Symposium on Prosecuting Asia-Pacific Crimes: A Jacket, a Hearing, a Filing, and an Acquittal – What Justice Actually Looks Like

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

This research was funded by the Australian Government through Associate Professor Emma Palmer’s Australian Research Council Discovery Early Career Award (project number DE250100597). The views expressed herein are those of the author.

What does success look like in international criminal justice? Put that question to a room of civil society leaders, legal practitioners and academics and you will not get a uniform answer. Susan Harris Rimmer, for instance, recounts a story from years ago in Timor Leste about a woman who wanted a jacket. The jacket had belonged to her husband, who was killed in the conflict. The suspected killer had appropriated the clothing for himself and wore it freely around the village. For this one woman, the most immediate justice was not an arrest or a conviction, but the retrieval of a piece of clothing from one who had no right to it.

Antonia Mulvey had a separate experience of justice. Right after the devastating attack on the Rohingya by the Myanmar forces, she spoke with a victim who was particularly concerned about whether they would get justice. They were not asking for food, money or safety. Instead, they wanted to know if anyone would ever know what happened to them. Antonia describes the traces of relief felt by the victims after some of them testified before the ICJ. This was despite the court having issued no ruling on the merits of the case. The hearing itself was cathartic. There was something powerful about seeing the 15 judges of the ICJ listening intently as the survivors of the Rohingya genocide narrated the worst days of their lives. This was important.

The cases Chris Gunness’s organisation has supported have not gone to the trial phase, but the press around each filing have given survivors the opportunity to tell their truths and validate their narratives, which is central to the work of Myanmar Accountability Project. Relying on universal jurisdiction, his organisation has worked with survivor-led NGOs from Myanmar to file complaints in the Philippines, Indonesia and Timor-Leste, three members of the Association of Southeast Asian Nations (ASEAN), a region with an incalcitrant deference to the norm of non-interference. While there are very measured expectations about which cases, if any, will ultimately lead to a trial, Chris believes that the filing of cases in ASEAN states, a region with very little history of universal jurisdiction is significant in itself, in pushing the boundaries of customary international law and shaping the political narrative. The filings have provoked public discussions on accountability and have provided the survivors with opportunities to speak on the record about what happened to them. As Feri Amsari, one of the lawyers bringing these filings, has put it, the purpose is:

“to ensure that the public become aware of what happened and to make the powers uncomfortable.”

Raising the profile of crimes and generating discomfort in seats of power are themselves dimensions of what success looks like. Victims and civil society recognise this.  Even at this very early stage of the quest for justice, Chris recounts that some survivors have mentioned that “we can now begin our grief.”

For Mandira Sharma success came differently. After a long, drawn-out struggle, the defendant who was wanted for crimes committed in Nepal was found in the United Kingdom. Relying on the principle of universal jurisdiction, the United Kingdom twice initiated criminal proceedings against him. Procedural difficulties including problems finding a competent interpreter led to the collapse of the first trial. Unfortunately, the second trial did not fare any better and the defendant was acquitted. Yet, Mandira notes that this acquittal created a momentum and sent a clear message to the Nepalese authorities that they would not enjoy impunity abroad. The acquittal did not undo what the prosecution had already achieved. The Nepalese authorities now knew they were not untouchable. In that way, this was success.

Together, these four stories challenge what Mamdani describes as “the logic of Nuremberg”, where the success of international justice is determined by prosecutions and convictions, and not necessarily how it meets the needs of victims. While unquestionably, prosecutions and convictions are important, victim satisfaction could come several steps before that. A returned jacket, a case filed, an unsuccessful prosecution or even just an opportunity for survivors of atrocities to tell their stories, be heard and be acknowledged. These are the opportunities in which civil society actors find fragments of justice as they come to terms with what the formal system can and cannot do.

