JURIST’s Sarisha Harikrishna interviews Professor Dr. John D. Ciorciari, Dean of the Hamilton Lugar School at Indiana University Bloomington on the practical challenges of prosecuting genocide and war crimes in Asia.

While international courts have established legal frameworks for addressing mass atrocities, their application in Asia faces distinct obstacles shaped by regional politics and diplomatic relations.

The Asian context presents a critical test case for the global accountability project. Unlike in Europe, Africa, or the Americas, Asia lacks a regional human rights court or a cohesive intergovernmental body with a mandate to enforce international criminal law. This institutional gap, combined with a deeply entrenched commitment to state sovereignty and non-interference, creates a jurisdictional vacuum. The International Criminal Court (ICC) often finds its reach limited here, as key states are not parties to the Rome Statute and actively resist external judicial oversight, a resistance that stems from the complex interplay of post-colonial sovereignty norms and the prioritization of state stability over individual justice. Consequently, the region has become a laboratory for fragmented justice mechanisms, from the internationally-backed hybrid tribunal in Cambodia to domestic proceedings and non-judicial truth commissions.

These models reveal a central tension on how universal legal norms are adapted, and often diluted, when confronted with the uncompromising realities of Asian geopolitics. Professor Ciorciari’s research in international politics focuses on the Indo-Pacific region, where he has published different scholarly work, such as his 2010 book The Limits of Alignment, and his 2021 book The Courteous Power, in collaboration with Kiyoteru Tsutsui, which examines Japan’s approach in the region. His 2024 article on the politics of prosecuting genocide and war crimes in Asia, published in the Oxford Research Encyclopedia of Politics examines how major power competition and regional diplomatic norms create significant barriers to accountability in Asia.

JURIST: The legacy of the Tokyo Tribunal is often framed as “victor’s justice.” Some critics even describe it as “colonialist justice,” since Western powers prosecuted Asian aggression while maintaining their own imperial projects. In your view, does this history continue to shape perceptions of international criminal law in Asia today, and might it contribute to skepticism of tribunals as instruments of justice?

Professor John Ciorciari: Well, certainly back in the era in which the Tokyo Tribunal was occurring, many audiences around Asia were happy to see Japanese wartime leaders prosecuted for their atrocities in the region. But at the same time, as you are suggesting, many saw it as ironic, if not outright hypocritical, that some of the European or Western powers that were involved in setting up and managing the Tokyo trials and other trials around the Asia-Pacific region at the time were simultaneously in the process of trying to reestablish colonial rule in parts of East and Southeast and South Asia. Yes, at the time, there were many critiques that these tribunals were flawed and lacked legitimacy on the basis that only the Japanese were being tried and not the other participants in the hostilities.

Whether that continues to the present, I would say that contemporary history, especially younger Asian audiences, probably would not frame the problem as colonial and perhaps not even as imperial, but they would certainly still recognize the challenges of hypocrisy, double standards, and the principle of “victor’s justice” that you referenced. There certainly would be a skepticism around the region about Western-led international criminal processes taking place in Asian societies and possibly trampling on the sovereignty of the countries or the societies in question. And so, in brief, I think that, yes, there would be skepticism about international criminal justice to the extent that it was seen as primarily a Western project being directed at individuals or societies in other parts of the world, including Asia.

JURIST: Given this persistent skepticism, what alternative models of justice or accountability do you see as most viable in the Asian context? For instance, does the future lie more in hybrid tribunals like the Extraordinary Chambers in the Courts of Cambodia (ECCC) or in non-judicial transitional justice mechanisms like truth commissions?

Ciorciari: Generally speaking, and it’s not just in Asia, it’s true all around the world, that governments would much prefer to have control over these types of processes than to outsource them or to see even a hybrid mechanism in which they had to share authorship and control. All of these international criminal processes are subject to politics at some level, and most Asian governments would certainly prefer to handle authorship of maters of this sort through domestic mechanisms, if indeed trials occur at all. Mind you, one of the options on the table, in addition to the things that you mentioned, is the option of not carrying out a tribunal or a truth commission or illustration process, and instead just engaging in some form of political deal-making between those who are accused of atrocities and those who are not.

But to the extent that there would be a criminal prosecution or other formal transitional justice mechanisms in these societies, a truth commission is often as dangerous from the standpoint of incumbent leaders as a tribunal process could unearth a lot of information that would be damaging to the interests of those in power. And so, whether that’s carried out as a legalistic process or whether it is carried out as a broader sort of truth-seeking process, the key question for most Asian governments would be who controls it and what are the perceived political priorities of those who are in control of the process. For that reason, the hybrid models tend to be disfavored, at least in countries in which the incumbents believe that they can carry out the process themselves. There might be rare exceptions in which a government does not wish to be responsible for a transitional justice process and wants somebody else to take the political heat and responsibility for it, and they outsource it. But this is comparatively rare in the Asian context and so the model response in the region is likely to be either a non-response for transitional justice or a response that those holding political power believe they can control to suit their own interests.

