The following is the third instalment in a four-part series by Jenna Dolecek on justice and accountability for victims and survivors of atrocities committed in Myanmar. For the first and second parts of the series, please see here and here.

International legal processes are only one path that can be taken in the quest for justice. In our previous post, universal jurisdiction (UJ) was examined as a possible avenue when the International Criminal Court (ICC) and International Court of Justice (ICJ) lack jurisdiction. However, international courts and courts in other countries are not the only accountability mechanisms that exist. Conflicts of the past have seen different approaches to justice, such as the domestic and international hybrid court set up in Cambodia or the local gacaca courts in Rwanda. This post explores the promises and pitfalls of alternative judicial processes.

With the ICC only having jurisdiction over the Rohingya genocide and with only one UJ case being accepted thus far, other approaches to accountability in Myanmar are required. One possibility, which has already been tested in southeast Asia, could be a special court akin to the Extraordinary Chambers in the Courts of Cambodia (ECCC), set up solely to try crimes of the Khmer Rouge committed during their reign of terror in the late 1970s.

The ECCC is home to trials of former Khmer Rouge officials responsible for the genocide led by Pol Pot from 1975-1979. The Court was created by an agreement between the United Nations and the Royal Government of Cambodia, whichasked the international community for assistance in prosecuting perpetrators. Pol Pot died in 1997 and the ECCC did not become operational until 2006 — twenty-seven years after the genocide ended. Due to the creation of the court and its trials being such long processes, the most important official and perpetrator escaped accountability. 

However, others still had to answer for their crimes. Top officials from the Communist Party of Kampuchea, the government of Democratic Kampuchea, as well as the head of S-21, or Tuol Sleng prison, were investigated. Kaing Guek Eav, also known as Duch, the head of S-21, died in 2020 after spending 10 years in prison. One Phnom Penh resident said about Duch’s death: “He deserves to serve more prison terms. But now he has died, I can forgive him and his case is finished.” 

Nuon Chea, aka Brother Number Two, was sentenced in 2018 but died in 2019, after barely serving any time. Khieu Samphan, aka Brother Number 4, is still alive and serving life in prison after being sentenced in 2014. Ieng Sary was arrested in 2007, but died during proceedings in 2013. Ieng Thirith was arrested in 2007, found unfit for trial, and stayed under judicial supervision until her death in 2013. Other high level individuals were also investigated. The case of Meas Muth was requested to go to trial but denied for lack of jurisdiction in 2021 and Sou Met, part of the same case as Meas Muth, died during investigation. The case against Im Cheam, Ao An, and Yim Tith, was dismissed for lack of jurisdiction.      

Three of the Court’s Cambodian judges refused to arrest one of the suspects until issues with his arrest warrant were decided, causing disagreement between them and the ECCC’s international judges. The aforementioned cases against Muth, Cheam, An, and Tith, were all dismissed due to disagreements on jurisdiction between domestic and international judges. These situations demonstrate how hybrid courts are not free from costly internal disputes.

A similar hybrid court could be established for Myanmar once a new, democratic administration takes power. Granted, the ECCC’s long journey is one major argument against it. With arrests, sentences, and imprisonment happening almost 30 years after the fact, the window for meaningful punishment largely passed and many perpetrators got away with their crimes. 

The slowness of such accountability is an argument in favor of a local, community-based system as more judicial bodies can try more suspects, especially those at lower levels. The United States Holocaust Museum, which carries out research on genocides around the world, echoed many of the aforementioned criticisms but also recognized the ECCC’ssuccesses and claimed that it helped many recover from the crimes committed against them by establishing the truth.

Although life in Cambodia has improved since the fall of the Khmer Rouge, there is still a long way to go to achieve a free democracy and respect for human rights. Former Khmer Rouge officials still occupy positions in the current government, likely inhibiting meaningful progress. Cambodia ranks 155 out of 193 countries on the Human Development Index, Freedom House ranks Cambodia 23/100 on the Freedom Scale, and Amnesty International and Human Rights Watch both list a litany of continued human rights abuses in the country. It is difficult to say whether or not the ECCC brought justice to the Cambodian people as the impression of its failures and successes naturally differ person to person.

Another alternative to address atrocities in Myanmar could be something akin to Rwanda’s path to justice in which athree-level approach was taken: the International Criminal Tribunal for Rwanda (ICTR) was created to try those at the highest levels, the national court system was used for those involved with planning the genocide and other crimes, and local gacaca courts were created to help with the national system’s case overload as over 120,000 people had been detained. 

Over 12,000 gacaca courts were created only seven years after the genocide. These courts tried over 1.2 million cases, an incredible feat. However, the courts have been the subject of significant and warranted criticism: little due process guarantees, unfair trials, untrained judges, lack of effective defense, intimidation of witnesses, corruption, and more. Many people were afraid to participate for fear of being seen as accomplices in support of genocidal ideology or fear of further persecution for defending those wrongly accused. 

The Rwandan government refuted some criticisms of the courts by saying that guarantees for fair trials were notnecessary as those familiar with what happened, “would expose false testimony or judicial bias”. It is an interesting tactic to put the onus on the community, rather than those involved in the gacaca judicial process, yet this could have contributed to community members being afraid to participate. The fact that the trials happened so soon after the genocide when trauma and fear were still fresh, could also be a reason to have more time in between a traumatic event or conflict and the creation of courts. Witnesses and victims need time to process the trauma they experienced, but the amount of time needed differs from person to person. Waiting until potential witnesses feel safe would likely ease many fears about testifying. However, if too much time passes, the risk of perpetrators as well as victims, fleeing, becoming ill, or dying, becomes stronger. 

Other criticisms persist, as one genocide and rape survivor claimed, “[t]his is government-enforced reconciliation. […] The government pardoned the killers, not us.” The family member of someone falsely accused of genocide reflected that, “Gacaca has left Hutu and Tutsi even more divided than before.” In contrast, other survivors remarked that because of gacaca they “learned about what happened to their loved ones” and helped give their relatives proper burials.

Although an innovative approach, the gacaca courts were sadly marred by rampant issues. However, with lessons learned, states and communities have the opportunity to avoid repeating the drawbacks of the gacaca system. Since the entire country of Myanmar has been affected by conflict for the past 80 years, a local, de-centralized approach may be what is needed. Myanmar could follow in footsteps of others who developed a comprehensive approach to justice, by having the international courts (the ICC and ICJ cases), UJ cases, along with national and local courts, when the time comes. Such an approach is more likely to ensure that as many people have access to justice as possible.

Alternatively, a hybrid court headquartered in Myanmar could also give the people more ownership by having both national and international judges, like the ECCC. The downside is that only those at the top are likely to be held accountable due to resource constraints. A combined approach offers an opportunity to pursue both a hybrid court for the top command and a domestic tiered system, like the gacaca courts for lower level perpetrators, to ensure the trials to bring a wider pool of perpetrators to justice.

These alternative approaches reveal that justice is as much about recognition and voice as it is about prosecution. However, no single approach will be perfect. While communities continue to pursue accountability through multiple channels, the uneven global response to Myanmar’s crisis underscores a troubling reality. In the final post, we examine the double standards that shape international support for justice — contrasting Myanmar’s struggle with the world’s swift and unified reaction to Ukraine.