Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Janet 0:01 Hi Steph. Every month, including this month, we’re trying to do a universal jurisdiction deep dive into one jurisdiction.

Steph 0:23  Yeah, we had Belgium last time, the Belgian waffles, what you did without me, but before that I was there for France and of course we kicked off with Argentina. This whole series is for you, Melanie O’Brien. She’s a friend of the pod and a close listener and she’s sometimes a critic, which is great, but also an appreciator of our work.

Janet 0:40  She said specifically she’s enjoying this series, so hoping Mel that this is useful. But this time Steph, I don’t just have one jurisdiction, I have at least four. So how is that gonna work, that smorgasbord of jurisdiction? That seems complicated. This time I thought it’s interesting to try and see it the other way around. And this time I’ve been exploring ideas around Myanmar and alleged international crimes. Not so much the Rohingya ones, but ones post the military coup in 2021.

Steph 1:12  Yeah, Myanmar is still kind of in the news with the what is happening in Myanmar hashtag. There was a lot of attention on the Rohingya story of it because of the genocide case at the ICJ earlier this year and also because Bangladesh has managed to get the ICC involved in looking at the Rohingya in a roundabout way. Just to check with you journalist to journalist and see if our listeners need to know everything, is there anything we need to know? The International Court of Justice, that’s the genocide case, we’ve done deep dive on what was said there.

Janet 1:42  Are you expecting anything out soon on that?

Steph 1:44  No, I think they will take at least six months to reach any kind of verdict, maybe even longer. And with the ICC in November of 2024, the prosecutor requested an arrest warrant for the Myanmar case, but we don’t know if that’s been granted. We could have been granted under seal. Part of the Argentina universal jurisdiction pod that we did, we were also looking into the investigation there into alleged sexual violence and crimes against Rohingya women. And we also had another pod in where we talked about exactly how that case was brought and how victims went to Argentina to testify. But this pod, we’re going to be exploring mainly, really, I think quite extraordinary investigations which have been opened across Southeast Asia.

These are Myanmar’s neighbours essentially telling the military junta, and I think that that military junta recently became officially civilian, but really, come on, they’re saying, no, you can’t actually do that to your own people. It’s caused big political ructions across ASEAN. And I thought it’d be interesting to look into this because it kind of balances up all the attention that we give to the cases that are in sort of our own backyards, which are the ones in Germany, France, and even here in the Netherlands.

Janet 3:07  So I started off with Jenna Dolecek, and she’s an independent investigator, and she’s currently working quite a lot on Ukraine. But previously, she had worked at the IIMM, which is something we’re going to come back to. I’m sure I’ll get this slightly wrong, but here we go. The Independent Investigative Mechanism for Myanmar. And she wrote a small series that was on justice in conflict. So thank you to them for publishing those blogs.  And she was looking at this different efforts of accountability. So I started and called Jenna and said, before I go into it, Steph, can you guess where she mentioned as the first UJ venue for these various crimes going on in Myanmar? What was she mentioning? Well, I mean, I have to confess that I did listen to the clip before this, but before I listened to the clip, I couldn’t imagine what you would come out with. So I had figured maybe Portugal or maybe the US, but it turned out to be none of those.

Jenna Dolecek 4:06  Yeah, well, let’s listen and see where she mentioned. Turkey was actually the first to have a case accepted. Turkey? Turkey? Why? How? Yeah, that one went very under the radar. So that one was filed by the Myanmar Accountability Project. And we did work with them at the IIMM, assisting them with any evidence or anything they might have requested for that case. That one was also originally for the Rohingya. And I think a main connection there is that, you know, both populations are majority Muslim. And so I think it was just kind of also an assessment, you know, of what courts have pure universal jurisdiction, conditional universal jurisdiction, their kind of history in accepting certain cases. That one has been successful. It has been accepted and an investigation has been opened. And the project just submitted new evidence for another incident that happened. So the original one was for torture that was taking place in detention at a notorious facility called Yay Kyi Ai in Yangon. And the second one was about the massacre at Paziji in Sagai region. So actually neither have to do with the Rohingya, but there is a connection there. But they were the first court to also accept post-coup war crimes cases, and not just the Rohingya case.

Janet 5:29  When you think about different countries and their ability or interest in doing universal jurisdiction and the kind of conditionalities that there can be, where does Turkey lie in your firmament? Turkey’s, like we said, kind of an odd one out. But they haven’t had necessarily, I think they had to push the initial investigation a bit. I think it was reopened on an initial look.

Jenna Dolecek 5:54  So they did apply a bit more pressure, but it was successful. And so far it hasn’t been further rejected. The other incident was submitted.

