This lesson discusses the importance of the ICC to Asia and some of its challenges.

A. ICC and Asia

The people of Asia have witnessed many grave crimes in the course of history, including genocide, crimes against humanity and war crimes. These atrocities have taken millions of lives, while thousands of others are still suffering the trauma of these crimes; the massacres in Cambodia, the forced disappearances in Sri Lanka, the genocide in Gujarat, India. There was no effective international mechanism to prevent such crimes from occurring or to grant redress to the victims. In fact, even today, impunity remains a major obstacle for the redress of these crimes; not a single person responsible for the crimes in Cambodia, Sri Lanka or Gujarat, India has been prosecuted or punished in accordance with international law.

Such rampant impunity has meant that many Asian countries continue to be plagued with grave crimes, particularly those countries faced with military and civil conflict, including Kashmir, Sri Lanka, Indonesia and the Philippines. The key reasons for the impunity are weak domestic legal systems, as well as a lack of political will to hold the perpetrators--many of whom are senior state officers--accountable.

The ICC can help to reduce this impunity in two significant ways. Firstly, those responsible for grave human rights abuses, particularly heads of state and other senior officials, will no longer be able to use their own weak domestic systems as a shield to protect them from criminal liability. Secondly, the nature of the ICC involves the strengthening of domestic institutions. In this way,

…[T]he ICC can also give rise to more consensual forms of governance. Citizens and states may cooperate in new and more invigorating ways when both are aware of the limits to the use of power. What is defined by international law and implemented by an international court can have a powerful effect on the internal management of a nation. In particular, the possibility that internal jurisprudence may be developed in keeping with international law is now more likely than before [Basil Fernando, 'The International Criminal Court and its effect on Asia', article 2, vol. 2, no.1, p 7, February 2003].

As mentioned earlier, the ICC complements the local jurisdiction, it does not take precedence. In other words, the local jurisdiction is given priority consideration. Ratifying the ICC will therefore lead to the strengthening of national legislation and institutions relating to human rights. Many Asian countries at present have ineffective laws and mechanisms to deal with human rights violations. A clear indicator of this is that while police torture is endemic in almost all Asian countries, it constitutes a crime in only two places: Sri Lanka and Hong Kong. Similarly, causing forced disappearances is also not a crime in most Asian countries, resulting in the absence of any legal provisions to deal with this gross abuse of basic human rights.

Under the Rome Statute however, systematic and widespread torture and disappearance amount to crimes against humanity. Therefore, in enacting domestic legislation to correspond with the Statute provisions, widespread torture and disappearances need to be defined as crimes, with provisions for their punishment and compensation. However, domestic legislation will necessarily evolve to include individual acts of torture and disappearance as well, thereby strengthening the domestic criminal justice system.

Another role to be played by the ICC in Asia relates to the fact that the Court is a legal, not political body. By its very nature then, the ICC excludes power politics, in contrast to political institutions such as the United Nations. The ICC will allow international issues of concern to be subject to judicial scrutiny, not merely political pressure. As Basil Fernando notes,

"Equality before international law", is a less commonly heard expression than simply "equality before the law", meaning equality within local jurisdictions. In fact, in Asia the overwhelming assumption is that there is no equality in international law. That assumption arises because international law has developed in favour of the historic colonial powers and worked against the interests of 'non-western' countries. However, since the Second World War the emergence of the United Nations has fuelled a counter-assumption, that equality before international law is not only possible but can in fact be the only basis for international relations.

The Non-Aligned Movement--which brought together countries from Asia, Africa and the Arab world during the mid-twentieth century--was intended as a united voice of disparate nations pursuing interests that did not correspond to those of the superpowers. After initial enthusiasm, however, it died away. Similar alliances have emerged from time to time. Presently, there is a growing movement to address global disparities of wealth as a matter of international justice…

However, without the possibility that international norms and standards may be upheld on a judicial basis, rather than on a political basis, the realization of equality before international law is an ideal that can be treated sceptically. While the ideal is yet to be realized, with the International Criminal Court (ICC) becoming a reality, using the Rome Statute as its basic law, the global debate on equality before international law has taken a giant step forward. This will have tremendously important consequences on thinking about both international and domestic law in Asia.

For the historically 'weaker continents', the emergence of the International [Criminal] Court is much more important even than the emergence of the United Nations, though they are interrelated. The reason is that the United Nations is basically a political institution, which constantly gives rise to political game-playing, where the more powerful have advantage over the less powerful. The effect of the ICC is substantially different, as being a judicial institution, by its very nature it will exclude power politics. Therefore, international equality is no longer based purely on political considerations. International issues that had previously been subject only to political pressure may now become subject to judicial scrutiny. That a juridical element has entered into the equation opens new opportunities for the 'weaker' parties of the United Nations system [Basil Fernando, 'The International Criminal Court and its effect on Asia', pp. 5-6].  