JURIST: The principle of individual criminal responsibility is central to international criminal law, deliberately focusing on the actions of specific perpetrators. Could this legalistic approach risk obscuring the broader political, economic, and structural systems that enable mass atrocities, and have you observed any examples where this tension plays out?

Ciorciari: Absolutely, there’s no question that liberal legal norms of individual responsibility and a focus on the accused risks obscuring the broader societal and institutional factors that often shape the way in which mass atrocities play out. And that was true in the case of the Nuremberg trials. It’s the case if you look at the former Yugoslavia, Rwanda, Cambodia, Timor-Leste, Bangladesh and Sri Lanka. You name it, you name the example in which there’s been some sort of either a formal process or an effort to mount a process. And there are always questions about whether focusing on particular individual suspects would do more to shed light on or to obscure the dynamics that actually contributed to the human suffering in question. Now, these two things are not mutually exclusive.

So, for example, many people have quite rightly criticized the Tokyo trials or the Nuremberg trials in saying that these were efforts to effectively decapitate regimes that had lost the war and pin responsibility on the senior most officials in each case, and then allow lots of other people to get off without facing justice in the interest of reconstructing those governments as bulwarks against communist expansion. And this statement does carry some truth. There’s no question that lots of people who were very involved in the atrocities committed during the Second World War, either from Germany or from Japan, were not subject to formal accountability processes and went on to play significant roles in rebuilding those countries after the war and in leading those countries. Whether or not that was the right balance struck is a question that one can debate, but it unquestionably was part of the calculus of the victorious Western powers.

But they have very different results in the decades that followed in terms of the extent to which each government or each society engaged in a broader review of the history of the roles of co-perpetrators, of bystanders, of enablers, of institutions, of the society itself in bringing about the atrocities. Germany is usually looked at as an example of a country that, at least in the 1960s, 1970s and the 1980s, did quite a good job of opening up history textbooks, of having a relatively broad societal conversation about what it is that made Nazi atrocities possible. But that’s an outlier in most countries that have experienced this type of atrocity. The government and civil society organizations are not as active in detailing the full range of factors that contributed to the atrocities in question. When that happens, then a focus on individual accountability can, in fact, give it a misleading impression of what really happened in the case in question. I think it is imperative if one does have a formal understanding of the accountability process, that alongside that there also be processes to engage with a fuller history of the period and to make sure that the population learns about that history and understands the role of complicity, of bystanders, of bureaucratic institutions, of international factors, of political economy, of other dynamics that fed into the atrocities.

JURIST: In several Asian societies, victims often prioritize social and ritual reconciliation over formal prosecution. When tribunals are imposed, could this Western, retributive model disrupt local processes of repair, and how might tribunals better engage with indigenous approaches to justice?

Ciorciari: It is a very good question, as you suggest. The legalistic approach that prevails in Western societies and in international criminal justice do not always match up with the way in which particular localities deal with abuses of this kind. There are times when international formal legal processes can be connected to local systems. The best example I can think of are the Gacaca courts in Rwanda (domestic tribunals adapted to properly enable it to provide transitional justice following the 1994 Rwandan genocide) in which local village level accountability processes were formally and informally connected to the process at the International Criminal Tribunal for Rwanda such that the international high-level political processes were also accompanied by robust engagement at very local levels. I used the word political to describe the former, not just legal, because inevitably, again, these things involve legal elements and they also involve political elements. And it is very important that just as law functions at different levels, that different political constituencies be engaged in these transitional justice processes, as you are suggesting.

There are other examples in which there has been no formal accompaniment to an international criminal proceeding, but there nevertheless have been lots of informal or non-state complements. Cambodia is a good example. There were many, many village dialogues, truth-telling exercises, school visits by NGOs, group of survivors brought together by civil society organizations, sometimes with officials from the UN-backed Khmer Rouge tribunal present, sometimes without them. But over the years of the UN-backed tribunal’s operation in Cambodia, civil society organizations developed a wide array of projects that helped to connect local norms, practices, priorities to the UN-backed process in Phnom Penh. And that was very important to a lot of survivors. That was probably more impactful that what was happening in the capital city with respect to a small number of defendants whom they did not know and had never seen. What was most meaningful in some cases was the ability to engage in practices that were more familiar. And again, I do not think these things are mutually exclusive. They are often pitted against one another as if they are alternatives.

But in Cambodia, the vast majority of the public when surveyed said again and again that they supported the UN-backed and Cambodian government-backed process in Phnom Penh. They also very much wanted to have local complements to that process. And so, one should not expect a trial of a few leaders of a deposed regime to satisfy all of these social needs. But one also wouldn’t expect all of these village-level processes to deliver everything that Cambodia needed to deal with the legacy of Khmer Rouge atrocities. You need some of both and they were not mutually exclusive from one another. So just as I said, you can have a formal legalistic process and you can also have a broader historical narrative. You can also have a formal legalistic process and then have more traditional or indigenous or local processes that go alongside it. There may be cases in which they conflict, but in many cases they do not because they are generally oriented towards similar objectives of wanting to allow people to heal, of wanting to allow people to know more about what happened to their loved ones who disappeared, and for wanting to have some kind of acknowledgment and reassurance that this type of thing will not happen again.

