Where to find justice? Finding Asian courts to prosecute atrocities
CHUKA ARINZE-ONYIA AND EMMA PALMER |
Survivors of violence in Myanmar have pursued multiple pathways toward justice. Some have supported cases in the Hague. One, before the International Court of Justice, argues that Myanmar as a state bears responsibility for genocide. Another, at the International Criminal Court, seeks to find individuals criminally accountable, but is limited to crimes committed partly in Bangladesh. Those cases have limited scope, so survivors have turned to other settings – including domestic courts.
Cases have now been filed in countries as diverse as Türkiye, Argentina (where arrest warrants have been issued), Germany, and the Philippines. Most recently, the Myanmar Accountability Project (MAP) and Chin Human Rights Organization filed a case in Timor-Leste, while Rohingya advocate Yasmin Ullah worked with MAP, former UN investigator and Attorney-General of Indonesia, Marzuki Darusman, and others to file another case under Indonesia’s new Criminal Code.
Why these countries? Why now?
When a file was submitted to authorities in Timor-Leste alleging that Myanmar leaders committed international crimes following the 2021 coup, one immediate question was: why Timor-Leste. It is not a major power and had also recently joined ASEAN, a regional organisation shaped by a norm of non-interference. Why, then, was this small state selected as a forum for a universal jurisdiction case? This question of how forums are chosen was central to discussions among civil society leaders, legal practitioners and academics at a recent two-day workshop in Brisbane.
The answer that emerged was that forum selection involves a judgement call, which survivors’ groups and civil society – and their lawyers – make while balancing a range of legal, political, and strategic factors.
The first set of filters is legal. Domestic courts must have a legal basis to prosecute crimes like genocide, crimes against humanity, or war crimes. These might be found in criminal “Codes” or legislation, or through the incorporation of customary international law and treaty obligations. States that ratify international treaties like the Rome Statute of the International Criminal Court are especially likely to have relevant offences – and sometimes explicitly allow for extra-territorial or “universal” jurisdiction, allowing them to prosecute crimes that occurred outside the state’s territory, involving no nationals. Even where such jurisdiction is recognised, countries vary in how it operates. Diplomatic immunities may operate, or requirements that a suspect be present before proceedings can begin. Indonesia, the Philippines, and Timor-Leste all appear to have frameworks that could support universal jurisdiction cases, though within procedural requirements.
A second range of factors is practical. Do institutions have capacity to investigate foreign crimes and manage large volumes of complex evidence? Some countries have established permanent specialised investigation units or “structural investigations” focused on documenting entire conflict scenarios, such as violence in Syria.
Other factors include the location of witnesses, including diaspora communities; language and cultural barriers; and the ability to cooperate with other countries or mechanisms. Some countries have restrictions on cooperating with proceedings that could attract the death penalty (like Indonesia). Concerns about witness protection and security are also significant. Some of these challenges are mitigated by the work of bodies such as the Independent Investigative Mechanism for Myanmar, which is collecting and preserving evidence for proceedings, alongside regional efforts to strengthen cooperation and new investigative guidelines in some jurisdictions.
Third, politics matters. Many systems require official approval, such as Attorney-General consent, before investigations or prosecutions can begin. Even if not, officials may be reluctant to pursue difficult, distant cases if these are not encouraged by political actors.
Recent filings in Indonesia, the Philippines and Timor-Leste have therefore been framed in ways that resonate with domestic interests. For instance, press releases about the Chin Human Rights Organization filings in the Philippines and Timor-Leste emphasised that pastors and Christians were targeted in “a deliberate, systematic, widespread, disproportionate and indiscriminate campaign of violence against civilians”. Rohingya-focused cases in Indonesia urged authorities to take action to protect a “defenceless Muslim population”. Public messaging also linked these efforts to broader regional, ASEAN, concerns, including stability and transnational crime and suggested that Myanmar should not interfere with neighbouring states’ legal processes.
There is an irony here: cases grounded in “universal” norms are advanced through localised arguments. These efforts are challenging, particularly where political leaders themselves or their families face allegations of international crimes, past or recent. Still, a history of human rights violations does not necessarily disqualify a jurisdiction. In fact, it can mean that experienced lawyers and institutions can be found who are familiar with navigating complex cases and due process challenges.
Even where legal, policy and practical capacity, and political conditions appear favourable – cases do not proceed. But is a conviction the only helpful outcome?
For some survivors and civil society organisations, not necessarily. While some seek criminal accountability, others pursue broader aims. Filing a case can (re)generate media attention. It can open access for persuading political leaders (even, a meeting with a President) to maintain pressure on perpetrators, bring new actors – prosecutors, lawyers, or activists – into conversation, and strengthen networks. Perhaps most importantly, it could make perpetrators a little less sure of their impunity.
There are risks. Filings or cases may raise expectations that cannot be met, exposing survivors to traumatisation or security threats. Domestic courts may struggle with language barriers and complexities and have limited options for victim access or outreach, participation, or reparations. Investigations and cases can stall or fail to progress. Even where cases proceed, as in international crimes proceedings, timeframes can be long and outcomes uncertain.
Unsuccessful cases could also have wider effects. Decisions in Australia and Indonesia arguably produced narrow interpretations of the legal scope for such cases, by restricting private prosecutions, and advancing a conservative legal interpretation in the latter. Such outcomes could reflect issues with timing or case selection, but any assessment should consider the goals being pursued.
As one workshop participant put it, the ‘point is not to win in the courtroom but to ensure that the public become aware of what has happened and to make the powers uncomfortable’.
Selecting the “right” forum is not just a legal or political consideration, though both are crucial. It also depends on the aims of victims/survivors and civil society. As more cases emerge across the Asia-Pacific, the challenge for regional officials is to ensure that legal systems are equipped to respond, so it is ‘the powers’ who are uncomfortable, and not their offices.
Chuka Arinze-Onyia and Associate Professor Emma Palmer are members of the Griffith Asia Institute.
This research was supported by Australian Research Council Discovery Early Career Award (project number DE250100597). The views expressed herein are those of the authors.