Missed opportunities in the judicialisation of international criminal law? Asian states in the emergence and spread of the Rome Statute system to punish atrocity crimes

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Date	01 December 2017
Published date	01 December 2017
DOI	10.1177/0924051917737911
Author	Heejin Kim
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Article

Missed opportunities in the

judicialisation of

international criminal law?

Asian states in the emergence

and spread of the Rome

Statute system to punish

atrocity crimes

Heejin Kim

Centre for International Law, National University of Singapore, Singapore

LLM, JSD, Yale Law School, New Haven, CT, USA

Abstract

The expansion of the Rome Statute system is a clear indication of the judicialisation of international

law, a normative trend that has accelerated in the past few decades. However, the current state of

judicialisation cannot be regarded as ‘‘a linear story of success.’’ According to a critical analysis of

Asian States’ overall engagement with the Rome Statute process, the International Criminal Court

(ICC)-centered judicialisation has been stagnant in Asia. The author seeks to examine why Asian

representation and participation in the ICC system have been consistently and significantly lower

than in any other region. Just as the recent shift in Africa’s engagement with the ICC has attracted

much scholarly attention for (re)assessing the relationship between African States and the Court,

Asia’s continued silence in this field of law must also be raised as an important issue. This paper

finds three types of common experiences shared by the overwhelming majority of Asian countries.

It investigates ways in which the presence of one or a combination of these common contexts have

affected Asian States’ ability and willingness to participate in the Rome Statute system.

Keywords

unevenness in the judicialisation of international law, International Criminal Court (ICC), Rome

Statute ratification and domestic implementation in Asia, atrocity crimes

Corresponding author:

Heejin Kim, ASEAN Postdoctoral Fellow, Centre for International Law, National University of Singapore, Singapore

259776, LLM, JSD, Yale Law School, New Haven CT 06511, USA.

E-mail: heejin.kim@nus.edu.sg

Netherlands Quarterly of Human Rights

2017, Vol. 35(4) 246–271

ªThe Author(s) 2017

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1. Introduction

Created with the adoption of the Rome Statute,

the International Criminal Court (ICC) has

been celebrated as the first permanent judicial institution in international criminal law. As of

2017, 124 States have joined the ICC to establish effective accountability for the most egre-

gious forms of violence. The expansion of the Rome Statute system is a clear indication of the

judicialisation of international law, a process through which States and other relevant entities

create, develop, and use treaty-based judicial bodies to resolve disputes addressing various

matters of public policy.

In the shadow of tension with African State leaders, the year 2016

seemed to be the most difficult time throughout the Court’s history. Three African States

Parties sought to trigger an official process to withdraw from the Statute.

At the 2017 African

Union (AU) summit, the AU finally adopted a non-binding resolution to support a collective

withdrawal from the ICC, despite vocal opposition to such a strategy. The growing continental

grievance is disappointing as African stakeholders played a key role in advocating for the ICC

during the Rome negotiations and in the early years of the Court’s operation.

Among Asian

ICC Parties, the Philippines may become the next one to join this pullout attempt as President

Rodrigo Duterte argued in his speech.

Equally disappointingly, since the Rome negotiations

in the 1990s, China, India, and Indonesia – some of the most populated countries in the world –

have remained negative about joining the ICC and accepting it as a central instrument of

accountability for atrocity crimes.

In Asia, longstanding reluctance and rejection are key words in describing this region’s

general attitude towards the ICC. To date, as this paper argues, Asian representation and par-

ticipation in the Rome Statute system has been consistently and significantly lower than in any

1. Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90.

2. See Section 3.1 for more discussion about the meaning of judicialisation, and how it has unfolded in the area of

international criminal law and practice.

3. Such decisions by Burundi, Gambia, and South Africa generated concerns about a possible mass departure from the ICC.

However, many other African governments and civil society groups have criticized those attempts to undermine the

Rome Statute system and issued statements to reaffirm their continued support. Most recently, in February 2017,

Gambia announced its decision to rejoin the Court.

4. Regarding initially cooperative but increasingly difficult relationship between Africa and the ICC, see ‘Africa and the

ICC: an Introduction’ in Kamari M Clarke, Abel S Knottnerus and Eefie de Volder (eds), Africa and the ICC: Per-

ceptions of Justice (CUP 2016) 2-3; Judge Sanji Mmasenono Monageng, ‘Africa and the International Criminal Court:

Then and Now’ in Gerhard Werle, Lovell Fernandez and Moritz Vormbaum (eds), Africa and the International Criminal

Court (TMC Asser Press 2014) 14-15.

5. ‘Philippines may withdraw from the International Criminal Court, says President Rodrigo Duterte’ Independent (17

November 2016)

withdraw-from-the-international-criminal-court-a7422076.html> accessed 16 August 2017.