Janet 6:06  So it’s been successful so far, but it’s in the very early phases. And you mentioned the cultural connection of Muslim nations, but you said that the incidents being investigated are not to do with the Rohingya. Could you just tease that out for me? The ICC case and the Argentina case were some of the first and obviously had to do with the Rohingya.

Jenna Dolecek 6:27  So that was where most of the attention was on, understandably, you know, after what had happened in that time, 2017, 2015 to 2019 had come out. So there was a lot of attention on that. The coup happened in 2021. And then that was kind of it. We didn’t hear a whole lot. The ICC doesn’t have jurisdiction. So it wasn’t until a little bit later that Myanmar Accountability Project started submitting post-coup cases and then other organizations started submitting post-coup cases. But for Turkey, the reason why they accepted the Yay Kyi Ai case was because Turkey is a party to the UN Convention Against Torture. And I believe they have opened some other cases or looking into other cases on torture.

Janet 7:08  So that was actually the post-coup case connection was torture allegations. And in your blog post, you also mentioned some other countries where things have been less successful, two in Asia, Philippines and Indonesia. Do you want to run through those? Indonesia was a very interesting case.

Jenna Dolecek 7:28  So what had happened was a lot of Rohingya did flee to Indonesia. Again, they also had a large Muslim population, and it’s just geographically closer to Myanmar. So a lot of Rohingya refugees in Indonesia wanted to explore whether or not they could do anything there. But the issue ended up being the Indonesian constitution. So the wording in the constitution says that any individual can bring a case of human rights violations. But when that case was submitted and went to court, they rejected the case saying no, that’s only any individual means Indonesian citizens only, not any individual in the world. So then there was a push by Indonesian human rights organizations, Indonesian lawyers to actually change the language of the Indonesian constitution to mean any human, not any Indonesian citizen. Unfortunately, that was again rejected by the Indonesian court. For the Philippines, this was again by the Myanmar Accountability Project. And they decided to file the case after Duterte was taken to The Hague. And there was a change in administration, which signaled to be more open to human rights. So that case was filed in the new administration. And this one happened to do again with post coup crimes in the western state of Chin. So Chin state was very heavily targeted by the Myanmar military. And it is unfortunately well known for a series of kind of arson campaigns. A couple years ago, it’s essentially a ghost town now because of how heavily it was attacked by the military multiple times over a several month period. So they’re pushing for Philippines to open investigation to that case. And you also mentioned Germany, kind of the stalwart of universal jurisdiction cases with the ability to open structural investigations and, you know, all the bells and whistles.

Janet 9:21  So what about Germany? Yeah, Germany was also an interesting case. So that one, their explanation for the rejection was a little unfortunate because they said the one of the reasons they didn’t want to was because it would duplicate efforts of the independent investigative mechanism for Myanmar. But the issue with that is the mechanism has zero prosecutorial powers whatsoever.

Jenna Dolecek 9:44  They can’t open cases in courts. They can’t issue arrest warrants. All they do is gather evidence. So I found that reason to be quite flawed, especially because they tried so many Islamic State cases for Syria and Iraq while UNITAD existed. You know, the mechanism for crimes committed by the Islamic State in Syria and Iraq. So I really did not understand that reasoning there, to be quite honest. And none of us really did. We were kind of very disappointed by that. Jenna mentioned in that interview the Myanmar Accountability Project.

Steph 10:15  If you carry on listening all the way through to this podcast, then you’ll hear that I also got an update from the director there, Chris Gunness, which will play as part of this. But what about what Jenna had to say? What are your thoughts, Steph? I thought it was really interesting how they’re trying to get these universal jurisdiction cases and that some countries are happy to take them because Myanmar people have fled to their territory and in other states it’s much more complicated. She talked a little bit about Indonesia and trying to get a case there, but it wasn’t possible because the people weren’t Indonesian citizens and then they tried somewhere else. And so I thought it was interesting that there is this big willingness by Asian kind of grassroots organisations in their own countries to bring these cases to trial. So talking about Asian grassroots organisations, that was my next stop. This is the organisation that has provided much of the information behind the investigation in East Timor.

Janet 11:16  So let me give a bit of a setup because I know that we’ve done Stephapedia considerably, so I’m just going to do the equivalent of that. This is about the Chin people. These are people who live in the northwest of Myanmar. It is one of the major ethnic groups of Burma, Myanmar. It’s the bordering area with India and Bangladesh. It’s been described to me as one of the most remote and neglected regions in all of Myanmar. And interesting, the majority of the Chin people are Christian. Again, not the same as the predominant almost state religion, I believe it is, in Myanmar. So they have been somewhat isolated, partly by religion, partly by topography. It’s hilly, it’s historically underdeveloped, they’ve got very little in the way of infrastructure, roads, schools, hospitals. So for this, I spoke to a representative from one of the long term human rights groups who’s been working for the last 30 years documenting human rights violations. Zaok, you can call me Salai Za Uk.

