Source: The Conversation (Au and NZ) – By Emma Palmer, Lecturer in International Law, Griffith University
Just four months ago, Timor-Leste formally became a member of the Association of Southeast Asian States (ASEAN).
This week, the tiny country took an unprecedented step: its judicial authorities appointed a prosecutor to examine the Myanmar military’s responsibility for war crimes and crimes against humanity. It’s believed to be the first time an ASEAN state has taken such an action against another member.
The case resulted from the persistence of a victims’ group, the Chin Human Rights Organisation, in pursuing justice for the Chin people, a minority group in Myanmar. In submitting the complaint, the head of the organisation expressed solidarity with Timor-Leste’s own historic efforts to secure justice and independence.
Timor-Leste authorities will now assess whether to bring charges against Myanmar’s military leaders, including junta chief Min Aung Hlaing.
Any prosecutions would be on the basis of “universal jurisdiction”. This is a legal principle that allows domestic courts to hear cases alleging international crimes, regardless of where the crimes occurred, or the nationality of the victims or perpetrators.Limitations of international courts
This week, a major study of 23 conflicts around the globe said the international legal system designed to protect civilians is at a “breaking point”. Observers are also asking whether the United Nations has any future at all.
It has long been clear that international courts have limited efficacy in prosecuting cases of war crimes and crimes against humanity.
Critics argue the International Criminal Court (ICC) has engaged in selective prosecutions, is too slow and has weak enforcement powers. In the past 20 years, the court has heard 34 cases and issued just 13 convictions.
However, proponents of the court say it has been unfairly maligned and targeted, including by the Trump administration, which imposed sanctions on it last year.
The International Court of Justice (ICJ), meanwhile, can hold states accountable for crimes, but not individuals.
Both the ICC and ICJ have investigations underway on Myanmar, but they deal with crimes allegedly committed against the Rohingya minority group before the coup. The ICC case covers incidents committed partly in Bangladesh.
The ICC’s chief prosecutor asked the court’s judges to issue an arrest warrant for Min Aung Hlang in November 2024. More than a year later, a decision has yet to be made.
Challenges for domestic courts
In this environment, universal jurisdiction could play a more important role. The United Nations has implicitly recognised this by establishing investigative mechanisms for Syria and Myanmar that gather evidence for future prosecutions in domestic, regional or international courts.
Many states have laws that allow them to prosecute international crimes like torture, genocide or war crimes. What is lacking are resources to fund investigations and transparent criteria or guidelines for how to undertake them.
There are other challenges once cases are underway, too. For one, domestic courts have limited reach. Arrests are difficult, as high-level officials can rely on diplomatic immunity or just avoid the countries where they believe they could face prosecution or extradition.
Prosecuting even lower-level or mid-level perpetrators can be politically awkward. Cases can be expensive and practically difficult, especially when witnesses and evidence are mostly overseas.
The scale and complex nature of these crimes can also be challenging for domestic criminal courts that have limited experience with them.
And if trials go ahead, victims can still find justice elusive, even if the cases have broader strategic or symbolic aims.
Still, there have been successes. Nearly 10 years ago, the former president of Chad, Hissène Habré, was convicted of international crimes in Senegal. The case was tried using universal jurisdiction, driven by civil society networks.
More countries need to step up
This latest initiative in Timor-Leste comes after victim groups have tried many different countries to seek justice for the people of Myanmar. This includes Argentina, where arrest warrants were issued for Myanmar’s leaders, Turkey, and Germany.
In the Asia-Pacific, lawyers have also attempted to bring cases in Indonesia and the Philippines.
While European countries are increasingly using universal jurisdiction to prosecute crimes, other countries have been less keen to take these cases on. For instance, some suggest Canada and Australia could do more to investigate war crimes cases, even though they both have the laws in place to do so.
This just leaves the heavy lifting of prosecutions to others, possibly in courts with more limited resources.
With atrocities continuing to be committed around the world, it’s become more vital than ever for governments to not just back international justice with strong words, but show a real commitment to investigating them at home.
Associate Professor Emma Palmer is the recipient of an Australian Research Council Australian Discovery Early Career Award (project number DE250100597) funded by the Australian Government. The views expressed herein are those of the author and are not necessarily those of the Australian Government or Australian Research Council. She is also affiliated with the Association of Mainland Southeast Asia Scholars.
– ref. With international law at a ‘breaking point’, a tiny country goes after Myanmar’s junta on its own – https://theconversation.com/with-international-law-at-a-breaking-point-a-tiny-country-goes-after-myanmars-junta-on-its-own-275089