6. The Chinese government has not changed its serious reservations about the prosecutorial proprio motu power of the

Office of the Prosecutor and the ICC’s (potential) exercise of compulsory jurisdiction. With regard to the scope of the

ICC jurisdiction, China has also emphasized that acts committed during internal armed conflicts should not be subject to

international courts. Jing Guan, ‘The ICC’s jurisdiction over War Crimes in Internal Armed Conflicts: An Insur-

mountable Obstacle for China’s Accession?’ (2010) 28 Penn State Intl Rev 703, 735-744, 749-753; Bing Bing Jia,

‘China and the International Criminal Court: Current Situation’ (2006) 10 Singapore Ybk Intl L 1, 2-6. See for other

major in Asia critics and their continued rejection, Usha Ramanathan, ‘India and the ICC’ (2005) 3 JICJ 627, 628, 632-

633; Rishav Banerjee, ‘Rome Statute and India: an Analysis of India’s Attitude towards the International Criminal

Court’ (2011) 4 Journal of East Asia and International Law 457, 458-459; Salla Hikuri, ‘Empty Promises: Indonesia’s

non-Ratification of the Rome Statute of the International Criminal Court’ (2017) 30 The Pacific Rev 74, 75-92.

Kim 247

other region. Just as the recent shift in Africa’s engagement with the ICC has attracted much

scholarly attention for (re)assessing the relationship between two sides, Asia’s continued silence

in this field of law must also be raised as an important issue. This paper therefore seeks to

examine why most Asian States have not been centrally involved in the ICC-centered judicia-

lisation. What can be done to motivate Asian governments to participate more meaningfully in

the Rome Statute system?

The structure of this paper is as follows. Section 2 establishes a general understanding of the

meaning of Asia as a region, for the limited purpose of this research. Section 3 gives a broader

picture of the judicialisation of international criminal law, and then examines Asia’s actual

engagement with the ICC by analyzing the Rome Statute ratification patterns and practices of

domestic implementation in the region. Section 4 aims to provide some possible reasons for the

longstanding reluctance about joining the ICC. Exploring the decades of post-conflict and post-

colonial periods in Asia, as well as the ICC’s formative years, Section 4 finds three types of

common contexts shared by the overwhelming majority of Asia n countries. This section also

tackles on a question of why, despite the Asian and African regions having similar aspects with

respect to these three contexts, there is a marked difference between two regions in their respective

representation and participation in the Rome Statute system. Finally, Section 5 offers some con-

cluding remarks.

2. Asia as a ‘‘region’’

The analytical scope of this paper does not permit full elaboration of the definition of Asia.

Nevertheless, it is necessary to establish a general understanding of what is meant by Asia or

Asia-Pacific. The concept of Asia as a region was originally developed as an externally

imposed, Eurocentric notion. Pursuant to the geographical understanding of the Greeks in

the early classical era, the continental boundary between Europe and Asia was delineated for

the first time.

The Asian continent was considered to cover present-day Turkish territory and

a vast area of land beyond this point. Asia’s continental scope was largely solidified well

before international law became a prevailing inter-state legal order with the spread of West-

phalian tradition originated from the continental Europe. As one scholar succinctly states,

‘what we witness today is essentially the globalisation of Greek geographic categories’.

The

externally imposed understanding of Asia haslongbeenusedasamethodofframingthe

region in international law.

More recently, other factors became equally influential in shaping the concept of Asia.

Social scientists from different disciplinary backgrounds have examined factors that are

crucial to differentiate one region from others. Most commentators recognise geographical

location (or proximity) as one of the key factors. In conceptualising the region, while some

scholars focus more on historical, cultural, and economic attributes, others argue that the

concept is primarily built around how different actors perceive and interpret the idea of

7. Martin W Lewis and Karen E Wigen, The Myth of Continents, A Critique of Metageography (University of California

Press 1997) 21.

8. Teemu Ruskola, ‘Where is Asia? When is Asia? Theorizing Comparative Law and International Law’ (2011) 44 UC

Davis L Rev 879, 882.

248 Netherlands Quarterly of Human Rights 35(4)

region.

In the international law context, among other things, Asian countries have pushed

forward the idea of Asia as a distinct community. Their political leaders have used this notion

to address common political, economic, and social agendas.

The internally developed notion

of Asia has been strategically advanced within the region. The development of the Associ-

ation of Southeast Asian Nations (ASEAN) framework provides one of the examples. ASEAN

was founded by Indonesia, Malaysia, the Philippines, Singapore, and Thailand in 1967. Its

membership was extended to Brunei Darussalam, Cambodia, Laos, Myanmar, and Vietnam

during the 1980s and 1990s. Under the names of ASEAN Observers, ASEAN Plus Three, and

ASEAN Regional Forum, a range of other countries in the eastern, central, western, and

southern parts of Asia have gathered to regulate common concerns in the areas as diverse

as regional trade, investment, security, human rights, and environmental protection. Here the

Asian identity is broadly shared by countries with varying historical, cultural, religious, and

linguistic backgrounds.