Salai Za Uk 12:17  I’m the executive director, CHRO, Chin Human Rights Organization. He told me also there are about half a million Chin people inside the state and many more living outside. It’s about two and a half million altogether and the whole of Myanmar’s 55 million.

Janet 12:35  And he explained to me then what happened in the Chin state when the military took over in the coup across Myanmar. When the coup hit in 2021, we were already the poorest among the nations. Yet the regime decided to attack Chin state first militarily when people rose up and all civil servants walked out of their job in protest and people protested on the streets.

Salai Za Uk 13:09  So that’s when they decided that somehow, Chin state should be made an example of how opposition to military coup would be met. So they sent in thousands and thousands of troops to the region and started attacking the people there. And part of the military’s strategy, war tactics, has always been what’s famously called the four cuts strategy, which involves, you know, physical cutting off of access to road, access to food supplies, and all of that compounded the already dire situation in the state. So five years later, we have nearly a third of the population being displaced because of the military’s violence. What I’m interested in understanding from you is what prompted you to try to get some accountability for what? And how did you approach it? I mean, what was it that made you try to go down this route? Well, because following the coup, the scale of the violations and the severity, the brutality of the military was unprecedented. We’re talking about our organization having been engaged in human rights documentation for the last 30 years, and we have never seen such a massive scale. And also the level of brutality was so shocking that when we started documenting cases, we realized that these are, in fact, war crimes and crimes against humanity under international law. And that’s when we looked at some of the cases and decided that years of documentation and the amount of evidence that we have may, in fact, be enough evidence for any kind of legal accountability. So we started, you know, paying more attention to details in our documentation so that any evidence that we gather from interviews with victims, from survivors, and our own documentation on the ground can all be made in such a way that meets the legal threshold of war crime, international crimes of atrocities.

Janet 15:41  Did you have a sense, though, that the international community’s gaze has been so focused on the Rohingya and what’s happened in Rakhine State, did you have a sense that, what about us? Yeah, certainly. And the Rohingya situation has caught international attention and been dominating whatever comes out of Myanmar, Burma. And for the right reason, because they are the most vulnerable groups in the country, and they’ve been subject to horrific crimes.

Salai Za Uk 16:18  And there are many parallels to the Rohingya situation, because we are also a religious minority, systematically persecuted for decades. The difference is that Rohingyas are more vulnerable because their lack of citizenship, whereas the Chin, we are co-founding a member of the Union of Burma when it started out as a nation. And we have, at least, been accommodated to some extent. So when the violations intensified, and you know, the displacement and the resulting humanitarian crisis that has been deliberately directed against our people, we saw the similarity. In fact, from a religious minority perspective, we’ve been facing the same kind of restrictions, discrimination for decades. It’s certainly been an inspiring factor when we see our own situation.

Janet 17:20  And the specific incident or set of incidents that you have brought to the attention of East Timor, can you give me some of the details there? So, for example, there’s a sexual violence against a Chin woman, a heavily pregnant woman, who was gang-raped by the Burmese soldiers in front of her husband. Imagine that kind of brutality and inhumanity. These are cases that have been neglected for so long.

Salai Za Uk 17:57  And the Burmese military, their level of brutality speaks for itself. So it involves mass destruction of religious buildings, churches, and a specific case where a war crime may have been committed when they bombed a hospital and patients, medical workers were killed. So the systematic and widespread nature of the crimes committed in Chin state suggest that there’s a well-intentioned policy behind the attacks.

Janet 18:33  And who is it that you’re asking to be held accountable for these? We named 14 individuals, including from the bottom to top chain of command. The most junior level involves a sergeant who was responsible for committing atrocities on the ground, up to the chain of command, up to the senior general, Min Aung Hlaing, who was ultimately responsible. Were you surprised that this was actually picked up within Dili, in East Timor? Yeah, surprised and not surprised at the same time.

Salai Za Uk 19:14  Surprised in a sense that universal jurisdiction and cases being brought to other countries outside of your own territory, it never happened in Southeast Asia. I mean, at least in terms of civil society, like ours, bringing cases. But the first, not surprised because also we considered East Timor, it stood out among the Southeast Asian nations. They share similar backgrounds, you know, of having gone through atrocities, occupation for years, for 24 years. And they have liberated themselves being the very newly established democratic countries. They subscribe to all basic human rights, you know, the principles of the rule of law, and they have demonstrated moral leadership.

