Symposium on Prosecuting Asia-Pacific Crimes: Choosing Justice – Forum selection in Universal Jurisdiction cases

[Emma Palmer is Associate Professor at Griffith Law School researching the use of universal jurisdiction to prosecute international crimes in the Asia-Pacific.

Chuka Arinze-Onyia is a doctoral student at Griffith University Law School researching universal jurisdiction.]

This research was supported by Australian Research Council Discovery Early Career Award (project number DE250100597). The views expressed herein are those of the authors

Southeast Asia has become a major site for the development of universal jurisdiction. In 2026, two cases have been formally accepted for investigation, one in Indonesia and the other in Timor Leste, both concerning mass atrocities allegedly committed by the Myanmar junta against civilian populations. In Timor-Leste, a prosecutor was assigned to investigate the allegations within weeks of the complaint being filed, while further developments are being awaited in the Indonesian filing. Before either of these, a similar complaint against the Myanmar junta was filed in the Philippines without apparent progress since 2023. Cases concerning Myanmar have also been filed in States outside the region including in Turkey and Argentina, and before international tribunals like the International Criminal Court and the International Court of Justice. These cases involve largely the same defendants, even if they are substantially differentiated by their scope.

These developments demonstrate that the main challenge for victims of atrocity crimes seeking accountability is increasingly not about whether a forum exists, but which forum offers the best opportunity for meaningful justice. Discussions at a two-day workshop in Brisbane between legal practitioner and civil society actors revealed how forum selection is a strategic choice made after careful consideration of several important factors. These include the legal framework, institutional capacity, the political context and other advocacy objectives. Understanding these considerations could explain the deployment of universal jurisdiction within the region.

What is the law?

Civil society actors deciding where to file universal jurisdiction case must begin by assessing the applicable domestic law. States, through their domestic statutes have adopted different approaches toward prosecuting extraterritorial mass atrocities. In recent years, several states have adopted laws requiring the consent of the Attorney-General or some other government official, the presence of the accused person, and/or some other connection to the state to activate the exercise of universal jurisdiction. Other states have integrated international law, including customary and treaty law, as part of their domestic law, allowing for a more expansive approach to universal jurisdiction. The domestic law and the possible interpretations of it determine where cases are legally possible, and civil society actors must either act within the remits of existing legal interpretations or challenge them. For instance, in Case No. 89/PUU-XX/2022, the Indonesian Constitutional Court rejected an argument brought by civil society aiming to extend the jurisdiction of the Law 26/2000 Human Rights Courts to prosecute crimes committed by non-citizens. Ensuring that the prevailing domestic law actually does hold scope for the exercise of universal jurisdiction is a key consideration in deciding the appropriate forum.

Domestic capacity

Even when domestic law favours universal jurisdiction, there are important factors to consider including: the forum state’s human rights record, the independence of the judiciary and its ability to conduct a fair trial, the existence of the death penalty, and other conditions that may expose the accused to punishment prohibited under the international human rights framework. A conviction secured under a compromised judicial process may undermine the legitimacy of universal jurisdiction and give both states and critics a genuine complaint.

Beyond judicial quality, States must have the necessary expertise and legal framework to support the collection of evidence abroad, or utilize evidence collected by civil society organisations. Civil society point out that institutional actors can assist, such as the Independent Investigative Mechanism for Myanmar, which was established by the UN Human Rights Council to collect, preserve and analyse evidence of atrocity crimes in Myanmar. They must be able to provide interpreters for the languages spoken by witnesses from foreign countries. Importantly, the legal system must be able to provide at-risk witnesses with the necessary protection.

Finally, the presence of experienced legal experts trained in the prosecution of international crimes is also important in defining domestic capacity. Chris Gunness, the Director of the Myanmar Accountability Project (MAP) and a participant in the workshop, explained that lawyers are necessary to identify and apply the law on behalf of survivors. They are crucial in navigating the intricacies of the domestic system, identifying the sort of witness testimony required, and building a case that has the strongest chance of leading to prosecution. It is for this reason that Timor Leste and Indonesia, both States with experience in prosecuting atrocity crimes, and the Philippines whose legal system has engaged extensively with the ICC, offer potential avenues for the pursuit of accountability in the region.

The socio-political context and the generation of political will

Beyond the legal framework and domestic capacity, another important issue for civil society is the existence of the political will to conduct investigations on the basis of universal jurisdiction. For many states, it could be difficult to justify undertaking the relatively expensive cost of universal jurisdiction cases if domestic populations lack much connection to the case. To navigate this problem, civil society acting within the ASEAN region frame universal jurisdiction cases in terms that resonate not only with the government of the forum state, but with its population. For instance, in Indonesia, a majority Muslim country, MAP supported the filing of a Rohingya case with the accompanying press release appealing to Indonesia’s population to support the Rohingya, described as “a defenceless Muslim population” facing ongoing genocide.