As discussed, the notion of Asia originated from the externally imposed concept. This way

of grouping has a continuing impact, and is similarly followed in the practices of intergovern-

mental and nongovernmental organisations including the ICC. However, Asian States have

their own contributions to the development of the notion of Asia and the Asian identity in

contemporary international law and relations. In this sense, despite the controversy over the

accuracy and justifiability of defining Asia in the way it has been conceptualised,

one cannot

simply dismiss the fact that the current categorisation of Asia has a ‘durable aspect’.

international criminal law, there are several approaches to regional grouping, as employed by

the ICC, and the leading NGOs such as the Coalition for the International Criminal Court

(CICC) and the Parliamentarians for Global Action (PGA).

The ICC scheme seems to be the

most broadly used one in scholarly works and policy papers of intergovernmental agencies.

Having five regional groups in perspective, the ICC’s categorisation is identical to that of the

9. See generally Rick Fawn, ‘‘Regions’ and their Study: Wherefrom, What for and Whereto?’ (2009) 35 Review of

International Studies 5, 17; ‘Introduction’ in Bjorn Hettne, Andras Inotai and Osvaldo Sunkel (eds), Comparing

Regionalisms: Implications for Global Development (Palgrave Macmillan 2001) xxviii; Andrew Hurrell, ‘Regionalism

in Theoretical Perspective’ in Louise Fawacett and Andrew Hurrell (eds), Regionalism in World Politics (OUP 1995)

38; Arnoud Lagendijk, ‘The Accident of Region: a Strategic Relational Perspective on the Construction of the Region’s

Significance’ (2007) 41 Regional Studies 1193; Joseph Nye, International Regionalism (Little, Brown and Company

1968) vii; Fredrik So¨derbaum, ‘Introduction: Theories of New Regionalism’ in Timothy Shaw and F So¨derbaum (eds),

Theories of New Regionalism (Palgrave Macmillan 2003) 1-21.

10. For a more analysis of the growing economic, political, legal integration and cooperation in Asia, see Tom Ginsburg,

‘Eastphalia and Asian Regionalism’ (2011) 44 UC Davis L Rev 859.

11. Amitav Acharya, ‘Ideas, Identity, and Institution-building: from the ASEAN way to the Asia-Pacific way?’ (1997) 10

The Pacific Rev 319, 334; Ruskola (n 8) 885-887.

12. For more examination on the meaning and usage of the term ‘‘Asia’’,see Amitav Acharya, ‘Asia is not One’ (2010) 69

The Journal of Asian Studies 1001; Arif Dirlik, ‘The Asia-Pacific Idea: Reality and Representation in the Invention of a

Regional Structure’ in Arif Dirlik (ed), What Is in a Rim? Critical Perspectives on the Pacific Region Idea (2nd edn,

Rowman & Littlefield Publishers 1998) 15-36; Lewis and Wigen (n 7) 16-17; Derek McDougall, Asia Pacific in World

Politics (2nd edn, Lynne Rienner Publishers 2016) 6; Ruskola (n 8).

13. Acharya (n 12) 1001-1002.

14. CICC, ‘2013 Status of the Rome Statute Around the World’ (August 2014) 4-6 (file with the author); PGA, ‘PGA

Parliamentary Campaign for the Universality and Effectiveness of the Rome Statute of the ICC’

tion.org/fr/campaigns/icc/> accessed 16 August 2017.

Kim 249

UN’s Regional Groups of Member States.

According to this understanding, the Asian region

consists of 54 countries.

3. Unevenness in the judicialisation of international law - On how the

Rome Statute system has (not) worked in Asia

Considering the remarkable increase in the creation and use of international courts within the last

few decades, some may conclude that the judicialisation of international law constitutes a universal

trend. However, the current state of judicialisation cannot be regarded as ‘a linear story of suc-

cesses’.

Instead, a great degree of regional and topical unevenness can be found in the judicia-

lisation of international law.

Asian States’ relatively weak engagement in international criminal

law is an indication of both regional and topical unevenness found in the ongoing process of

judicialising international legal system.

3.1 Judicialising international criminal law and the role of state actors in the

judicialisation

The growing involvement of judicial bodies in the political realm has prompted scholars to reflect

on the meaning of judicialisation. According to Hirschl, it is an ‘umbrella-like’ term consisting of

three interrelated processes: (i) the spread of judicial terminology and methodologies into the

political system; (ii) expansion in the role of courts in making decisions on public policy; and

(iii) the increased use of courts to resolve political controversies.

In international legal scholar-

ship, Romano defines judicialisation as ‘increasing creation and use of international judicial

institutions’.