Janet 20:15  So that was all in January this year. That’s in East Timor. So the process is ongoing. What I thought was interesting was also that they’re not working on this by themselves. They’re working in collaboration with this thing called the Myanmar Accountability Project. So a small organisation, but they do seem to be very much kind of a spider in the web for these different accountability efforts. They’re providing a lot of support to these different local organisations to get investigations going. So I also spoke to Chris Gunness, who’s the director of the Myanmar Accountability Project and asked him, you know, just to explain to me very basically, and then we carried on the conversation. But just to start with what it is that they’re planning to do.

Chris Gunness 21:03  We are aiming to tighten the noose of accountability round the neck of Min Aung Hlaing and the soldiers that he commands. And we’re doing that through strategic litigations, mainly now in Southeast Asia, in ASEAN. So we have cases in the Philippines, in Timor-Leste, in Indonesia, and we’re looking to bring a case that may or may not happen in Malaysia. So historically, we also have cases in Turkey, because Erdogan sees himself as a great leader in the Islamic world. And we brought a Rohingya case there. And we also have a non-universal jurisdiction case in London, where we are, so far have prevented the junta throwing the democratic ambassador out of the ambassadorial residence, which they’re attempting to do. So it’s about strategic litigation, mainly in Southeast Asia. But for historical reasons, we have cases in London and in Turkey. And why do you think that’s needed? Because if you look at Security Council Resolution 2669, which is the only Security Council resolution in the history of the United Nations, which centres on Myanmar, and you look at General Assembly resolutions on Myanmar, they all say they want to see regional solutions for regional problems. And so I took that as the lead for MAP. I decided that we would take the strategic choice to bring about litigations in ASEAN. If you look at ASEAN, there are some jurisdictions which are clearly very progressive, conducive, and will be open to universal jurisdiction. And there are some which for legal but also political reasons, are not good places to invest funds if you’re a small, tiny little NGO like MAP is. So we decided that Vietnam, Cambodia, Laos, Brunei, forget it. In Thailand, there because they’re basically run by the party run by the royal family. In Thailand, there are real problems with witness protection. There is a history there of people involved in action against the Myanmar junta being refuled, i.e. handed back across an international border to the junta where they face an uncertain fate, torture, death, goodness knows what else. That left basically the Philippines where we have a case, Timor-Leste where we have a case, Indonesia where we have a case, and Malaysia where we’re thinking very hard about bringing a case.

Janet 23:23  What kinds of crimes are you looking at here? I mean, is this only about the Rohingya or are they other ethnic groups? Good question. I mean, absolutely not just about the Rohingya. Of course, there is the Rohingya case, a very good case, which the British Rohingya UK organisation run by Tun Kim, an excellent advocate, they are doing some very good work.

Chris Gunness 23:47  And in fact, the court in Argentina has now issued an arrest warrant for Min Aung Hlaing and various of his junta fellow war criminals, in my view, and also Aung San Suu Kyi, incidentally. So that case is being brought in Argentina. And we fully, you know, salute the work that’s being done there. So we brought a case in the Philippines, I have to say, because of the politics around international justice, i.e. Duterte withdrawing, former President Duterte withdrawing the Philippines from the ICC. Of course, he’s since been taken there, because there was a change of leadership, Marcos Jr. is now in charge of the Philippines. And because, however, he is concerned that an international crimes litigation of the sort that we have brought might shine a torch into the crimes committed by his late father, Ferdinand Marcos. There are real problems with our case in the Philippines. The prosecutor’s office was so terrified when we turned up there that they didn’t even accept our case. They didn’t even give us a docket number. So technically, we don’t even have a case. We haven’t got anything to appeal against, though we have submitted what’s called a motion to reconsider, which is effectively going to appeal and saying, you’ve not followed your own rules, you’re meant to give us a case number, you’re meant to receive our evidence. And that is a process which is ongoing.

Janet 25:10  We’re now at the appeal stage in the Philippines. The way that you describe all of this suggests a really intensive amount of work on the politics, as you describe it, not only of international justice, but the local politics and knowing the personalities and knowing exactly what’s in the law and really positioning. I mean, is that where most of your effort has to go into? It just sounds very, when you talk about strategic litigation, this sounds incredibly strategic.

Chris Gunness 25:41  Yeah, it is. I mean, when we design our cases, and by the way, full disclosure, I am not a lawyer, thank the Lord above. I’m a sort of project manager. So I bring together some of the most brilliant lawyers in Southeast Asia, who have a track record in a legal scholarship, but also human rights activism, courtroom litigations of a very hands on sort. I mean, one of our lawyers in the Philippines is now working on the Duterte case at the ICC in The Hague. But because the Philippines has a long track record, Duterte’s war on drugs, for example, and then all the Marcos era, and crimes that were committed in the 70s and 80s, there is this tradition of amazing lawyers. So we work with these extraordinary lawyers who do the legal analysis. We work with investigations groups who have a very strong track record in that. And because I have a long history of media work, I was a BBC correspondent for over 20 years.

