The author of this blog is Chhavi Jain, a law student at National Law University, Jodhpur, India.
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| Asia in World Map |
Introduction
The International Criminal Court is one of the most important international legal institutions. The Hague-based independent judicial body was established to prosecute individuals for serious crimes that deeply affect the international community, such as genocide, war crimes, crimes against humanity (“CAH”) and acts of aggression. It operates as a court of last resort, stepping in when national judicial systems are unwilling or unable to prosecute these grave offences.
The Statute of the International Criminal Court ("Rome Statute") was adopted on 17 July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, in a non-recorded vote of 120 States in favour, 7 against, and 21 abstaining. 123 countries have ratified the Rome Statute.[1]
Asia has exhibited a poor record of ratifying international treaties. Only twelve of the 48 Asian nations are state parties, making Asia the sub-region with the lowest level of engagement with the ICC. These are Afghanistan, Bangladesh, Cambodia, Cyprus, Japan, Jordan, Maldives, Mongolia, the Republic of Korea, the State of Palestine, Tajikistan and Timor-Leste. It is evident that the coverage of the Rome Statute in terms of the Asian population shows a worse picture.
The Asian States have been wary of the international treaty regime. They have shown a similar attitude by being consistently slow to form regional institutions. This resistance is paradoxical since Asia is the most populous and economically dynamic and it would benefit the most from the security and economic dividends provided by international law.
Asian States’ wariness specifically towards the ICC could be justified by the perceived threat to Asian values and principles. In the backdrop of Asia’s colonial past, we see the primacy of state sovereignty, territorial integrity and non-interference in internal matters. Moreover, Western and Asian countries have always differed in their perceptions of human rights. While Western legal scholars believe that human rights are natural to man and an antecedent to political society, Asian values consider the national, historical, cultural and religious peculiarities and lay emphasis on the community over the individual. The concerns of Asia partially reflect the historical suspicion of a perceived Western-imposed international system that is rooted in Asia’s colonial legacies and their fraught experience with the post-Second World War international criminal justice.
This blog article delves deeper into the concerns raised by the Asian States and presents a case for the Asian states to accept the Rome Statute.
Asian Objections at the Rome Conference
Asian States actively participated at the Rome Conference and endorsed the idea of the ICC in principle, but criticised its final form. They feared that it would be politicised to interfere in domestic matters. Thus, their common position was that the ICC should be based on principles of complementarity, State sovereignty, and non-interference in States’ internal affairs.
Non-consensual jurisdictional triggers under the Court’s inherent jurisdiction.
Jurisdiction which is not based on State consent and imposes obligations on non-States Parties violates the basic principles of international law, state sovereignty and the Vienna Convention on the Law of Treaties. Many ASEAN States, including India, believed that jurisdiction should be based exclusively on state consent on a case-to-case basis. They advocated for an ‘opt-in-opt-out’ provision under which a State could opt into ICC jurisdiction for a specified period and a specified set of crimes.
Proprio motu power of the Office of the Prosecutor
The proprio motu power of the Office of the Prosecutor to initiate investigations under Article 15 elicited sovereignty-based objections from countries like China and India. Article 15 read with Article 12 allows the Court to exercise its jurisdiction even in countries which are not parties to the Statute. Moreover, the office of the prosecutor is of a political nature, and this opened up possibilities for politically motivated interference in the State’s internal affairs.
Referral power of the UNSC
The UN Security Council (“UNSC”) was given referral power. It is already viewed as politicised as the Permanent Five hold a veto power and can use it for vested interests. In this context, India argued that the UNSC triggering ICC jurisdiction is a violation of sovereign equality and equality before the law. A matter which is unanimously decided to be referred to the ICC can be vetoed by any of the P5 members. Thus, the UNSC’s power to refer cases will be ineffective where any of the P5 members has allegedly committed a crime.
Statute’s complementarity provisions
Article 17 states that a case will be inadmissible where the State has been unwilling or unable to genuinely carry out an investigation or prosecution. “Unable genuinely” is vague and several Asian States fear that it will leave them constantly trying to prove the viability of their justice system against the standard of what the ICC perceives as justice.