In Stone Sweet’s analysis, judicialisation refers to the ‘process’ through which

courts and tribunals develop authority and power over the ‘institutional evolution’ of the treaty

15. The ICC scheme identifies five groups: African, Asia-Pacific, Eastern European, Latin American and the Caribbean

States, and Western European and Other States. See eg ‘Report of the Bureau on the Plan of Action for Achieving

Universality and Full Implementation of the Rome Statute of the International Criminal Court’ (28 November 2014)

ICC-ASP/13/36 (‘‘2014 Plan of Action Report’’);‘Report of the Committee on Budget and Finance on the Work of its

twenty-sixth Session’ (12 July 2016) ICC-ASP/15/5, 24-33, 46-47. The Department for General Assembly and Con-

ference Management categorizes UN Member States with five groups in a same way. See

DGACM/RegionalGroups.shtml> accessed 16 August 2017.

16. In Asia, China, Japan, Mongolia, North and South Korea, and five countries of the former Soviet Union are located in

the Northern part. The sub-regions of Southeast Asia and Pacific nations include ten ASEAN states, Cook Islands, Fiji,

Kiribati, Maldives, Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Sri Lanka, Timor-

Leste, Tonga, Tuvalu, and Vanuatu. Countries as far west as India, Pakistan, and Nepal are also categorized under this

region. Countries like Afghanistan, Iran, Lebanon, and Jordan are grouped in Asian states, yet both the CICC and the

PGA list them as belonging to ‘‘Middle East and North Africa’’ region.

17. Cesare Romano, ‘Trial and Error in International Judicialization’ in Cesare Romano, Karen Alter and Yuval Shany

(eds), The Oxford Handbook of International Adjudication (OUP 2014) 112.

18. Benedict Kingsbury, ‘International Courts: Uneven Judicialization in Global Order’ in James Crawford and Martti

Koskenniemi (eds), Cambridge Companion to International Law (CUP 2012) 211-212; Cesare Romano, ‘The Shadow

Zones of International Judicialization’ in Cesare Romano, Karen Alter and Yuval Shany (eds), The Oxford Handbook

of International Adjudication (OUP 2014) 91.

19. Ran Hirschl, ‘The Judicialization of Politics’ in Gregory Caldeira, R Daniel Kelemen and Keith E Whittington (eds),

The Oxford Handbook of Law and Politics (OUP 2008) 121-124.

20. Romano (n 17) 111.

250 Netherlands Quarterly of Human Rights 35(4)

system.

Alter uses the same term to describe a political reality in which judicial a ctors are

increasingly involved in deciding what international ag reements mean.

Many commentators

seem to be in a broad agreement as to what judicialisation means. First, judicialisation requires

a significant transfer of decision-making power to the hands of adjudicative bodies. Second, as a

consequence of judicialisation, law adjudicators gain the authority to decide what the law means in

the specific context of disputes involving a range of legal problems. Third, judicialisation is a

dynamic process through which multiple actors of the legal system work towards the creation and

development of judicial institutions.

For the purpose of the current research, the author understands the judicialisation of interna-

tional law as a process through which States and other involved entities create, develop, and use

treaty-based judicial bodies in order to resolve international disputes addressing various matters of

public policy. Judicialisation of international criminal law can be defined as a multi-layered

process of developing and using international courts to investigate, prosecute, and punish individ-

uals responsible for the commission of specific atrocity crimes. With the judicialisation, interna-

tional courts emerge as central actors in international criminal law. States are equally influential as

they are creators of these judicial bodies, and their continued support for the courts is critical for

the progression of judicialisation.

The initial proposalto establish an internationalcriminal tribunal was made in 1872with a view to

punishing violations of the 1864 Geneva Convention for the Amelioration of the Condition of the

Wounded in Armies in the Field.

From the perspective of concerned policymakers and commen-

tators, it was unreasonable to leave accountability issues at the complete discretion of belligerent

nations. However,until the mid-1940s, no international judicial institution was establishedto address

individual criminal accountability for atrocity crimes.

The postwar tribunals of Nuremberg and

Tokyo were thefirst generation of internationalcriminal courts. Subsequently after the conclusion of

these military tribunals, States made efforts not just to codify international criminal law with con-

sideration of the priortrial experiences, but also to establisha standing judicial institutionthat could

adjudicate war crimes and other atrocities.

However, during the subsequent Cold War decades,

attempts to institutionalise international criminal prosecution were mired in the ‘Years of Silence’

because of the ‘animosity’ and ‘distrust’ that dominated inter-state relations.

The agenda of creating an international criminal court reemerged in the late 1980s.

In the mid-

1990s, under the UN Security Council’s Chapter VII power, two ad hoc tribunals were established

21. Alec Stone Sweet, ‘Judicialization and the Construction of Governance’ (1999) 32 Comparative Political Studies 147,

164.

22. Karen Alter, ‘Judicialization of International Relations’ in Bertrand Badie, Dirk Berg-Schlosser and Leonardo Morlino

(eds), International Encyclopedia of Political Science, Vol. 1 (Sage Publications 2011) 1379.

