Symposium: Accountability for core international crimes in the ASEAN region: diversity in recent developments
Linking the law and public advocacy:
a win-win for legal scholars and activists
A collaboration between CIL Dialogues and AsianSIL Voices
by Chris Gunness, Director of the Myanmar Accountability Project
Published on 5 April 2023
Lawyers and Journalists: greater than the sum of our parts
The story of the Myanmar Accountability Project (MAP) is a story about the confluence of international criminal law and public advocacy. Put crudely, it’s about where law and journalism meet.
As MAP’s founder and director, I hope our story illustrates that when legal practitioners and scholars clamber out of their silos and embrace the opportunities we offer each other, together we can be greater than the sum of our parts.
Indeed, when silos are broken down, I believe that the prospects for securing justice for millions of victims of international crimes, even within the Association of Southeast Asian Nations (ASEAN), could increase significantly.
The Story of MAP: a Tale of Improvisation
Full disclosure: I am not a lawyer. I am a journalist. As a cub reporter, I was sent by the BBC to cover the 1988 Democracy Uprising in what was then Burma and became embroiled in the struggle, as so often happens when journalists cross the line from journalism to defending human rights.
After the coup took place in Myanmar on 1 February 2021, it was to lawyers I turned, completing a ‘mapping exercise’, which revealed that there was no organization dedicated exclusively to prosecuting atrocity crimes committed in Myanmar since the putsch. Hence MAP was born.
Our first case: Property Law more useful than the Diplomatic Convention
Soon after we were founded, a case fell into our lap. Representatives of the junta in London locked the Ambassador out of the embassy and threatened him with eviction from the Ambassadorial residence. Successfully claiming the forty-million-pound property would have been a significant prize as the junta’s attempts to gain diplomatic recognition intensified in the aftermath of the coup.
By chance the ambassador approached the legal firm I’d been working with on MAP. So we wrote to the junta representatives pointing out that that as operatives of an internationally condemned coup, they did not represent the legitimate government of Myanmar; that the Ambassador would not leave and any threats against him would be reported to the Metropolitan Police.
Rather than embroiling ourselves in a legal case centred on interpretations of the Vienna Convention on Diplomatic Relations we approached the matter as a simple property dispute. The English Property Registry lists the Union of Myanmar as the owner of the ambassadorial residence and if the junta’s representatives wanted to evict the Ambassador, they’d have to go to a county court, obtain an eviction notice and ask the police to implement it. We knew this was impossible.
Moreover, the media advantages of the narrative around our case were obvious. Here was the ambassador of a democratically elected government being thrown onto the streets of London by representatives of a military regime whose widespread and systematic atrocity crimes had led to calls for a global arms embargo.
I took the story to the media and received favourable coverage. Sympathies with the Ambassador and for MAP’s approach were further strengthened by positive coverage in the South East Asian media.
Encouragingly, in response to a Parliamentary question which our allies had asked, the UK Government has now formally recognised the Ambassador’s bravery and the personal cost he paid, linking this statement to their steadfast opposition to the coup.
As of the time of writing, our legal and media strategies have worked. After its initial push, the junta has backed down and to date has made no serious attempt to eject the ambassador from his home.
The Search for Jurisdictions
Meanwhile, as word spread through the media work I was doing about MAP’s mission, victims came to us and my search for appropriate jurisdictions quickened.
I spoke with legal scholars, law firms and prosecuting authorities in the UK, Ireland, South Africa, Sweden, The Netherlands, Holland, Germany, Portugal and Argentina, among others.
In the days when I began my search, registries of mechanisms for universal jurisdiction produced by NGOs only went so far. Happily, the Clooney Foundation for Justice has since launched the Justice Beyond Borders Initiative, a superbly ‘user friendly’ tool which maps out the possibilities for universal jurisdiction.
But in truth, you only find out what might really work when you talk to in-country lawyers and examine in detail the legal routes to a prosecution. And, crucially, you need a thorough understanding of the politics around your case.
Beyond politics and legal mechanisms, other key considerations in my search were the availability of experienced lawyers and calculations around strategic litigation. By this I mean that with MAP’s limited resources, we had to balance the prospects of justice for victims with a strategic view of where we wanted to establish legal confrontation lines against the junta.
For example, Argentina, with its rich history of transitional justice since the ‘Dirty War’ in the 1970s and 1980s has excellent legal scholars and practitioners. But there already was a case in Argentina around the Rohingya genocide in 2017. So I decided to look elsewhere.
A Torture Case in Turkey
It became clear that for all the above reasons, Turkey was a promising jurisdiction to take the case of a torture survivor who had approached us.
Not only has Turkey ratified the UN Convention Against Torture, universal jurisdiction is permitted under Article 13 of the Turkish Penal Code. Article 77 explicitly outlaws torture as a crime against humanity and we also invoked Articles 94, 95 and 78.1 in our submission to the Turkish authorities.
Moreover, Istanbul is a vibrant media hub with strong political and public antipathy to the Myanmar junta, particularly since the 2017 genocide against Myanmar’s Rohingya Muslims.