Similarly, the Chin Human Rights Organization (CHRO), a victims group representing the Chin people, a Christian minority ethnic group in Myanmar, chose to file cases in the Philippines and Timor-Leste, States with large Christian populations. In the press releases connected to their filings, they emphasised that pastors, churches and Christians were being targeted in a widespread campaign of violence. In calling for accountability, they hoped that “as Christians, our prayers for justice, peace and dignity on behalf of the people of Myanmar, will be answered.” The Timor-Leste filing also invoked a shared post-independence history of violence against civilians between Timor-Leste and Myanmar after generations of Western colonisation, noting that the complaint “will resonate powerfully with the Timorese people.” These examples reveal that civil society recognise the need for cases to resonate with the peoples of the proposed forum state. In that sense, these cases, while grounded in “universal norms”, are primarily advanced through shared domestic interests.

Another generator of political will is the presence of larger numbers of victims in the forum state. Johns et al have identified a prevalent pattern of states exercising universal jurisdiction in situations where there is a substantial population of survivors who have migrated to the forum state. This largely makes prosecution and investigation easier, as the witnesses are already present in the state and are therefore easily available to give evidence. Megret introduces a cosmopolitan dimension to this, arguing that States with a large population of survivors also exercise universal jurisdiction as a way of creating a “safe, welcoming and hospitable society” for members of their society who have escaped violence.

However, generating political will may face some structural resistance. ASEAN member states have adopted a regional norm of “non-interference” which substantially limits the ability of states within the region to respond to atrocities. Myanmar, for example, responded to the Timor-Leste investigation, by expelling Timorese diplomats from Myanmar, accusing the country of breaching the norm of non-interference.

Civil society actors push back against treating the regional norm of non-interference as a definitive barrier to justice. They argue, for instance, that Myanmar itself should not interfere in the legal systems of other states. They suggest that the conflict has ceased to be an internal matter, but has real consequences for regional security, peace and economic progress. They point to the fact that other ASEAN states are already bearing the cost of the conflict caused by mass displacement of Burmese nationals and the disruption of trade. Therefore, ASEAN states exercising universal jurisdiction are not interfering in the affairs of a third state, but responding to a crisis that directly impacts them.

Aims of forum selection:

Ultimately, civil society must define the aim of initiating universal jurisdiction cases. This is done primarily by centring the needs of victims and survivors. While prosecution and criminal accountability remain the primary goal, civil society are also able to achieve other important objectives by selecting the appropriate forum for universal jurisdiction cases.

The threat of universal jurisdiction contributes to what Bryce et al define as “living in fear”, as opposed to “living with impunity”. The knowledge of the existence of universal jurisdiction cases substantially limits the ability of perpetrators of atrocities to leave their home country, as any ill-considered travel may result in an arrest somewhere. Filing claims in various countries also weakens the sense of impunity, since civil society can claim that cases ‘are piling up in multiple jurisdictions around the world’. Furthermore, universal jurisdiction may galvanise the territorial state to conduct its own domestic prosecutions, rather than yield to foreign pressure to extradite its nationals. The substantial press attention generated by the filing of universal jurisdiction cases, also provides victims with an avenue to tell their story to the world and confront their abusers. That visibility may yield substantial diplomatic and political gains. For instance, in Timor-Leste, shortly after the filing by CHRO, civil society actors met with President Ramos-Horta, who shortly after in a regional meeting in Singapore, described the Myanmar conflict as a “stain on ASEAN’s otherwise impressive catalogue of successes”, signalling a willingness to advance regional conversations towards finding a solution.

Conclusion

Universal jurisdiction cases may not always lead to a conviction, or even a trial, but they shape the pursuit of accountability. They generate contestation, amplify the voices of survivors, raise public awareness and create political pressure. This keeps the prospect of prosecution alive and makes impunity less certain. Selecting the “right” forum for universal jurisdiction cases is therefore a strategic exercise, involving consideration of the existing law, the political context, and crucially, the aims and needs of victims and survivors. As universal jurisdiction expands across Southeast Asia, the guiding question is no longer whether a forum exists, but which forum will actually serve the needs of victims and survivors. While universal jurisdiction may be available to most states, its effectiveness depends on selecting the forum best placed to deliver meaningful justice to those who need it most.