Recognising the limitations of conventional international criminal justice mechanisms, civil society actors have increasingly adopted universal jurisdiction as an alternative route through which accountability and recognition may be pursued. Generally, international criminal justice is a slow and sometimes stagnant process, which requires a rare convergence of political will and institutional capacity. Convincing a state to reckon with its own atrocities is a long and arduous process. In the case of universal jurisdiction, convincing a third state to investigate and prosecute the atrocities committed elsewhere is even more difficult, even before considering the practical challenges involved. This is especially so in Southeast Asia, where member states of ASEAN have adopted unyielding compliance to the norm of non-interference, a norm which has become a shield for mass atrocities and the default excuse for regional inaction in the face of international crimes like in Myanmar.

Other than the norm of non-interference, there is also the problem of the fear of hypocrisy. Could the Philippines legitimately, in good conscience initiate proceedings against the leaders of Myanmar without first investigating its own atrocities in the so-called drug war? Could a state with unclean hands stand as the enforcer of global values without first looking into the mirror? These questions quite notably, do not appear to burden European countries which conduct proceedings on the basis of universal jurisdiction, without reckoning with the atrocities of the colonial and slavery era, or even with brutal dictatorships like the Franco-era in Spain. So, should hypocrisy matter? From a moral point of view, the answer is probably, yes, it should. From a practical view, if hypocrisy were a bar to universal jurisdiction, would any modern state survive such scrutiny, and would that not spell the end of universal jurisdiction? This may be why survivors do not care about a state’s past, only its present willingness to commit resources and time to an investigation and prosecution. After all, it was primarily African survivors that drove the wave of universal jurisdiction in Europe, despite the region’s brutal colonial history in Africa.

Perhaps a more urgent question is why civil society within ASEAN continues to seek justice despite the mountainous obstacles to accountability in the region. Despite helping file a case in the Philippines, Chris advises his partners that politics often trump justice, at least in the short term, and that it is unlikely that Min Aung Hlaing would be:

“led through the streets of Manila to court and onwards to jail.”

So why bother filing a case? The first reason is that victims would have the opportunity to speak their truth, just by filing a case, which is empowering in its own way. Universal jurisdiction in this sense provides survivors with the avenue to formally accuse their abusers of atrocities. Even if the cases never go beyond a filing, it forces States to hear the harrowing experiences of survivors.

Mandira points to another important reason for persevering in the face of seemingly insurmountable obstacles, which is that universal jurisdiction cases even when they fail help to “shatter the veil of impunity” and maybe even trigger reforms. The opening of an investigation or even just the filing of a case forces persons who may have otherwise believed themselves to be untouchable, to come to terms with the very real possibility that they could end up in the dock before a judge somewhere, anywhere. As Antonia puts it, universal jurisdiction shrinks the map for persons involved in atrocities. They will not be in planes going places, because there is no safe haven outside their territorial state. And state officials are very wary of this. For instance, when Timor Leste assigned the case filed against Myanmar junta to a prosecutor, Myanmar reacted by expelling the Timorese ambassador from Myanmar, demonstrating in the process that it feared even the prospect of an investigation. It made them uncomfortable.

These stories about a jacket, an acquittal, a case filed but may never be prosecuted, are not a consolation prize for a failed system. They are evidence of the system delivering something real, even if not everything. While some may be more tempted to view success only through the lenses of prosecutions and guilty verdicts, civil society and victims recognise that justice frequently comes in fragments. In little bits and pieces through which survivors are able to reclaim their humanity and power is made answerable, even if only provisionally. There is some justice to be felt in a widow reclaiming what was unlawfully taken from her — a retrieval made possible, in part, because international and domestic justice processes, however imperfect, created the conditions in which such acts of restitution could occur. Justice could also be the entering into the formal record a survivor’s narration of the atrocities they have survived, sometimes only because domestic courts in other countries provided the forum, or because the mere existence of proceedings generated space for survivors to speak. International justice may be slow, but in these moments, it demonstrates that the distance between full criminal accountability and impunity is not infinite.