no reasonable grounds for their deportation or transfer, such as that they are a risk to the security of the State."” Overall, on the basis of the factual outline provided above, it is submitted that there is sufficient evidence of Ms Kyi having knowledge of the relevant facts outlined in the ICC Elements detailed below, and played a considerable role in the implementation and enforcement of the acts resulting in the crime against humanity. Further, Ms Kyi has, and had, the requisite intent to cause a particular consequence or was aware that the consequence would occur in the ordinary course of events. am aware that the Commonwealth DPP considers both whether there is a real prospect of conviction and whether the prosecution is in a public interest in determining whether to bring a prosecution. I believe both criteria are met in this case by reason of the matters set ut in this request and in meeting Australia’s obligations under the Rome Statute. This request has been prepared after receiving advice from counsel, including senior counsel, engaged by me in this matter. I and/or my counsel are prepared to discuss any issues or concerns you might have in relation to this request, including providing any further information you might require before responding to this request. * prosecutor v. Zejnil Delalié et al., Case No. 1T-96-21-A, Judgement (AC), 20 February 2001 [342] * Cassesse, 436. * Prosecutor v Bagilishema, Case No. ICTR.95-1A-A, appeals Chamber Judgment, 3 July 2002, [55]. * Ibid (378).97. [would appreciate an opportunity to address any material or matters that you may regard as adverse to this request before you make a decision. Dated this 16" day of March 2018 Daniel Robert Taylor Mz 0431 069 444 E: d_taylor@y7mail.com