Symposium on Prosecuting Asia-Pacific Crimes: Reflections on Prosecuting International Crimes Before Domestic Courts in the Asia Pacific and Europe

[Olivera Simić is a Professor with the Griffith Law School, Griffith University]

In this piece, my main question is: if the future of international law is domestic, then who guarantees that domestic courts apply universal jurisdiction and enforce international standards in their proceedings? Here, I reflect on some differences that may arise when prosecuting international crimes under the principle of universal jurisdiction (UJ) in Europe and the Asia-Pacific. There is great diversity among both regions, but I attempt to draw out some general comparisons. Geopolitics cannot be ignored, and there are notable differences between these two regions in how international crimes are prosecuted, if they are prosecuted at all, before domestic courts. Broadly speaking, there is underutilisation of international criminal law (ICL) in the Asia-Pacific region and the challenges for UJ are prohibitive, and likely worse, than in Europe.

To begin with, compared with Western Europe, some countries in the Asia-Pacific are under-resourced and there are numerous open or frozen conflicts. Indeed, the Asia-Pacific hosts some of the world’s most prominent unresolved conflicts, spanning active civil wars, tense geopolitical flashpoints, and entrenched territorial disputes. In many persistent conflicts, the commission of international crimes is on-going and even when it is not, high levels of corruption and a lack of willingness to deal with past mass atrocities can affect justice systems. On the other hand, Europe has one active conflict, the Russian invasion of Ukraine. It also has a frozen conflict, one in Bosnia and Herzegovina, and Cyprus has a protracted social conflict. In such contexts, domestic prosecutions of international crimes face challenges. These might be pronounced in the Asia-Pacific.

Impunity for mass atrocities

The Asia-Pacific region suffers from a high level of corruption and autocratic governmental regimes that are reluctant to deal with past mass atrocities. Sri Lanka’s government is one of them. The war that started in 1983 ended in 2009, claiming up to 100000 lives. More than 15 years after the war ended, the government still has not identified the disappeared bodies. Despite investigations, mass grave exhumations, and the establishment of the Office of Missing Persons, the fates of most of these individuals have never been found, leaving families seeking accountability and answers. There have been virtually no domestic prosecutions in Sri Lanka for war crimes and crimes against humanity committed during the civil war (1983–2009) by government forces and the Liberation Tigers of Tamil Eelam (LTTE). Successive administrations have shielded abusers. The UN maintains evidence for potential prosecutions abroad under universal jurisdiction, but these efforts have so far been unsuccessful.

Despite years of international pressure, Indonesia, too, has seen domestic prosecutions, but there were either acquittals or the convictions were overturned. Institutional impunity allowed many alleged perpetrators in Sri Lanka and Indonesia to retain political or military influence. The Indonesian national legal framework for prosecuting serious violations did not include war crimes as prosecutable offences, so domestic civilian courts have been unable to try individuals for war crimes. Indonesia’s primary legislation for international crimes, now the recently revised Indonesian Penal Code, still addresses genocide and crimes against humanity and omits war crimes.

As another example, Myanmar has been experiencing ongoing armed violence, with 30 million pieces of evidence stored by the Independent Investigative Mechanism for Myanmar, as we heard from Kaoru Okuizumi. The evidence is stored and preserved, and shared, in the hope of supporting universal jurisdiction or other domestic or international cases. Some commentators argue that this war and the astonishing numbers of displacements of Rohingya and others draw far less Western attention than Ukraine or the Middle East. The crisis is regional, not just domestic, but so far, efforts to bring peace and stop violence have failed. In these countries, alleged perpetrators have largely escaped justice in domestic proceedings.

