Prosecuting Asia-Pacific international crimes in domestic courts
EMMA PALMER AND JEN KEENE-McCANN |
Legal accountability for conduct amounting to crimes against humanity, genocide, or war crimes (“international crimes”) remains rare. International and regional courts are often inaccessible or have limited capacity, while domestic prosecutions face significant legal, practical, and political barriers.
Often, for those victims or survivors who seek prosecutions, domestic courts in other countries offer one of very few available pathways. For international crimes, courts may be able to rely on extraterritorial forms of jurisdiction like “universal” jurisdiction, which allows courts to prosecute crimes even when they happened outside the country and did not involve nationals of the prosecuting state. The use of these broader types of jurisdiction to prosecute international crimes has expanded in parts of Europe and the Americas. Now, a small but growing number of initiatives seek to pursue international crimes within or concerning the Asia-Pacific.
Griffith Law School and Griffith Asia Institute, in partnership with the Asia Justice Coalition and The Baltasar Garzón International Foundation (FIBGAR), convened civil society actors, practitioners, and leading and emerging scholars to examine these developments. The 2-day closed-door workshop brought practical and academic perspectives into dialogue to assess current barriers, critiques, and opportunities for extra-territorial and universal jurisdiction prosecution in the region. The discussion was informed by experiences and lessons from more than twelve contexts or jurisdictions, including regionally Sri Lanka, Nepal, Indonesia, Australia, Cambodia, Timor-Leste, and the Philippines.
The program mixed both practical experience and academic consideration. Beyond presenting their work, time was allocated for participants to discuss reflection questions central to the workshop’s themes and outcomes. These discussions will also inform FIBGAR’s updating of the 2015 Madrid-Buenos Aires Principles on Universal Jurisdiction – a practitioner-oriented set of guidelines for global universal jurisdiction practice.
Keynote speeches were delivered by Kaoru Okuizumi of the United Nations Independent Investigative Mechanism for Myanmar (IIMM) and Antonia Mulvey, Executive Director and Founder of Legal Action Worldwide (LAW).
Kaoru explored the array of the IIMM’s work in collecting, analysing, and sharing information that may be used as evidence regarding international crimes related to Myanmar. The IIMM takes a “modular” approach, including prioritising investigations regarding sexual and gender-based crimes, crimes against children, and financial crimes. In doing this work, IIMM faces many challenges, including managing the volume of information collected, legal frameworks to support evidence sharing, witness protection across multiple jurisdictions, mitigation of secondary trauma for staff, staff access to particular states, and resourcing limits.
Setting the scene for many of the discussions that followed, Kaoru stressed that prosecution of international crimes can be complementary to other efforts for accountability. For example, the IIMM’s information and analysis has been shared for use in proceedings in the International Criminal Court and for criminal prosecution under universal jurisdiction in Argentina, but has also been shared with the International Court of Justice (examining State responsibility for genocide) and with the United Kingdom for a “structural investigation”. She also stressed the role of civil society in collecting information and pursuing multiple avenues for accountability, a theme that was carried through other workshop discussions.
Antonia’s keynote (available here) noted that LAW works directly with victim and survivor communities from Myanmar, including by supporting a Rohingya victims’ delegation to give evidence in The Hague before the International Court of Justice. Antonia recalled her experience on the Myanmar/Bangladesh border as thousands crossed into Bangladesh during attacks against the Rohingya community in 2017. The experience of listening to accounts of horrendous crimes and experiences deeply affected Antonia, as some asked: “will you get me justice?”.
This question raised themes addressed in later workshop discussions on whether “justice” is confined to criminal prosecutions, extends to other uses of the law and the courts, or more broadly incorporates reparative, non-legal efforts. In addition to compiling and filing criminal complaints for prosecution, this also included LAW’s broader engagement with survivors of international crimes, recently including surveying survivors about their priorities, which are often not immediately for criminal forms of justice but may include other reparative steps.
Discussions throughout the two days considered the nuances of “justice” for different individuals and communities, which also changes over time, and the heavy burden placed upon victims and smaller civil society organisations to give and collect evidence.
Participants noted that characterising experiences as “international crimes” shape which forums respond to violence and what may come out of that characterisation; international and domestic trials differ in significant ways, including the opportunities they create to produce judgments and procedural features including jury involvement or closed proceedings. They also may differ in the ability to facilitate expressive forms of justice. This was also raised in discussions of the relevance of: prosecuting transnational crimes (such as money laundering) and civil suits to address international crimes; considering actors outside of “direct perpetrators”; and symbolic truth-telling such as people’s tribunals.
In this discussion about different sites of justice, the group identified opportunities for greater cross-Asia-Pacific cooperation among a range of actors (as advanced by PacificJUST and Asia Justice Coalition), including to: incorporate and address the range of victims’ preferences, clarify investigative processes, support witness protection, and more broadly compare strategic approaches to accountability.
Across the two days, participants discussed how criminal cases sit among a constellation of approaches that may, together, generate unexpected positive outcomes. However, the workshop highlighted that any of these outcomes require ongoing creativity and collaboration.
Associate Professor Emma Palmer is a member of the Griffith Asia Institute and Jen Keene-McCann is an Associate Lecturer at Deakin Law School.
Associate Professor Palmer is the recipient of an Australian Research Council Australian Discovery Early Career Award (project number DE250100597) funded by the Australian Government. This workshop was supported by those project funds along with funding from Griffith Asia Institute and FIBGAR.