Can Atrocity Crimes in Myanmar Be Tried in Indonesian Courts?

As Myanmar’s military junta continues its campaign of terror against those resisting its rule, rights activists in Indonesia are waging a novel campaign to bring the senior leadership of the coup government to justice in local courts.

In late September, the Constitutional Court in Jakarta held its first hearing on a petition seeking changes to the law governing the country’s Human Rights Court to allow a case to be brought in Indonesia against perpetrators of atrocity crimes in Myanmar. 

The petition, made by a group of leading rights activists, requests that the state remove the phrase “by Indonesian citizens” from Article 5 of Law Number 26 of 2000 concerning the Human Rights Court. This article currently stipulates that the court “is also authorized to examine and decide cases of gross human rights violations outside the territory of Indonesia, which are committed by Indonesian citizens.” As of press time, a nine-judge panel had adjourned to deliberate on whether to proceed after requesting amendments to the petition.

If accepted, the law would open the way for Indonesian courts to hear cases involving foreign nationals under the doctrine of “universal jurisdiction.” The advocacy group Human Rights Watch (HRW) defines this as “the principle that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.”

Should the changes pave the way for universal jurisdiction, Indonesia would be able to investigate and potentially prosecute atrocities committed by members of the Myanmar military.

This doctrine has emerged as the subject of a Hail Mary campaign to bring coup leader Min Aung Hlaing and other senior members of Myanmar’s coup government to justice. Since seizing power from the elected government led by Aung San Suu Kyi’s National League for Democracy (NLD) in February 2021, Min Aung Hlaing’s State Administration Council (as it euphemizes itself) has committed a range of heinous acts in a bid to smash the broad-based resistance to its rule. This has included the bombing and displacement of civilian populations, the use of torture against arbitrarily detained opponents, and outright murder, to say nothing of the allegedly genocidal campaign that the military waged against the Rohingya in 2016 and 2017.

The latter acts are already the subject of ongoing and prospective cases at the International Court of Justice and International Criminal Court in The Hague. But wary of the limitations of these processes, rights defenders have begun to explore the possibility of using national legislatures to breach the ramparts of sovereignty and bring senior members of the Myanmar military for past and present crimes against humanity.

Rohingya and Latin American human rights organizations have filed a criminal complaint in Argentina requesting an investigation of Myanmar’s military leaders for crimes committed in Rakhine State, and The Myanmar Accountability Project has filed a criminal case in Turkey over the SAC’s alleged widespread use of torture since the coup. 

The Indonesian campaign is thus the latest of several attempts to leverage universal jurisdiction against the military junta. What are its chances of success?

Like the international criminal justice movement writ large, universal jurisdiction reached its high water mark in the shining decade of the 1990s, which saw the establishment of ad hoc international tribunals for Rwanda and the former Yugoslavia, and the establishment of the International Criminal Court via the Rome Statute.

On the night of October 16, 1998, just three months after the drafting of the Rome Statute, London police arrested Chile’s former dictator, General Augusto Pinochet, while he was on a trip to the British capital. The police were acting on the authority of a Spanish warrant charging Pinochet with gross human rights crimes committed after he seized power in a coup in September 1973.

The British courts rejected Pinochet's claim that he was entitled to immunity and ruled that he could be extradited to Spain to stand trial. In March 2000, however, after medical tests were said to reveal that Pinochet no longer had the mental capacity to stand trial, he was released and returned home to Chile.

Human Rights Watch described the Pinochet arrest as a “wake-up call” to tyrants everywhere. But as even groups like HRW acknowledge, successful prosecutions under universal jurisdiction require a lot to go right, from concerted political will to an abundance of simple good luck.

The chances for success in this case are probably slim. Were the court to open the way to a case under universal jurisdiction, Min Aung Hlaing and his cronies could simply avoid travel to Indonesia. Even then, it is unclear whether the Indonesian police would execute an arrest warrant, and whether the Indonesian government would permit them to hold and extradite these leaders. If arrested, there would be a long and complex legal battle over the question of whether Min Aung Hlaing and his cronies enjoy the privilege of sovereign immunity, as Pinochet claimed. 

Like the international criminal justice project more generally, a lot of coincidences would have to take place for a leader like Min Aung Hlaing to ever to see the inside of a jail cell – not least within Myanmar itself. But that’s not to suggest that the effort is a waste of time; far from it. One important value of the law is to communicate and project the norms that a particular political community values. 

Another possible benefit is that this case, and others like it, could conceivably make life more difficult for Min Aung Hlaing and his fellow generals, which is the very least that they deserve. The lengthening list of legal cases against Min Aung Hlaing and the rest of his caste indicates their growing marginalization from the mainstream of the global community – and, with a twist or two of luck, will help bring closer the day that they will finally face some kind of accountability.