JURIST: Mass crimes often fracture a community’s sense of time and memory, while judicial processes require a linear, evidence-based reconstruction of events. How can tribunals meaningfully engage with the non-linear experiential ways that communities remember and process atrocities, without imposing a foreign narrative on a broken history?

Ciorciari: This is a very important question and I will break it down into two elements in my response. One element is the element of the overall narrative. As you are suggesting, societies and communities may remember such events and memorialize suffering in ways that do not align neatly with the way in which the narrative is told at a criminal court. And this relates to your earlier point about the possible disconnect between an individually focused set of prosecutions versus a societal set of causes and effects of mass atrocities. So that is one part. And the second part is, individual survivors and how they engage in a process meaningfully when their own experience of trauma might not fit neatly or what they need as survivors of trauma might not fit neatly with the courtroom criminal process. So, if we look at the first one, the first part of it is about narrative.

It is true that traumatic memory tends to get recorded in certain ways at the societal level and that it is memorialized often with a relationship to local cultural norms, belief practices that might not fit the neat, linear causal structure that predominates in formal criminal processes. This is a challenge insofar as a formal legal process, to be fair to those accused, has to follow some form of causation that is demonstrated by the evidence. It also has to take into account exculpatory evidence. Sometimes communities that have suffered trauma do not wish to have inscribed in their memory of the conflict that they too had abuses committed on their side of the conflict, for example. And so, what would be extremely important to enter into evidence in a fair criminal trial might not align neatly with the community’s recollection of those events. That is a fundamental challenge because what human beings may wish for, or in some cases even need, for their communal rehabilitation and reconstruction may differ from the necessities of a fair criminal process.

There is no easy way out of that except to have mutual intelligibility between the two. That is to say, we don’t contend that a legal process is the only narrative that accurately describes events. Again, back to your earlier point, it is only one important lens through which to view mass atrocities or episodes thereof is through the lens of individual responsibility in a legal process. Similarly, one would not look at the community’s recollection of a traumatic experience and say that this is the only accurate way of looking at it. It is another important lens and we have to be clear about the fact that each of those has certain strengths, fills certain societal and human needs, but also has certain limitations. The second piece of the question is about individual experiences, people who suffered from trauma, and whether a courtroom process is actually the right way to help them regain their sense of identity, of strength, of security, of reconciliation. And oftentimes the answer is no.

If you imagine having somebody who was the victim of traumatic harm, there are very few places I can imagine that would be harder for that person to feel safe and secure than to walk into a courtroom where there are judges staring at them, where they are being cross-examined, where the person who’s accused of harming them may be sitting just a few meters away. And so, appearing in a courtroom is far from the ideal kind of venue in which a trauma victim would feel safe and would necessarily avoid re-traumatization and would feel re-empowerment and so forth. There are mechanisms, of course, that courts have tried to put in place to protect trauma survivors from being re-traumatized, such as putting up screens or having people do closed video testimony and so forth. There are some ways of trying to diminish those risks, but inevitably to get the kind of evidence that is needed against specific accused perpetrators, one does need the testimony of those who suffered trauma and that is going to be a difficult process.

Courts have begun to equip themselves with some staff who have psychological training, who could be there before and after the hearings to provide support, that’s important. There are also, of course, other venues outside of the courtroom in which survivors can express themselves in ways that might be more comfortable, might be less threatening. And there are some cases in which survivors charge forward into the courtroom and say, this is exactly the forum in which I want to speak my mind and feel very much re-empowered. The point is that it cannot be guaranteed that this is a good way to deal with the individual experiences of trauma survivors. It’s also sometimes the case that trauma induces problems in memory and ability to recall facts accurately and so forth. The opposing counsel and the defense lawyers have to challenge that. I imagine they do not generally want to have to pick apart the testimony of someone who is a survivor of trauma, but it is part of the role of a zealous advocate to have to find the gaps and possible logical inconsistencies of any witness against the defense.

That presents a challenge, again, that that trauma may actually impede an individual from being able to provide the type of testimony that would be of maximal use in a criminal prosecution and may also contribute to a re-traumatizing experience under cross-examination. So, what can be done about that? The question for a courtroom proceeding is that a lot of procedural elements can be put into place in order to mitigate some of the risks and perhaps to maximize some of the value, but it cannot be eliminated. It is a difficult part of any transitional justice process that some people who feel very uncomfortable speaking or who are unable to remember will be put in a position where they will be asked to share their narratives. They can opt not to, but if they go down this route, there may be less evidence available to be brought to bear against the defense. And so, there are some trade-offs. Again, one of the best things that can be done is to create an envelope of interventions and engagements beyond the courtroom that help to prepare the individuals in question for the most favorable possible experience and help to address their needs after any courtroom experience so that on balance, the experience is both conducive to justice and also helps them to experience a sense of re-empowerment and restoration.