ICC’s Jurisdiction and interpretation of crimes.
There were concerns over the Statute’s understanding of war crimes and CAH. China contended that the Statute went beyond the prevailing customary international law understanding of CAH, which limited its scope to armed conflicts, and turned the ICC into a human rights court rather than one focused on the most serious international crimes. India further advocated for the inclusion of terrorism and first-use nuclear weapons as crimes within the Court’s jurisdiction.
Asia, Human Rights and the ICC.
Over the years there has been judicialization of international criminal law, and international courts have become central with States being equally influential as creators of these judicial bodies. Even Indian delegates have affirmed that the ICC is here to stay and its relevance in humanitarian law is likely to increase.
The ICC was created to have a permanent criminal court with a wider territorial and subject-matter jurisdiction. Despite the cultural distinctiveness, the core values underlying international criminal justice are common in Asia as in the rest of the world. Thus, scepticism and regionalism only undermine human rights in Asia. Asia’s history is marred by instances of genocide and war crimes, thus, the decision of many Asian countries to not ratify the Roman Statue is a missed opportunity.
One of the most significant contemporary humanitarian crises in Asia is the atrocities on the Rohingya Muslim minorities by the Myanmar Military crackdown. Gambia filed a case in the International Court of Justice in 2019. It was alleged that Myanmar’s atrocities on the Rohingya minority in Rakhine State violated the Genocide Convention. This issue has also been under the preliminary examination and investigation at the ICC since 2018. The then ICC Prosecutor, Fatou Bensouda requested for a pre-trial chamber for authorisation to start investigation. The investigation was allowed after considering the requests from scores of alleged victims and on the existence of a reasonable basis to believe that Myanmar had deported the Rohingyas and persecuted them based on ethnicity and religion. When compared to the Russia - Ukraine War, the ICC’s response to the Rohingya case has been lukewarm and its efforts futile. Even after years of the ongoing ‘humanitarian catastrophe’, the Rohingyas lack support from the ICC.
Under Article 58 of the ICC Statute arrest warrants are issued when there are reasonable grounds to believe that the person has committed the alleged crime and arrest is necessary to prevent the obstruction of proceedings or the continuation of the crime. The UN Fact-Finding Mission concluded that the Myanmar military has committed war crimes and crimes against humanity, and an Independent Investigation Mechanism has collected potential evidence. Yet, no warrants have been issued. This highlights the selectivity of global justice when seen in the light of the strong message sent to the Russian government to stop the Ukraine War when the ICC issued arrest warrants against Russian President, Vladimir Putin.
Only a month after the attacks in Ukraine, the ICC prosecutor announced an ICC investigation into the alleged crimes by Russia and later issued a clear warning against the crimes in Ukraine. This has been much faster than the ICC proceedings about Bangladesh and Myanmar, where no public statements or warnings have been forthcoming. This is particularly concerning since such ICC actions have geo-political significance, they have a deterrent impact and they show support for the country, both political and economic.
The Way Forward
The difference in the Rohingya picture is due to many reasons. The international support and Ukraine’s cooperation with the ICC have been absent in the case of Rohingyas. However, this difference reinforces the misconceptions surrounding the ICC’s jurisdictional powers and procedures and the fear of a West-driven institution. The ICC track record does not dispel accusations of a Western bias. This is the precise reason why it is pivotal for Asia to be a part of the deliberations at the ICC. Active participation will enable Asia to shape the narrative in an inclusive manner with a culturally nuanced understanding of justice. Once more States become active participants, Asia can also put up a collective stand in the form of public statements and make their presence known to the world. International legal development will be highly West-influenced if Asia continues to observe from the sidelines.
Many times perpetrators of human rights violations escape prosecution or are held accountable after a very long time. Such ineffectiveness in the system due to the longstanding culture of impunity and blanket amnesty is likely to reduce once more Asian States ratify. Alongside ratifying, States must also implement the Rome Statute. Non-implementation undermines the judicial activities of the ICC. Implementation includes both, substantive complementarity and procedural cooperation. Asian States will immensely benefit by embracing the global justice movement and engaging with the ICC.
REFERENCES
1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3647469
2. https://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf
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