Current status of ICC ratifications in Asia

Despite the active participation of many Asian and Pacific governments at the Rome Conference, meetings of the Preparatory Commission and Assembly of States Parties, as well as current representation at the ICC by Judges Sang-Hyun Song of the Republic of Korea and Tuiroma Neroni Slade from Samoa, the Asian region remains significantly underrepresented at the ICC. To date, only 11 countries, including Australia, Afghanistan, Cambodia, Fiji, Marshall Islands, Mongolia, Nauru, New Zealand, the Republic of Korea, Samoa and East Timor have become state parties to the ICC. Although the Solomon Islands, Thailand and the Philippines have signed the Rome Statute, they have yet to ratify it.

Amongst those countries having ratified the Rome Statute, the relevant corresponding legislation has been enacted in Australia and New Zealand, while significant progress towards this has been made in Mongolia, East Timor, the Republic of Korea and Samoa. In many of these cases, partner civil society groups have worked closely with governments through roundtables and discussions, commenting on and enriching the draft legislation.

B. Efforts by the United States of America to undermine the ICC

American President Bill Clinton signed the Rome Statute on 31 December 2000, the last day it was open for signature. Shortly after George Bush took over the presidency however, and just before the 1 July 2002 entry into force of the Rome Statute, Bush "nullified" the Clinton signature on 6 May 2002. Since then, the United States has launched a multifaceted campaign against the ICC, claiming that the Court may initiate politically motivated prosecutions against US nationals.

A key part of its campaign has been the conclusion of Bilateral Immunity Agreements (BIAs) with countries around the world, purportedly based on article 98 of the Rome Statute, excluding its citizens and military personnel from the jurisdiction of the Court. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including contractors) and nationals. These agreements, which in some cases are reciprocal, do not include an obligation by the United States to subject those persons to investigation and/or prosecution.
In Asia, these agreements have been made with 16 countries, including four countries party to the ICC; Afghanistan, Cambodia, East Timor and Mongolia. (See http://www.iccnow.org/documents/CICCFS_BIAstatusCurrent.pdf for details).

Many legal experts and scholars have concluded that these bilateral agreements are in fact contrary to international law and the Rome Statute. Furthermore, there is a common misperception that these agreements exclude countries from becoming parties to the ICC; this is not correct, and all concerned groups and individuals should continue to pressure their governments to join the ICC, regardless of whether or not they have any other agreements.

Another facet of the United States' campaign has been the adoption of two pieces of legislation known as the American Service Members' Protection Act (ASPA) and the Nethercutt Amendment. The ASPA, passed by Congress in August 2002, contains provisions restricting US cooperation with the ICC, making US support of peacekeeping missions largely contingent on achieving impunity for all US personnel and even granting the President permission to use "any means necessary" to free US citizens and allies from ICC custody. The Nethercutt Amendment, signed into law in December 2004, cuts aid from the Economic Support Fund to all countries which have ratified the ICC treaty but have not signed a BIA.

C. Role of NGOs

A pivotal role in the establishment of the ICC was played by NGOs. Many important features of the Rome Statute, especially in relation to the participation and compensation of victims would not have come about without their contribution.

Initially, a small group of NGOs decided to work together and coordinate their efforts to support the establishment of an ICC in 1995. Since then, the Coalition for the ICC (CICC)--simultaneously a global network, coalition and campaign--has grown to include more than 2,000 member organizations from all regions, representing a vast array of interests and expertise. These groups came together in their support for a fair, effective and independent ICC and made a significant contribution at all stages of the process. They also played an important role in expediting the ratifications to the Rome Statute. Additionally, NGOs have also assisted state delegations to resolve important--legal and technical--issues during the numerous sessions of preparatory and other commissions.

At a national level, these groups have worked hard in developing domestic legislation corresponding to the Statute provisions, as well as educating the public on these provisions. While there has been marked success in these aspects in certain countries, considerable work remains in the campaign for universal ratification and effective implementation of the Rome Statute. While every region of the world is represented amongst ratifying countries, further support is needed from key regions including Asia and the Middle East.

In accordance with article 15 of the Statute, NGOs may send communications to the Chief Prosecutor regarding crimes to be investigated by the Court. This is another role that all concerned NGOs should take seriously.

Questions For Discussion

1. Are there any national campaigns in your country to pressure the government to ratify the Rome Statute if it has not already done so? Briefly discuss the strengths and weaknesses of such campaigns.
2. In your opinion, what would be the greatest benefit of becoming party to the ICC?
3. Discuss the ideas of 'equality before international law' and universality.