And I did media work as Director of Communications for the United Nations in the Middle East. I bring this sort of public advocacy and communications skills to the project. So yeah, I mean, it involves matching the legal requirements of the penal code, finding the right lawyers, finding the right complainants, with the political environment, and then working to amplify our messages in the media. So there are very much those kind of three elements that go into the design. And yes, I mean, a lot of consideration is given to that. I mean, I think a good example would be an anatomy of our work in Timor-Leste. Our lawyers there because Timor-Leste is such a new, it’s the world’s fifth newest country. It’s a very small place. And this work is very much unprecedented. So we’re feeling our way every time we do something, you know, file something or say something. And that involves, I think, being very closely in touch with all the politics of it. So for example, afterwards, we filed our file in Dili at the beginning of January, we had a meeting with the President, José Ramos-Horta, who met us, and his support has been invaluable. And when we’ve had political pushback, which we have had in Timor-Leste, it’s been very important for us to be in touch with the various parties, for example, Marti Alkateri, who’s the head of FRATILIN, the big resistance organisation that fought Timor-Leste’s way to independence. He’s very supportive of our case, for example. The Ombudsman has been very supportive. So there are key players within Timor-Leste who we have very good relations with. And so we have tested the water, tested messaging, tested various legal processes on them and brought them on board. And that has been a very, very important part of our work in Timor-Leste.

Janet 28:29  Doesn’t kind of getting so close to particular figures at particular times, I mean, they might be in power or close to power now, but that might change at any moment. Isn’t that a danger that it might cause a problem to your work? Oh, it’s it’s a real and present risk without any doubt whatsoever. And actually, it’s quite funny, when we went to see José Ramos-Horta in Dili, our message to him was, could you please make sure that this process is completely depoliticised? Could you please not get involved publicly? And within an hour and a half of us leaving his office, he put out this incredibly powerful statement, saying he’d have this extraordinary meeting with this Chin delegation who were going to hold the Myanmar junta accountable for what he called a reign of terror against the civilian population.

Chris Gunness 29:16  And, you know, it was extraordinary. But I mean, once he’d made that, what then happened is the Myanmar junta idiotically, in my view, expelled the Timorese charge d’affaires. So the whole thing was blown into the open. So, you know, having said to Mr. to President Ramos-Horta, please, can we deal with this privately? We had no choice but to engage with the public discourse that was going on. And in fact, in retrospect, it may have been quite helpful, because then ASEAN began to get more and more involved about, you know, should its principle of non intervention trump the idea of accountability and justice. And so that unleashed, I think, actually, a rather helpful debate within ASEAN. And I think privately, there are people on the more progressive side of ASEAN who are quite public debate raised its head. I think within ASEAN there’s a lot of frustration which was vented and our case, in a way, was a valve which allowed some of that venting to come out into the open, which I think has been a good thing. But generally speaking, our message is to politicians where we work is this is actually a legal process and that political interference is not going to be very helpful. But inevitably, not least because of the rather overblown reaction of the Myanmar junta, these ideas and these issues and the whole question of universal jurisdiction get blown out into the open. And I have to say, I mean, universal jurisdiction and the development of customary international law is very, very underdeveloped in Southeast Asia. So having a public debate about it, I mean, more people now know what universal jurisdiction is in Southeast Asia than before we started working there.

Janet 30:56  And I think that in and of itself is a very good thing. That’s what I wanted to pick up was this, I mean, I think of universal jurisdiction still as quite esoteric, even in Europe. I mean, of course, we’ve seen a lot of trials here, Syria trials, Yazidi trials, Rwanda, you know, stuff connected to colonial past, essentially not connected to colonial past, but for the fact that there are some colonial connections. So Rwanda trials have happened because Rwandans happen to be in places where they have traditionally lived outside of their own country. But it’s still very small. It’s still not very well known at all. So how on earth did you land on this as Chris, not a lawyer, Gunness? Well, I am someone who believes passionately in the power of information. And I have believed that since the early 80s, when I became a journalist at the BBC. And I used to work on cases involving egregious abuses of human rights as a young reporter, for me, news was about oppressed people in hot countries.