23. Christopher K Hall, ‘The First Proposal for a Permanent International Criminal Court’ (1998) 322 Intl Rev of the Red

Cross 57.

24. Steven R Ratner, Jason Abrams and James Bischoff, Accountability for Human Rights Atrocities in International Law

(3 rd edn, OUP 2009) 230.

25. M Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (CUP 2011)

171-177.

26. M Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-Five Years: the Need to Establish a Permanent Inter-

national Criminal Court’ (1997) 10 Harv HRJ 11, 38.

27. Antonio Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International

Humanitarian Law’ (1998) 9 EJIL 2, 7.

28. Mahnoush H Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 AJIL 22, 22-23.

Kim 251

as a multilateral response to the acute crisis in the Balkans, and to the Rwandan Genocide.

Cambodia, East Timor, Lebanon, Kosovo and Sierra Leone, the ‘hybrid’ model of prosecution was

adopted to punish atrocity crimes committed in those areas.

In parallel, to create a permanent

criminal court having wider territorial and subject-matter jurisdiction, the Diplomatic Conference

of Plenipotentiaries of an International Criminal Court was convened in Rome. At the end of

negotiation in July 1998, States agreed to create the ICC by the vast majority vote of 120 to 7, with

21 abstentions. By ratifying the Rome Statute, States accept ICC jurisdiction with respect to core

crimes stipulated in Article 5 (i.e. genocide, crimes against humanity, and war crimes, to date).

As a principle, in situations where the alleged perpetrator is a national of a State Party, or where the

crimes were allegedly committed in the territory of a State Party, the ICC may exercise its

jurisdiction if the States with primary jurisdiction are unable or unwilling to genuinely investigate

and adjudicate those crimes.

A non-party State may file a declaration accepting ICC jurisdiction

under Article 12(2). Irrespective of the foregoing conditions, pursuant to Article 13, the UN

Security Council may refer a situation to the ICC Prosecutor. Under the ICC, States are introduced

to an international process of individual criminal accountability that can profoundly change the

ways in which they deal with perpetrators of mass atrocities.

3.2. The Asian region’s engagement with the Rome Statute system

This sub-section evaluates the role of Asian countries in the emergence and spread of the ICC-

centered judicialisation. Asia as the ‘most underrepresented region’ and Asian ‘under-participa-

tion’ have been typical descriptions of this region’s engagement in the Rome Statute system.

Within the circle of the ICC and the Assembly of States Parties (ASP), Asian States’ passive

attitude towards ratification and implementation has also been noted as a critical concern for the

29. Respectively, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal

Tribunal for Rwanda (ICTR).

30. The hybrid, mixed, or internationalized criminal tribunals blends national and international laws, procedures, and per-

sonnel. The Extraordinary Chambers in the Courts of Cambodia (ECCC),the Special Panels for Serious Crimes in the

DistrictCourt of Dili (SPSC),the Special Tribunalfor Lebanon (STL), the‘‘Regulation64’’ Panelsin the Courts of Kosovo,

andthe Special Court for SierraLeone (SCSL) are generallyrecognized as hybrid tribunals.Regarding basicfeatures of the

courtsof this kind, see Sarah Williams, Hybrid and Internationalised CriminalTribunals (Hart Publishing2012) 187-201.

31. To activate the ICC’s latent jurisdiction over the crime of aggression listed in Art 5, States Parties adopted the

amendments at the 2010 Review Conference of the Rome Statute held in Kampala, Uganda. For these amendments to

enter into force, they must be ratified by at least 30 states, and then approved by a vote of two-thirds at the ASP. As of

May 2017, 34 States Parties have ratified the Kampala amendments on the crime of aggression, and during the past

ASP meetings, dozens of States made concrete commitments to ratify the amendments. The voting for activation of the

Court’s jurisdiction over the crime of aggression will take place in December 2017.

32. See Rome Statute, Arts 12, 13, 17.

33. It is worth noting that the prosecutorial model of international justice risks becoming ‘‘a kind of panacea.’’ Regarding

some limitations of international criminal accountability as a means of human rights protection, particularly from the

perspective of domestic stakeholders, see James J Silk, ‘International Criminal Justice and the Protection of Human

Rights: the Rule of Law or the Hubris of Law?’ (2014) 39 The Yale J Intl L Online 94, 100, 102-110.

34. Simon Chesterman, ‘International Criminal Law with Asian Characteristics?’ (2014)27 Columbia Journal of Asian Law 1029,

1030; Mark Findlay, ‘Sign Up or Sign Off – Asia’s Reluctant Engagement with the International Criminal Court’ (2014) 1

Cambodia Law & Policy Journal 75, 7 7-78; Steven Freeland, ‘International Criminal Justice in Asia-Pacific Region: the Role

of the International Criminal Court Treaty Regime’ (2013) 11 JICJ 1029, 1030; Sarah Williams and Andrew Byrnes,‘Justice

for All? Ten Years of the International Criminal Court in the Asia-Pacific Region’ (2013) 11 JICJ 10 23, 1024.

