Symposium on Myanmar and International Indifference: Rethinking Accountability – Centering Accountability in Asia: Universal Jurisdiction, Grave Breaches, and Cautious Optimism

[Jennifer Keene-McCann is a Senior Legal Fellow at the Asia Justice Coalition and is based in Naarm/Melbourne, Australia. Aakash Chandran is a Fellow at the Asia Justice Coalition and is based in New Delhi, India.]

This third Opinio Juris symposium relating to crimes against the Rohingya marks another difficult anniversary. Its theme, ‘Myanmar and International Indifference: Rethinking Accountability’, evokes a call to keep approaches to international justice fresh, creative, and most importantly relevant to the needs of survivors. This includes continually searching and testing new avenues for justice.

Over the past year, an Asia Justice Coalition (AJC) secretariat project has brought together more than 35 civil society representatives, legal practitioners, and academics to consider the barriers to and opportunities to one ‘avenue for international justice’: bringing universal criminal jurisdiction prosecutions. Participants in our most recent convening spoke frankly about the lack of prioritization for international criminal justice and the need for political will to permit domestic prosecutions of international crimes within our respective Asian domestic jurisdictions.

Still, just because international criminal justice has previously been de-prioritized in the region doesn’t mean this will always be the case. Where justifications regarding sovereignty and non-interference have previously been considered hurdles throughout Asia, States are bearing the cost of prolonging impunity for illegitimate regimes like that in Myanmar. The longer this continues, the greater the potential that this could ‘change the “non-interference calculus”…because not acting to address impunity is itself “interfering” with a State’s own domestic priorities’.

Assuming there will come a time that States in the region will permit domestic prosecutions, it is useful to consider relevant fora in which to bring universal jurisdiction cases. ‘Relevancy’, as we discuss in a forthcoming book chapter, may depend on several variables: the presence of the accused or survivors within the jurisdiction, the jurisdiction’s resources and experience in handling such cases, and, as noted above, political will. Central to choosing a forum, however, is the existence of an enabling legal framework.

For a universal jurisdiction case, international crimes are required to be incorporated into domestic law, and domestic criminal procedure is amended—if necessary—to be able to prosecute these crimes. In other regions, domestication of international crimes likely occurs at the same time or shortly after ratification of the Rome Statute thanks to Parties upholding their end of the bargain regarding complementarity. However, Asia still lags behind in Rome Statute ratification (and notably in Genocide Convention ratification), and therefore we, as a region, are also ‘behind’ in incorporating war crimes, crimes against humanity, and genocide into our domestic criminal codes.

Limits Regarding Grave Breaches

Instead, where international crimes have not been incorporated, it may be more likely to find criminalization of grave breaches of the 1949 Geneva Conventions in domestic law. ‘Breaches’ aren’t themselves ‘crimes’. Instead, the Conventions create treaty obligations on all States to criminalize in domestic law the acts committed against protected persons or property mentioned in arts 50, 51, 130, and 147 (extended by 1977 Additional Protocol I art 85). States are also obligated to investigate and prosecute or hand over suspected/accused within their territory. Interestingly, in some ways, the grave breaches regime fits well with the norms of ‘sovereignty’ and ‘non-intervention’—the Conventions did not provide for international criminal responsibility and left it to State Parties to criminalise grave breaches domestically.

While the domestication of grave breaches helps in part to create an enabling legal framework for universal criminal jurisdiction, it presents a problem for prosecuting crimes against the Rohingya. This is because ‘grave breaches’ traditionally refer to violations of the Geneva Conventions that occur only in international armed conflict (IAC)—as opposed to ‘war crimes’ which occur in international and non-international armed conflict (NIAC). In addition to domestication of genocide and crimes against humanity, justice for the Rohingya requires the ability to hear cases involving non-international armed conflict and thus ‘war crimes’ rather than ‘grave breaches’.

This hurdle presents itself in three forum States that would be relevant otherwise in seeking international justice for crimes against the Rohingya. Singapore is currently Myanmar’s biggest investor and many assets held by members of the junta can be linked to Singaporean financial institutions. While there are few, if any, Rohingya survivors residents, Singapore also remains a likely destination for voluntary travel of potential accused. Singapore has domestically criminalized grave breaches (art 3(1)) and genocide (s 130D), but not NIAC war crimes.  Separately, Malaysia—which has been taking a more active stance against the Myanmar military junta—has criminalized grave breaches and made them applicable (art 3(1)) to ‘any person, whatever [their] including breaches ‘committed outside Malaysia’. It does not, however, criminalize NIAC war crimes (or indeed genocide despite being a Party to the Genocide Convention). Finally, a State with a significant Rohingya population, India will permit domestic prosecution and punishment of ‘any person within or without India [who] commits or attempts to commit or abets or procures the commission by any other person of, grave breach of any of the Conventions’ (art 3) but has no mention of NIAC war crimes.