Incorrect application of the law

In Europe, there have also been significant challenges in securing accountability for international crimes in domestic courts. Cases often have faced delays and ‘systemic challenges’ in Kosovo, for example, and in Bosnia and Herzegovina. Domestic courts use ICL to prosecute war crimes, but they do not necessarily apply international standards in their procedures. In particular, women and men who were victims of conflict-related sexual violence (CRSV) have very little prospect of winning the case if they have no witnesses to testify to this crime. In this way, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) is applied selectively and incorrectly. In the landmark Prosecutor v. Kunarac, Kovač and Vuković case, the ICTY established key precedents regarding the validity of survivor testimony, holding that international criminal law does not mandate forensic evidence or corroborating witnesses to secure a conviction. The judges determined that direct, credible testimony from a victim is fully sufficient. The same wrong application of this principle is seen before the Serbian domestic court that prosecutes war crimes. Just as Indonesia omits war crimes from its legislation, no one has been prosecuted for crimes against humanity in Serbia so far. Denial of war crimes and genocide is rife in the whole region of former Yugoslavia, and many war criminals are treated as heroes, which makes victims fear seeking legal aid. The lack of witness protection and the failure to redact victims’ names from judgments in both countries represent further challenges to successful prosecution. Despite such barriers, and although the war is ongoing, the Ukrainian courts investigate and prosecute war crimes, including CRSV and keep collecting evidence.

Women have been victims of CRSV and have suffered the same crimes across the globe for the past few decades. They can experience similar forms of torture, abuse, and stigma. So there is a universality of this crime that is persistent and ongoing, and then there are some women who suffer terrible discrimination and gender persecution, such as women in Afghanistan. Victims of CRSV have found little justice so far, anywhere, and this crime continues to be perpetrated – at worsening rates. So far, domestic courts have not been any better equipped than international mechanisms to respond to CRSV. Prosecuting gender related harms, or crimes committed in the context of complex conflicts, is likely to also be challenging within Asia-Pacific courts.

War criminals as globe trotters

The principle of UJ has so far been largely utilised by wealthy Western European nations such as Belgium, Germany, France, Switzerland and the Netherlands. These countries have relatively ample (though limited) resources to apply the principle, but they also have the political will and ‘readily available’ war criminals. While designed to ensure no safe havens exist for the worst atrocities, the massive costs and logistical complexities often limit the practical application of UJ to highly resourced countries. The UJ principle is triggered in these states once those suspected of war crimes, crimes against humanity, or genocide find themselves in their domestic jurisdiction. The hope for this principle to be used as a mechanism of justice is that war criminals either emigrate or become globe trotters and travel outside of their state of origin, where they committed alleged crimes. War criminals know that they are safest in their own country, where impunity reigns and where they enjoy the protection of their governments. They also know how risky it is to travel abroad since they may be arrested. Although some suspects occasionally travel abroad, UJ (and ICL in general) can only ever capture some perpetrators unless there is a power shift at home and even then, not often. Many war criminals, whether at home or abroad, will not be prosecuted due to a combination of socio-political circumstances. Thus, even when they do enter a third country, there is no guarantee that they will be arrested, extradited, or prosecuted. Australia is an example of an Asia-Pacific country with no track record of successful prosecutions of international crimes under universal jurisdiction, and very few arrests and extraditions. Consequently, effective accountability for international crimes cannot depend solely on the possibility that suspects may travel beyond the jurisdiction in which they reside. Paradoxically, the more UJ is utilised, the less war criminals will be willing to move outside of their jurisdiction.

Conclusion

The implementation of UJ is challenging, and all cases in Europe have usually been driven by the locations of the suspects and witnesses, assisted by the resources available in thoselegal systems. In Asia, there would be those same challenges and possibly more, given the entrenchment of power among actors (including those alleged to have committed international crimes) and historic challenges in sustaining convictions for serious human rights violations. Though there have been some regional cases, judicial independence and the application of international standards can’t be guaranteed. As I argued, the challenges include a lack of financial and expert resourcing, on-going conflicts, widespread state-sanctioned impunity, and there could also be a lack of witness protection. UJ can be applied and suspects arrested when they move to another country or travel, but many alleged perpetrators show no indication of doing so, such as those in Myanmar. If they do, they may travel in more developed countries since war criminals who were arrested so far had been residing in Western Europe rather than Southeastern Europe. (Although paradoxically they may be more secure in Southeastern Europe as there is less of a prospect that the UJ principle will be enforced by the governments there.) Likewise, perpetrators in Asia Pacific may focus their travel on locations where they are unlikely to be prosecuted and unfortunately these destinations include wealthy states such as Australia, Singapore, and Japan since these states have poor UJ track records. Despite the relatively higher number of UJ prosecutions in Europe, those experiences still suggest that there is an ongoing and persistent lack of justice, inadequate responses, or prevention of war crimes anywhere. Although there has been significant engagement with ICL in the Asia Pacific region, these legal systems will likely struggle with foreign cases, too.