252 Netherlands Quarterly of Human Rights 35(4)

future development of the Court.

The following sections substantiate as well as update such

findings of previous studies

3.2.1. Regional representation ‘at the ICC’. At the conclusion of the Rome Conference, China cast a

negative vote against the Statute. India, Singapore, and Sri Lanka explained their reasons for

abstention during the post-voting session. In the early years of the ICC, regional representation

of Asia was extremely low compared with that of other regional groups. In 2002, Asia was the most

underrepresented region, having only eight parties (of 76 parties in total). The number of ICC

ratifications reached three digits for the first time in October 2005. Asia was, however, still the

least represented region, with only 12 States having ratified the Rome Statute up to this point. Even

Japan had not acceded to the Statute until 2007. Only in the 2010s, Southeast Asian countries such

as Bangladesh and the Philippines joined the Court. In comparison, ICC ratification in the African

group showed a more promising growth during the first several years of the Court. At the end of

2005, Africa became the one with the largest regional constituency. Currently, the Asian region has

19 parties of 124 parties in total,

and is the second-smallest group among the five regional groups

in the ICC. By merely taking into account the conventional way of assessing regional represen-

tation, the Eastern European group might seem to be the most underrepresented region, having the

smallest number of States Parties (18 parties).

3.2.2. Region-wide commitment to the ICC ‘within Asia’. When analyzing the ratification patterns in

Asia, existing studies merely focus on how Asia, in comparison with other regional groups, is

represented ‘at the ICC’.

However, the ratification analysis can also be associated with evaluat-

ing the extent to which the Rome Statute system is accepted as a tool of accountability and conflict

resolution ‘within Asia’. The proportional rate of ICC Parties within a particular regional group

can be a helpful indicator in this regard. This rate is obtained by taking the number of States Parties

located in the region and dividing it by the total number of countries contained in the same region.

A higher rate could indicate greater regional commitment to using this judicial process with regard

to punishing certain international crimes.

Table 1. Rome Statute Ratification and Region-wide Commitment to the ICC.

(Total number

of countries in

the region)

Asian States

(54)

African

States (55)

Eastern European

States (23)

Latin American

States (33)

Western European and

Other States (29)

Dec 2002 14% (8/54) 31% (17/55) 52% (12/23) 45% (15/33) 82% (24/29)

Dec 2005 22% (12/54) 49% (27/55) 65% (15/23) 64% (21/33) 86% (25/29)

Dec 2016 35% (19/54) 62% (34/55) 78% (18/23) 85% (28/33) 86% (25/29)

35. Sang-Hyun Song, ‘From Punishment to Prevention: Reflections on the Future of International Criminal Justice’ (14

February 2012) Wallace Wurth Memorial Lecture, University of New South Wales, 10; 2014 Plan of Action Report (n

15) paras 21-24, 41.

36. The following countries are Asia-Pacific states parties to the ICC: Afghanistan, Bangladesh, Cambodia, Cook Islands,

Cyprus, Fiji, Japan, Jordan, Maldives, Marshall Islands, Mongolia, Nauru, Palestine, the Philippines, Republic of

Korea, Samoa, Tajikistan, Timor-Leste, and Vanuatu.

37. Chesterman (n 34) 1030; Findlay (n 34) 77-78; Freeland (n 34) 1030; Song (n 35) 10; Williams and Byrnes (n 34) 1024.

Kim 253

At the Court’s inception, region-wide enthusiasm for the ICC was minimal in Asia: 14 percent

of countries in the region (8 out of 54) ratified the Rome Statute. Despite a gradual increase in the

number of ratifications, the Asian group has consistently shown the lowest rate of region-wide

commitment to accept and use the ICC process. To date, only 35 percent of countries in the region

(19 out of 54) have joined the Court. The current situation is disappointing considering that the

same level was already achieve d by the African States group in 2002. The total numbers of

countries in the Asian and African groups are almost identical, but the number of ICC Parties in

Africa (34 out of 54) is nearly twice that of Asia.

3.2.3. Domestic implementation of the Rome Statute in Asia. Domestic implementation is another

factor of consideration in evaluating States’ commitment to the ICC-centered judicialisation.

The importance of implementation is most evident in the principle of complementarity

enshrined in the Statute: national courts of States Parties have the primary responsibility to

punish Rome Statute crimes.

For the effective adjudication of those crimes, ICC Parties

need to incorporate Rome Statute substantive offences and certain procedural rules into their

national criminal laws.

The main components of implementation are legal regimes of substantive complementarity

and procedural cooperation. The former is a set of substantive r ules of criminal law in line with

their Rome Statute equivalents. States need to enable their national courts to exercise jurisdiction

over the crimes stipulated in the Statute. Other legal principles to be codified include but are not

limited to the principle of command responsibility,

the abolition of superior orders as a

defense,

and the non-application of the statute of limitations to the Rome Statute crimes.