Cautious Optimism in Overcoming Grave Breaches Limits

Thinking strategically, the criminalization of only grave breaches may not always remain a limit to bringing further universal jurisdiction cases in our region. This is for two reasons: the potential to utilize customary international law domestically and the potential signature—and obligations under—the draft Mutual Legal Assistance treaty.

Use of Customary International Law in Domestic Cases

First, the development of customary international law and the prevalence of non-international armed conflict raises the question whether the distinction between IAC and NIAC has outlived its purpose—along with the distinction between ‘grave breaches’ and ‘war crimes’. In Nicaragua,  the International Court of Justice noted that Common Article 3—applying to both international and non-international armed conflict—constitutes the ‘minimum yardstick’ in all types of armed conflict (at 218).

Further, in Tadić, the International Criminal Tribunal for the Former Yugoslavia stated the development of customary international law covering non-international armed conflict war crimes ‘cannot be denied’ (at 127). If these distinctions are no longer relevant and customary international law applies, then an examination of enabling legal frameworks turns from examining grave breaches to how the forum State applies customary international law domestically—and whether there is appetite and existing precedent to use this for the prosecution of non-international armed conflict war crimes. Notably, there has been at least some domestic judicial recognition of customary international law regarding grave breaches applicability to NIAC. Further, any relevance of customary international law in domestic forum States without Rome Statute ratification may also assist in bringing crimes against humanity matters.

The domestic relevance of customary international law may be part of the reasoning in the recent filing of a case before the Singaporean courts against former Sri Lankan President Gotabaya Rajapaksa. The International Truth and Justice Project’s press release about their filing states ‘the 63-page complaint argues that Rajapaksa committed grave breaches of the Geneva Conventions during the [Sri Lankan] civil war in 2009’—notably a NIAC. It should be noted that Singapore’s apex court has recognized the relevance of customary international law—see here—but customary international law is still subject to a domestic legal source hierarchy. Nevertheless, the filing and its reasoning could provide important lessons for advocates filing matters related to the Rohingya.

Development of a Broader Mutual Legal Assistance Treaty

Second, the development of an international mutual legal assistance treaty regarding atrocity crimes may encourage States in our region that were reticent to ratify the Rome Statute to cooperate on their own terms. The State-led MLA Initiative’s draft mutual legal assistance treaty on atrocity crimes is intended to act ‘as a practical tool to enable States to both comply with their international obligations and empower their national judiciaries…’ by ‘facilitating better practical cooperation between States investigating and prosecuting [such] crimes’. These treaty crimes replicate the definitions of crimes in the Rome Statute (draft art 2)—thus, potentially expanding the relevance of Rome Statute crimes beyond Rome Statute Parties. As a part of facilitating cooperation, the treaty obliges States Parties to: ‘take the necessary measures’ to incorporate treaty crimes domestic law (draft art 4(1)); establish territorial, active, and passive personality jurisdiction over relevant crimes (draft art 5(1)); and establish universal jurisdiction over alleged offenders within their territory who are neither extradited or handed to an international tribunal (draft art 5(2)). The more regional States that sign on to the future treaty, the more fora may become available for domestic prosecution of crimes against the Rohingya.

Naturally, because the treaty creates obligations similar to the Rome Statute, one may question why a non-State Party to the Rome Statute may see it within its interest to oblige itself under a new treaty. However, the MLA Initiative has now garnered the support of 76 States including Mongolia, Samoa, and non-Rome Statute State Party Vietnam.

Further, the focus on domestic prosecutions of international crimes may be a useful hook for non-Rome Statute Asian jurisdictions. Participants in the AJC secretariat’s most recent convening noted that ‘international criminal justice mechanisms developed (and continue to operate) far away from the region [and t]his geographic distance lends itself to States making stronger rhetorical arguments regarding violations of sovereignty and non-interference where the mechanisms were created not “by the region, for the region”’. Article 7 of the draft treaty obliges States to extradite or prosecute for all listed treaty crimes, an obligation that emphasizes the importance of domestic and local—rather than international—prosecution. Translating draft art 7 to the interests of Asian jurisdictions, could be argued as one way to maintain sovereignty by deciding when and where information is shared and by locating justice ‘closer to home’.

Conclusion

Neither the domestic use of customary law nor the draft mutual legal assistance treaty is a sure-fire way to overcome barriers to adequate enabling legal frameworks for domestic prosecution of atrocity crimes in Asia. Further, this post has not been able to broach the issues bringing domestic cases in death penalty jurisdictions as all three jurisdictions mentioned here permit—reasoning regarding the death penalty in our region has also previously thwarted broader customary international law arguments before and could thwart signature to the draft treaty (see art 21(1)(b)).

However, every difficult anniversary that passes should remind all practitioners that ‘rethinking accountability’ means being curious and courageous enough to consider and pursue every available avenue—and a few yet to exist.