Perhaps most important of all was the role of lawyer and campaigner Gulden Somnez with her long experience and understanding of UJ cases, her passionate commitment to justice for the voiceless victims of abuses and who was keen to join us in the struggle for the people of Myanmar.
On 29 March 2022, we filed a criminal complaint against 23 members of the junta at the Chief Prosecutor’s Office in Istanbul. Our file was accepted and sent to the Justice Ministry in Ankara where an investigation has been initiated. True to our mission of creating political waves around our cases, we secured widespread press coverage in Turkey (further examples here, here, here, here and beyond.
As with all our media work, we fed information to the media in Myanmar and international networks focusing on Myanmar with the aim of sending a strong signal to people in the country that they are not forgotten and that legal accountability and international law might ultimately work for them too.
Advocacy on Myanmar at the United Nations General Assembly and the International Criminal Court
In direct support of our legal casework, MAP decided to draft and commission two substantial legal opinions on Myanmar’s representation at the United Nations and the question of Myanmar at the International Criminal Court (ICC). As the arguments contained in them are of direct relevance to our cases, we have also written briefs for diplomats and policy makers, hosted webinars, authored op- eds and made numerous TV appearances.
Our public advocacy may have had some impact. The General Assembly has voted for two consecutive years to reject the UN credentials of the junta and allow the democratic National Unity Government’s Ambassador to remain in his seat. However, although 34 state parties to the Rome Statute have referred the situation in Ukraine to the ICC not a single state party seems prepared to refer Myanmar as MAP has repeatedly urged.
A Future Focus on ASEAN
MAP firmly supports the views of legal scholars in South East Asia that ASEAN needs to lead its own regional conversation on universal jurisdiction or risk being left behind in the debate that has been going on in the United Nations General Assembly’s Sixth Committee since 2009.
To coincide with Indonesia’s chairing of ASEAN in 2023, MAP has been working with the progressive law firm in Jakarta, Themis Indonesia, petitioning the Constitutional Court to allow a universal jurisdiction case. We are arguing that the law which established Indonesia’s Human Rights Court violates the constitution in restricting its purview to Indonesian nationals only. Whereas the constitution makes repeated reference to the universality of human rights.
Our petitioners include former Attorney General, Marzuki Darusman, Muhammad Busyro Muqoddas, a well-respected public lawyer, and, significantly in view of the importance of media attention, the Alliance of Independent Journalists in Jakarta.
Among our expert witnesses at the Court include Dr. Cheah W.L. of the National University of Singapore whose presentation prepared for the Court concludes that based on international law and regional ASEAN developments, Indonesia may and should exercise universal jurisdiction over core international crimes like genocide, crimes against humanity, and torture.
She argues that ASEAN States should accept the validity and importance of universal jurisdiction and that sovereignty and international relations concerns should not prevent Indonesia from exercising such jurisdiction. And, in her oral testimony to the Court, she urged Indonesia to participate in the development of customary international law on universal jurisdiction and stressed that Indonesia was already an active human rights leader at the regional and global level.
Crucially, Dr. Cheah pointed out to the Constitutional Court that the Penal Code unanimously approved by Indonesia’s House of Representatives on 6 December 2022 includes a provision for universal jurisdiction for certain atrocity crimes. We felt this was such an important argument that MAP wrote op-eds in both English and Bahasa in the Indonesian media arguing that there was overwhelming political support for the move our petition was requesting and that the Court was not being asked to do anything controversial or politically risky.
Also giving expert witness to the Indonesian Constitutional Court were: Dr. Devika Hovell, of the London School of Economics who set out Indonesia’s obligations and the various frameworks by which governments can ‘manage’ universal jurisdiction; and, Professor Maximo Langer, of University of California Los Angeles who, in addition to his expert witness to the Constitutional Court looking at the history of universal jurisdiction, authored an op -d in the Jakarta Post in which he argued that the burgeoning number of universal jurisdiction cases demonstrates that it is not damaging inter-state relations, as is sometimes suggested.
Antonia Mulvey, Founder and Director of Legal Action Worldwide (LAW), which has recorded witness testimonies among victims of the Rohingya genocide in Bangladesh also provided expert witness to the Court, as did Bivitri Susanto, Senior Lecturer at the Indonesia Jentera School of Law.
Videos of the expert testimonies by Dr. Cheah and Dr. Hovell can be found here and of myself and Professor Langer here.
A Question and a Challenge
Seventy per cent of respondents to the recently published annual survey of policy makers and academics in ASEAN by the Yusof Ishak Institute in Singapore felt that the Association was slow and ineffective. More to the point, the survey revealed deep divisions over ASEAN’s Myanmar policy.
So I end with a simple question and an implicit challenge: moving forward, might the work of legal scholars and practitioners shift the dial on this and, by dint of pursuing legal remedies, prompt ASEAN to promote respect for the rule of law in Myanmar more effectively and with greater unanimity?
l hope I have suggested a possible answer, by demonstrating that when public advocacy professionals and legal scholars work together, we are greater than the sum of our parts.
Christopher Gunness is Director of the Myanmar Accountability Project. He spent 23 years at the BBC as a producer, correspondent and news anchor and 15 years at the United Nations in the Middle East as Director of Strategic Communications and Public Advocacy.
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