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MANILA, Philippines – Lodged before Philippine prosecutors Wednesday, October 25, was a complaint that may not immediately make sense: five natives of Myanmar sued their military junta for war crimes over the torching of their houses and killing of their families in the besieged Chin state.
It has nothing to do with the Philippines, but may have everything to do with the Philippines at the same time. The complainants, who have fled to different corners of the world mostly global north, are asking Philippine officials to assume universal jurisdiction over the alleged crimes committed 1,800 miles away from the capital.
Universal jurisdiction is a legal concept that obliges all nations to solve the gravest crimes on the planet, based on the rationale that we share the same equal duties to mankind.
But they are in for a steep ride: the Philippines’ International Humanitarian Law (IHL), enacted in 2009, does not explicitly say that the country assumes universal jurisdiction over war crimes, genocide, and other crimes against humanity. In fact, the three conditions of jurisdiction are that either the accused or victim is a Filipino, or the crime was committed on Philippine soil, which does not exist in this case.
“You have no avenue for any form of justice in the absence of any kind of rule of law, the military dictates everything, so naturally people look outside where some form of justice might be possible. Philippines being the closest country, also with the tradition of universal jurisdiction exercise, we might be able to find some kind of recourse here,” Salai Za Uk Ling, head of the Chin Human Rights Organization, told Rappler in an interview in Manila on Tuesday, October 24.
Tradition of universal jurisdiction
The tradition he referred to were pre-world war cases where the Philippines prosecuted Moro pirates living in Sulu and Japanese war criminals during the occupation – both cases having a connection to the Philippines.
Their lawyers, Filipinos Romel Bagares and Gilbert Andres who are known in the human rights scene, argued in their 160-page complaint that universal jurisdiction is customary international law. Simply put, customary international law refers to rules needed to preserve a global order and binds all states with or without a corresponding domestic law.
The Philippines mirrors a combination of civil law, which means a legal system based on written codes and statutes, and common law, or a system that takes the cue from court decisions. The lawyers argued that even without explicit text, Philippine officials can look to past decisions that recognize universal jurisdiction, such as the 2011 case Bayan Muna vs Romulo.
On the more technical side, the lawyers said that if one were to follow strictly what the IHL is saying, its provision on jurisdiction explicitly protects foreigners only from double jeopardy, when it’s accepted by all that even Filipinos have that protection. What this argument means simply is that “some laws were not flawlessly written..but this doesn’t mean you don’t have remedy, you just have to give a law an interpretation that’s right, that’s reasonable,” Bagares told Rappler.
It’s an example of a hard case, the complaint said, a legal situation where uncertainty in the language of laws allows for a more progressive reading.
‘They burned completely our life’
Chin is a predominantly Christian region that has seen escalating humanitarian crisis since its previous military regime. When the military coup ousted Aung San Suu Kyi in 2021, Chin took up arms and became a key resistance force.
“The soldiers come into the town, burn entire blocs of the town, and when people try to put out the fire, people were shot and killed,” Ling said.
It’s ethnic cleansing and religious persecution similar to what’s been suffered by the Muslim Rohingyans, said Ling, who added that those who remain on ground “don’t have enough to eat.”
“It has turned into a nightmare situation,” he said.
Human Rights Watch, which called the attacks the junta’s “campaign of terror,” has documented:
- 250 killings
- 1,100 arrests and detentions
- 1,800 houses burned
- 65 religious buildings destroyed
- 120,000 or 20% of the population displaced
Ngun Thawng Lian was monitoring the news from Melbourne when he saw a post on Facebook: a photo of a person who had been shot dead. He could not see the face, but wondered who among the people he knew in his hometown could have been killed. His nephew, Cung Biak Hum, was no longer answering his call.
Hum, a Christian pastor, was shot dead, his finger cut off, Lian later learned.
“He was determined to stay as much as possible. His grandfather, his father’s father, was one of the first settlers of the town, one of the first Christian ministers, he really loves his town,” Lian told Rappler.
According to a witness’ recollection shared with Lian, Hum was with a friend on their bicycles trying to put out fires in the middle of heavy shelling. When the first shots were fired, Hum fell off his bicycle unscathed and hid in nearby houses. But Hum decided not to escape and go back to town where he was eventually stopped by soldiers “and there he was shot two times in the chest, and they cut off his wedding ring finger,” said Lian.
Salai Tha Peng Ling Hrang, who also fled to Australia, remembers the night he escaped town “and carried what we can, with no transportation” because torching of the houses had begun September 18 of 2021. He would just see drone footage of his house burning down the next day.
“Since we ran out of town, we would hear every day, every week, every month, someone passes away. They lose everything. It’s been two-and-a-half years since we ran out, how many passed away, over a hundred already, they did not just burn our house, they burned completely our life,” Peng told Rappler.
‘I have a responsibility’
Salai Lai Lian, who has been studying in London, was in constant communication with his parents who also had to escape because of the escalating attacks. His childhood home was also burned down.
“My dad thought after two to three days they’d come back because this will not take many days, they did not take any clothes, blanket or food, they had nothing,” Lai told Rappler.
“My father is very old age, he needs medicine, but when they ran away from atrocity, they ran out of medicine, what they do is just waiting to die,” said Lai.
Bagares said that among Asian countries, the Philippines has the most hospitable legal environment to possibly accept something like this. A recent example, albeit from Africa, was Senegal trying and sentencing Chad leader Hissène Habré on the basis of universal jurisdiction.
But the Habré case was made possible by different movements, both political and judicial, key of which was the African Union supporting the creation and funding of a special court, then pushing Senegal to amend its law so they could clearly obtain universal jurisdiction.
The Philippines is a member of the Association of Southeast Asian Nations or ASEAN, a regional cooperating bloc that struggles with what to do with Myanmar’s membership given the junta’s almost-pariah status in the international community. President Ferdinand Marcos Jr said last year the country’s stance will be to keep the discussions going.
There are pending cases involving the plight of Myanmar Rohingyans both at the International Criminal Court and International Court of Justice (ICJ) in The Hague. Optics-wise, the Philippines as host country for a trial is an improvement from Western countries trying leaders from poor nations. But where the Philippines offers good optics, it cannot offer resources.
The judicial dockets are bogged down by lack of manpower, and the dispensation of justice proceeds at a constantly reviled slow pace. The country is so far unable to investigate its own grave crimes committed in Rodrigo Duterte’s drug war, at least according to the prosecutor of the International Criminal Court who is investigating the alleged crimes against humanity.
“Trainings are sustained for our judges, there’s a lot of openness to new ideas, to understanding international law. We learned many lessons from the Maguindanao massacre, and I think what happened there, the challenges we faced, the judiciary had many lessons,” said Bagares, referring to the massacre of 52 people in Maguindanao in 2009 that took 10 years to convict perpetrators.
The complainants said they look to the Filipino people for solidarity.
“I think I have a responsibility for my town that burned down. All of them are suffering, there’s a lot of other states suffering from this. We have a responsibility to speak out even though we are free, the world needs to hear us,” Lai said. – Rappler.com