Chris Gunness 32:03  And so I’d find myself in Bangladesh, in Afghanistan, in Cambodia, and I’d be reporting on these appalling abuses. And it would go out and it would be a headline on the BBC. And it would be at the bottom of the birdcage, you know, 24 hours later, and people would have forgotten about it. And I used to give information to human rights organisations, who again, would put out brilliantly researched reports. And through press releases, they would again make the headlines on the BBC for 24 hours and then disappear. And so when the coup happened in Myanmar, in February 2021, nobody was doing universal jurisdiction cases for crimes committed since the coup. And I realised that this was a really sustainable, productive way of using information. And so my interest in universal jurisdiction comes from my interest, which is over 40 years old in the power of information, and how information can be used. And it’s very clear to me that the cases that we’ve brought, have generated a real interest in the information in the facts in the reality of what is happening inside Myanmar. And as I say, our cases are, they are important in of themselves in terms of the legal frontiers that they’re pushing against. And even though it’s water dripping on a stone and very slow, you know, we haven’t achieved a huge amount in legal terms. You know, we’ve got some investigations open, we’ve engaged some prosecutorial offices, we’ve engaged some political entities. But the informational aspect of our cases is what interests me most. And actually, I’ve not mentioned this now, and it’s been very, perhaps the most important aspect of our work, giving victims, people and survivors, people who never thought they’d have access to justice, an opportunity to speak their truth to powers, to stand in front of an international press corps and explain the atrocious crimes that were committed against them, their families, their parents, their cousins, their mothers, their brothers and sisters, and then become advocates for their own communities and their own causes. That’s a really important aspect of what I think the most important aspect of what MAP does.

And that’s again, we come back to this thing that you brought up the use of information, how I came to that, it’s allowing the power of this information to speak for itself, and to allow these survivors of these appalling crimes to become advocates. And that’s a really, really important part of what we do. You framed it right at the start as local justice, that this was going to be the future.

Janet 34:44  Do you see that actually sort of taking root within ASEAN? I mean, maybe beyond the cases that you are bringing, but maybe in other issues as well? Is there starting to become quite a movement across that part of the world? 100%. And one place where it’s really taking root, which I think is the most important place is inside Myanmar itself. In our cases, we prioritise the work we do with organisations who are brilliantly documenting human rights abuses and crimes that the junta is committing.

Chris Gunness 35:23

I never wanted MAP to be an organisation, a bunch of foreigners blustering into some country and saying, this is how you do accountability and justice. Absolutely not. We have at every stage worked to empower local groups inside Myanmar. I’ve mentioned CHRO because they’re public, but there are other groups which I’m not at liberty to mention for obvious security reasons, the junta will simply grab and torch them and kill them. But we see the work that we are doing, and they, more importantly, inside the country, grassroots, Gen Z organisations, see as an important part of grassroots, bottom-up democracy, that if Myanmar is going to see bottom-up grassroots democracy, there has to be a justice ministry, both in the states that we work in and nationally. And so I very much see the work that we are doing with these groups in documenting crimes and producing evidence to be used in court. Absolutely a very small, a very, very small contribution to the future democratic dispensation, both regionally within Myanmar, but also nationally within Myanmar. So yes, our work in ASEAN is rooted very much inside Myanmar. And I think that will surprise many people. In terms of the rest of ASEAN, as I say, we’ve worked in the Philippines, in Timor-Leste and in Indonesia. In all of those countries, each of those countries, civil society is incredibly strong. And it’s incredibly strong, and there’s a real sense of identification with our work, because the sorts of crimes that we’re litigating are the sorts of crimes that these people are dealing with, and are very much in the DNA of these people because of their own recent history. Indonesia committed genocide in Timor-Leste between 1975 and 2000. And so civil society is desperately looking at the work that we’re doing, saying, well, we’re doing this work as well. You’re our brothers, you’re our sisters in this cause. The same is true of the Philippines. You know, look back at Marcos, look at Duterte’s war on drugs. The sorts of crimes that we are litigating in Myanmar are very much, you know, in the recent past of the Philippines. And moving on to Indonesia, of course, you know, we saw the massive pogroms against the so-called communists and leftists in the 1960s. But moving all the way forward to the overthrow of the Golkar party and all of the violence that took place then. So there is in Indonesia, a very, very lively civil society that looks at the work we do and says, you know, we are working on these issues as well. So I think in terms of civil society, I think things are very active and very lively. And there’s a genuine debate about universal jurisdiction, which our cases and others are stirring up. And I think moving on to governments, yes, there is resistance. Yes, there are some governments who are saying we cannot interfere. There’s this ASEAN injunction against interference. There is also the ASEAN Human Rights Charter, by the way, folks, which also, you know, which makes it an obligation for people to have access to justice. And although governments choose not to emphasise that and to emphasise non-interference, it is there. There is that lever if they choose to pull it. So although governments are lagging behind the people, history shows that eventually governments do catch up. So I’m optimistic cautiously about the future of universal jurisdiction within ASEAN. And certainly MAP will continue to push the envelope as vigorously as we can to make that a reality within ASEAN and to make sure that the most disadvantaged people within ASEAN do actually have access to justice. It’s something which, you know, MAP is a tiny, tiny part of this.

