More countries than ever before are using domestic laws to prosecute perpetrators of atrocity crimes committed outside of their borders under the principle of universal jurisdiction – including as a result of the war in Ukraine. Increasingly, corporations are being brought to trial under this principle, presenting a path towards accountability for crimes committed overseas by large international players who continue to act with relative impunity.

A precedent for corporate accountability was created at the end of the Second World War, when a number of large companies in industries such as steel, weapons and chemicals were charged with complicity in atrocity crimes for supporting the Nazi war effort. Their cases were heard at the Nuremberg trials in 1945–46. Another notable case took place in 2005, when Dutch chemical tradesman Frans van Anraat was convicted for complicity in war crimes for selling a chemical essential for the creation of mustard gas to former Iraqi President Saddam Hussein. The gas was used against the Kurds and killed thousands.

An important development in the successful prosecution of such crimes has been the establishment of specialised prosecutors and units in 26 countries so far, according to the Clooney Foundation for Justice. ‘The existence of specialised war crimes units with the expertise to investigate and prosecute international crimes contributes to the viability of international criminal cases in countries such as France, Germany, Sweden and others that have in recent years actively prosecuted crimes on the basis of universal jurisdiction’, says Balouziyeh.

More countries have begun to accept cases under universal jurisdiction – including a number of eastern European countries, following Russia’s invasion of Ukraine – which is creating the potential for overlap, duplication and the re-traumatisation of victims, according to TRIAL International. Pavani Nagaraja Bhat, Investigations Associate at human rights organisation Fortify Rights, says that when it comes to universal jurisdiction cases, ‘there is a real risk of overlap and that’s why it’s important that all of us coordinate with each other to ensure that we’re not speaking to the same people over and over again and having them testify the same thing in other courts. The risk of re-traumatisation is real.’

To coordinate – including between the International Criminal Court and the US – and facilitate the cases filed in various jurisdictions concerning Ukraine, a joint investigation team has been set up by Eurojust, the EU Agency for Criminal Justice Cooperation.

At the beginning of 2023, US President Joe Biden signed into law the Justice for Victims of War Crimes Act, opening the door in the US to investigations of war crimes committed overseas, even in cases where neither the accused nor the victims are US citizens. Whether this marks a change in response to cases brought against the US or its citizens remains to be seen.

Belgium and Spain have previously amended their universal jurisdiction legislation following international pressure, including from the US. In 2003, the US threatened to move NATO headquarters out of Brussels after victims turned to Belgian courts for accountability for crimes allegedly committed during the Iraq War. Now, only cases involving Belgian residents or long-term residents as victims or suspects can be brought before its courts. Universal jurisdiction proceedings remain susceptible to political interference, says Angela Mudukuti, an international criminal law and human rights lawyer. ‘The damage has been done in those jurisdictions [Belgium and Spain]. It sets a dangerous precedent. Reconsidering bringing a case is different from losing one’, says Mudukuti.

There are other challenges when it comes to seeking justice in countries far away from where crimes are perpetrated. ‘The obstacles are mainly linked to the geographical and cultural distance between the prosecuting state and the victims and survivors. Witnesses and survivors’ security is also an issue’, says Giulia Soldan, Program Manager, International Investigations and Litigation, at TRIAL International.

The International Criminal Tribunal for Rwanda, held in Tanzania, and the trial of the former President of Chad, Hissène Habré, which took place in Senegal, had their challenges but could serve as examples of how proceedings conducted in a somewhat similar cultural context and slightly closer to home benefit victims, says Mudukuti.

The less-than-ideal pursuit of justice far away from home should, however, not deter victims from seeking accountability altogether, according to Priya Pillai, Head of the Asia Justice Coalition secretariat. ‘There is a need for the exercise of universal jurisdiction “closer to home” and a need to explore in greater depth the potential options in Asia and other regions. But we must also not miss opportunities for justice and accountability only on the basis that these are located far from the region’, she says.

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When Cyclone Mocha hit Myanmar’s western Rakhine state in May, tens of thousands of Rohingya facing tight movement restrictions under the country’s junta had no place to run.

Official numbers are hard to come by, but deaths and large-scale destruction have been reported. According to the military junta, over 100 Rohingya lost their lives. Aid access has been blocked by the military since, leaving displaced people exposed to the elements and without access to clean water, food or healthcare as the monsoon season is about to start.

Aid agencies had been in conversations with Myanmar's government to gain access to the areas affected by the cyclone in Rakhine State but, on 12 June, all humanitarian access was suspended. ‘This denial of access unnecessarily prolongs the suffering of those without food to eat or a roof over their head. It increases the risk of food insecurity and water-borne disease,’ UN Resident and Humanitarian Coordinator a.i (ad interim) Ramanathan Balakrishnan said.

A UN report has identified Myanmar as one of 18 ‘hunger hotspots’ in 2023, classifying the food situation in the country as one of ‘very high concern’. It states that ‘many townships and displacement sites in northern Rakhine have lost substantial food stocks and livelihoods’ during the storm.

The up to 250 km/h winds also caused devastation in other areas in the Myanmar’s North-west, where communities had already been affected by increased conflict since the coup. Plans for distribution and transportation to parts of that area – Chin State – also remain pending, according to the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA).

An investigation into the generals‘ alleged crimes against the Rohingya is in progress at the International Criminal Court and The Gambia filed a case at the International Court of Justice (ICJ) alleging that Myanmar’s persecution of the Rohingya violates the Genocide Convention. Aung San Suu Kyi – at that time as the country’s de facto leader in the position of state counsellor – travelled to the Hague to defend the country against these allegations.

The deprivation of aid could also be a crime under international law, says Steven Kay KC, a member of the IBA War Crimes Committee Advisory Board. ‘Such conduct could come within other inhumane acts Article 7.1.a as defined by the Rome statute, if all the elements of the offence were proven,’ says Kay.

Prior to the cyclone, early in 2023, Myanmar’s military had announced plans to hold an election in an attempt to legitimise its position in the country. The generals since introduced a new law which required political parties to reregister by March or be disbanded. A large number of parties, including Aung San Suu Kyi’s National League for Democracy (NLD), refused. ‘Considering it won 79 per cent and 82 per cent of the elected seats in the last two general elections, the NLD’s participation ‘is a fundamental requirement for credible polls in Myanmar,’ according to the International Crisis Group, a non-governmental organisation.

The Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, has said that the military junta ‘can make no claim to democratic legitimacy’. Instead, he calls on countries to recognise the National Unity Government (NUG) – the shadow government formed following the coup - as the legitimate representatives of the people of Myanmar.

Under the military, there is little hope for the Rohingya in the camps that they’ll ever be able to return to their homes. Under the guise of closing the camps, the military is building permanent structures – replacing the temporary ones that were supposed to be there for two years only – near the current sites to house them, according to Human Rights Watch.

Also, the hundreds of thousands of Rohingya who fled to Bangladesh following the military’s brutal and deadly campaign in 2017 are at risk of being returned to Myanmar. The Bangladesh government aims to return over 1100 refugees initially, who would be housed in newly built villages that they would not be allowed to leave. While often described as voluntary, threats of arrests for non-cooperation have been reported.

‘The freedom of the Rohingya is very much bound up in the freedom of Myanmar. Junta officials are trying to carry out their problematic ‘camp closure’ process in the Rakhine camps, entrenching segregation and denying Rohingya the right to return home. All of this only makes the prospect of safe returns for Rohingya refugees in Bangladesh even more distant,’ says Bauchner.

Image credit: Waste collected in and around Rohingya Refugee camps in Teknaf, Bangladesh. Moinak /AdobeStock.com