The latter requires States to adopt rules and procedures to facilitate cooperation with the ICC.

Without effective cooperation from the relevant national authorities, the ICC alone cannot

execute warrants for arresting suspects, secure critical evidentiary materials, conduct searches

and seizures on the sites where the alleged crimes have been committed, or protect and relocate

its witnesses, among other things.

This paper identifies three modes of implementation practices. In the first type, States enact a

separate legislation designed to incorporate the Rome Statute into their national legal orders. This

model appears in the practices of Japan,

the Philippines,

the Republic of Korea,

and Samoa

Except for the Philippines,

these countries legislated special laws covering both sides of domes-

tic implementation, giving full effects to their obligations under the Statute. Regarding the second

type, Bangladesh, Cambodia, and Fiji have opted to amend existing criminal law, partially

38. Rome Statute, Art 1. See also William Burke-White, ‘Proactive Complementarity: the International Criminal Court and

National Courts in the Rome System of International Justice’ (2008) 49 Harv Intl L J 53, 57-58; William A Schabas,

The International Criminal Court: a Commentary on the Rome Statute (OUP 2010) 50-53.

39. Rome Statute, Art 28.

40. ibid Art 33.

41. ibid Art 29.

42. ibid Art 88.

43. Act on Co-operation with the International Criminal Court, Act No 37 (11 May 2007).

44. Republic Act No 9851 (11 December 2009).

45. Act on the Punishment of the Crimes within the Jurisdiction of the International Criminal Court, Act No 8717 (21

December 2007).

46. International Criminal Court Act 2007, No 26 (9 November 2007).

47. Republic Act No 9851 covers only the components of substantive complementarity.

254 Netherlands Quarterly of Human Rights 35(4)

implementing substantive rules of the Statute.

All core crimes and several Rome Statute legal

principles are incorporated into their revised criminal laws. However, the wording of the amended

or newly added provisions considerably differs from the corresponding Rome Statute language.

For example, under Fiji’s criminal law, war crimes are not defined with the same degree of detail

and precision as the two other core crimes. The category of war crimes is also deliberately omitted

in the provision eliminating the superior orders defense.

Consequently, with regard to the com-

mission of war crimes, obedience to superior orders may be permitted as a defense per se at the

national courts of Fiji. The principle of command responsibility finds no expression in both

Cambodia and Fiji. Finally, in the third type of implementation, States have neither enacted

implementing legislations nor amended national criminal law to be compatible with the Statute.

Domestic implementation is in a stalemate situation in most Asian Parties (such as Afghanistan,

Cook Islands, Maldives, Marshall Islands,Mongolia, Nauru, Tajikistan,and Vanuatu),

which have

not made sufficient administrative and legislative efforts to incorporate theRome process. As in the

second model, all States in this group have not yet fulfilled the cooperation component of comple-

mentarity. Their laws do not specify competent national authorities to receive the cooperation

requests or to arrest the suspects and transfer them to the designated locations under the Court’s

arrangement. It is unclear how they will work with the ICC in its investigation and prosecution of

crimes that were committed in their territories, and which fall within the Court’s jurisdiction.

Despite their treaty obligations, the vast majority of Asian Parties have not taken necessary

implementation measures at national level. This can potentially undermine the effectiveness of

ICC’s judicial activities. Moreover, the significant incompatibility between national laws of State

Parties and the Statute means that the ICC process may not have been properly known to the

domestic audience in these countries.

4. Some possible explanations for longstanding reluctance towards

and rejection of the Rome Statute system

Section 4 identifies three types of common experiences shared by the overwhelming majority of

Asian countries. Exploring the decades of post-conflict and post-colonial period in Asia as well as

the ICC’s formative years, this section investigates ways in which these three contexts have

affected many Asian States’ ability and willingness to be part of the Rome Statute system.

48. Relevant provisions in their national criminal laws that were amended and added for the purpose of implementation

are: Arts 3-5 of the International Crimes (Tribunals) Act (1973) (Act No XIX of 1973) enacted on 20 July 1973 (revised

in 2009); Criminal Code of the Kingdom of Cambodia (30 November 2009) Arts 32, 183-185, 188-190, 193-196;

Crimes Decree 2009 (5 November 2009) (Republic of Fiji Islands) Part 12 (‘‘Offences Against the International

Order’’).

49. Crimes Decree 2009 (Fiji), Section 98 states: The fact that genocide or a crime against humanity has been committed

by a person pursuant to an order of a Government or of a superior (whether military or civilian) does not relieve the

person of criminal responsibility. (Emphasis added)

50. In some cases, ministerial committees were set up to develop a draft of ICC implementing legislation (Afghanistan) or a

draft of amendments (Mongolia). However, the finished draft has not been submitted before the legislature or higher

administrative bodies for further actions. Afghanistan Watch, ‘ICC in Afghanistan: a Report on the Consultative

Meeting on Obligations of Afghanistan under ICC’ (24 October 2009) 5-6; Amnesty International, ‘Comments and

Recommendations on the Draft Criminal Code of Mongolia’ (May 2009) 5.