Janet 39:08  It’s the civil society groups and the people that ultimately will make this happen. Is there anything kind of specific in the way that you design the interventions that you have or the applications you have where, you know, you’re looking for particular legal ways to get in into the system? There is a lot to say on this. It’s a very good question.

Chris Gunness 39:31

We begin each initiative in any jurisdiction we go to with me finding the right lawyers who will understand the extent to which the National Penal Code will allow a universal jurisdiction case. So let’s take Indonesia. The new penal code specific, which came into force in January this year, specifically allows that they have specific articles which allow for universal jurisdiction. So in our submission, we analysed those articles very, very carefully. And so we, in a way, we disarmed the prosecutor’s office by giving them all the reasons they needed to allow our case to go forward. And we’ve done that in the Philippines, too. And we’ve done that, obviously, Timor-Leste as well. So it is absolutely fundamental when we go into any country that we have a very firm understanding of what the penal code will allow. Because as soon as we filed, there is then a debate immediately all over the place. I mean, not just with the legal echelons, but also with the political echelons, with civil society, with journalists, with everyone, it soon comes up. So we have a very, very firm understanding of the penal codes in each of the countries we go to, and very much what those penal codes allow in terms of universal jurisdiction. Has anything surprised you that’s come up from that? Because both you and I come from a very different legal tradition to some of these countries.

Janet 41:07  So have you had to get your head around some very different way of operating? One interesting thing, actually, was Indonesia, where the debate about the new penal codes centred on the sharia aspects of it. Does it criminalise adultery? Every man in Indonesia was concerned about that. And the big debate was on sharia law and was it too intrusive and the constitutional right to privacy and all of that debate.

Chris Gunness 41:34  And people didn’t realise that written into it was all of this in the penal code, was all of this material about universal jurisdiction. So we were delighted that there was this huge hoo-ha about public, private, privacy, all of that stuff, the sharia aspects of the new penal code. And all the while, when the penal code was being debated, we knew what it said because it was passed in Parliament. We, meanwhile, were preparing our litigation, we were preparing our case. We spent a year and a half doing that. So as soon as January happened, we were able to get in there and to organise our case.  So ours is basically the first case to be accepted by the authorities in Jakarta under the new penal code. And that was a very surprising thing that fell into our lap. You know, suddenly we had a new penal code in Indonesia, which expressly and explicitly permitted universal jurisdiction cases to be brought.

Steph 42:35  And hey, presto, we brought one and let’s see where it goes. And Janet, I believe there are disclosures in order now. Yes, there are.

Janet 42:44  For full disclosure, I have actually known Chris for about 40 years, give or take. I was a new trainee at the BBC and he was already one of those very young, but massively high flying individuals who’s already a star. And he was very nice to me then. He’s still very nice to me. So that’s nice. But now we’re in the same beat, which is quite strange. So we’ve gone through quite a lot already. Before we wrap up, we’ve had these insights from Jessica, Salih Za Uk and from Chris. And particularly that point from Chris at the end that universal jurisdiction should take place if possible in the region. What do you think about that, Steph? 

Steph 43:50  Well, I think it’s always the discussion that we have, right, that these international courts are very far away and disconnected from victims. And then we talk about universal jurisdiction as a way to kind of gap stop things that the international courts can’t do. But so far, we’ve seen them also very far away from victims’ organizations or countries where this happens. So we saw a lot of Germany doing Syria trials. We saw the Netherlands doing Afghanistan trials. And we do have some refugee populations that are here, but not as much as you would get in the region. So I think it’s always better to have justice in a space where it’s more accessible. But I wonder how many Myanmar refugees would actually go to other UJ cases in the region, and how many Myanmar victims would actually be in Turkey. So I mean, it’s good to have, I think it’s good to see this international justice not as an exclusively Western kind of product imposed by these Western democracies. And in that sense, having trials or similar cases somewhere else shows that it’s the universality of the concept. And so I, anybody would be for that, I wonder how much more visible it would be on a local scale than what we do now. Well, let’s just have a final word from at least two of our contributors.

Janet 44:57  First from Salai Za Uk. And I was asking him, you know, what matters about this to him. And he said that he really works on behalf of his community. And people have told him from his community that at the end of the day, it won’t be the outcome, whether somebody is actually held responsible or not. What’s most important is that they actually feel seen that they feel acknowledged that the crimes are being, the alleged crimes are being discussed. What I think really matters most, at least for us, is the acknowledgement.

Salai Za Uk 45:36  You know, here’s a country, Myanmar, that has received very little international attention over the years, despite the horrific situation that has been taking place for decades, and especially since the military coup. And we don’t have any independent legal mechanisms that we can rely upon. And being able to be heard, what we’ve gone through, what the people of Chin State has gone through, that in itself is a win for us already. Because when we went to Dili in January, the reaction from the Chin community was indescribable, I would say. Not because they think that overnight, Min Aung Hlaing would be arrested or jailed or punished in some way, but that the world finally acknowledged the suffering of people, the injustices that have been inflicted upon them, that has been neglected for so long, even within Myanmar itself. That was a huge response. And any kind of legal process, no matter how long it takes, can complement each other. And it’s a building block for the ultimate outcome that everybody hopes for. So, every little acknowledgement or the very mere fact that our case was received is already an achievement, I would say.

Janet 47:33  And finally, from Jenna, she helpfully, I thought, put this in a broader context of accountability actors altogether. She likes very much what she sees as this cooperation in this field. And because she’s partly a Myanmar specialist, but also she’s got now this experience with Ukraine and she’s been in other jurisdictions previously. She says what she sees in this Myanmar thing is all these different organizations actually working together. It’s really showing, as you’ve said, Steph, that universal jurisdiction sometimes does things that the international courts can’t always get done, but they’re doing it with these different organizations cooperating. And maybe this experience that people are going through, the human rights activists and the accountability actors are actually looking forward to what kind of a justice system they would want to build for themselves in Myanmar in the future.

Jenna Dolecek 48:39  We’re seeing civil society really go for everything at their disposal, I think, in a way that we really haven’t seen with conflicts before. I think as far as I’m aware, maybe with the exception of Islamic State cases, this is kind of the most active I’ve seen civil society definitely within my lifetime. So I could definitely be wrong. But at least for now, we’re seeing a lot of not just well-known international NGOs like Legal Action Worldwide, but civil society organizations from Myanmar, the citizens themselves kind of trying to take this into their own hands, which is wonderful. This is their country, it’s their future. So it’s not just the international community, which is great. And there’s been a lot of collaboration, which is wonderful, between all these organizations and filing these cases. This is a situation where we kind of have to use every avenue available to us, especially because of the limited jurisdiction of the ICC, only being able to look at the individuals that fled to Bangladesh. That’s such a tiny proportion of the wider conflict. There’s still Rohingya in Myanmar, and a diaspora and everything. But so many post-coup crimes. Most of the attention was put on the genocide, but there’s been so many other crimes in the rest of the country. And not to mention, I mean, it’s the longest ongoing civil war in the world. And the crimes that were committed decades ago, nothing ever came of those. So I think this is also a way for some of that to not necessarily come to light itself, or for those crimes to be tried, but at least there’s a chance for much wider kind of prosecution or crimes to get attention and get the accountability they deserve. And not to mention, it’s only those at the very top that go to the ICC. And there’s a lot of people lower down that have a lot of responsibility that deserve, that should have their day in court as well. And so that’s kind of why I think, you know, universal jurisdiction is an excellent tool to use in these situations where other jurisdiction is lacking. But also another thing was looking at future models that Myanmar can use. Because like we said, these crimes are so widespread. And over such amount of time, we’re going to need some, I think, kind of hybrid approaches to address everything. And in a way that’s meaningful to the people of Myanmar, not just the international community, but what they want, and how they see justice being served for them. MS. HENRY-COOPER Yeah, I think those are very valid points. I think, in the end for victims, what matters is that somebody with some stature looked at these alleged crimes and had an opinion about it, even if their own justice couldn’t do it.

Steph 51:27  But also, as we have this question of what international justice and what international organizations can do, moving towards more universal jurisdiction and countries picking that up is maybe also a way to bolster that idea that there can still be accountability. But thank you so much for this very much needed, very deep dive. I’m sorry, I wasn’t there for most of it. But you did put me up to speed. So thank you. Great.

Janet 51:52  That’s the job of the podcast, getting everybody up to speed. I really enjoyed doing it. And let’s see what we can produce next time around and see which jurisdiction we can go into. Just to say in terms of the whole process, I have no idea from month to month which jurisdiction we’re going to take. It depends what we can get hold of. But I have this big idea that right at the end, that we do a whole series on the Netherlands, because I think that that would be interesting as some kind of a comparison point to ask all kinds of questions that we’d like to ask about our own local jurisdiction and compare it with all of these different other places that we’ve been looking at.

Steph 52:28  That sounds good. I will start buttering up the Dutch officials that will need to talk to us. 

[OUTRO MUSIC]

This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with justiceinfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. Music is by Audionautix.com. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word. Just to say you can also support this podcast, check out our supporters page and there you’ll find details of our Patreon and our newsletter. If you haven’t had enough of us chatting about war crimes and making inappropriate jokes, then go over to Patreon where you can get extra bonus content where Janet and I run our own war criminals book club.