Kim 255

4.1. Asian understanding of sovereignty and the emphasis on the non-interference

principle across Asia

4.1.1. Various domestic situations involving political and military crises. The first common cont ext

developed against the backdrop of the recurring political and military crises that occurred during

this period. First, the nationhood-consolidation process in Asia was painstaking and significantly

delayed.

With the exception of a few countries, Asian States were under colonial rule at different

points in time during the nineteenth and twentieth centuries.

China and Thailand were not

formally colonised, but were subject to the extraterritorial jurisdiction of the Western States for

many decades during this period.

Asian States strived to achieve independence, but only a small

number of them succeeded in doing so in the immediate postwar years. Most Pacific States gained

independence decades after the Second World War as in Samoa (1962), Fiji (1970), Papua New

Guinea (1975), Solomon Islands (1978), Tuvalu (1978), and Vanuatu (1980); in the Southeast,

Singapore, Bangladesh and Timor-Leste became indepen dent respectively in 1965, 1971, and

2002; all Central Asian countries reemerged from the collapse of the Soviet Union in the early

1990s. Moreover, in the liberation efforts to expel foreign powers, tension between myriad stake-

holders often erupted into conflicts. For example, in Bangladesh, almost three million people were

killed and thousands of women were raped during the 1971 Liberation War.

Indonesia fiercely

fought for independence against Dutch and Japanese colonial rule.

Approximately two-thirds of

the population of East Timor died during the Indonesian occupation, within two decades.

Most

dramatically, in 1999, following the release of the referendum result in favor of East Timor’s full

independence, Indonesian security forces and the Timorese militias participated in arson, killings,

and other violence in East Timor.

Second, many parts of Asia were ravaged by intra-state and inter-state conflicts, directly

associated with prolonged e thnic and/or religious struggles in the region.

As the impact of

conflicts can spill over borders easily, conflicts are effectively a bilateral and/or regional issue.

The security conditions facing the Indochina region were devastating. In Cambodia, the Khmer

Rouge regime was overthrown by Vietnam’s military intervention in the late 1970s. With foreign

support, the Khmer Rouge continued fighting a guerrilla war against the newly established gov-

ernment for another decade. During the final months of Sri Lanka’s prolonged civil war, thousands

of civilians were killed and forcibly displaced as a result of the military barrage conducted by both

51. Steven Roger Fischer, A History of the Pacific Islands (Palgrave 2002) 239-261; Gregory Gleason, ‘Independence and

Decolonization in Central Asia’ (1997) 21 Asian Perspective 223; Sankaran Krishna, Postcolonial Insecurities: India,

Sri Lanka and the Question of Nationhood (University of Minnesota Press 1999) 31-58; Anthony John Stockwell,

‘Southeast Asia in War and Peace: the End of European Colonial Empires’ in Nicholas Tarling (ed), The Cambridge

History of Southeast Asia Volume II (CUP 2004) 13-51.

52. There is ‘a shared experience of colonialism’ in the minds of Asian people. M Sornarajah, ‘The Asian Perspective to

International Law in the Age of Globalization’ (2001) 5 Singapore J Intl and Comp L 284, 284.

53. ibid 284-285.

54. Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’

(2010) 21 Crim L Forum 191, 192-195.

55. Noelle Higgins, Regulating the Use of Force in Wars of National Liberation – the Need for a New Regime. A Study of

the South Moluccas and Aceh (Martinus Nijhoff 2010) 160-165, 194-197, 217-221.

56. John Dunn, ‘Genocide in East Timor’ in Samuel Totten and Williams S Parsons (eds), Century of Genocide: Critical

Essays and Eyewitness Accounts (4th edn, Routledge 2012) 287.

57. ‘Introduction’ in Edward Aspinall, Robin Jeffrey and Anthony Regan (eds), Diminishing Conflicts in Asia and the

Pacific. Why Some Subside and Others Don’t (Routledge 2013) 6; McDougall (n 12) 22.

256 Netherlands Quarterly of Human Rights 35(4)

the government of Sri Lanka and the Liberation Tigers of Tamil Eelam.

Intense ethno-political

tension in many Pacific States, such as Papua New Guinea

and Solomon Islands,

culminated in

a series of decade-long internal conflicts during the 1990s and early 2000s. Moving upwards to

Central Asia, in Tajikistan, intense civil wars between groups of militia representing different

sub-regions and religions within the country took place from 1992 to 1997.

It was alleged that

Uzbekistan, by supporting the opposition, played a key role in the escalation of internal conflicts in

Tajikistan. Kyrgyzstan also experienced multiple ethnic conflicts after independence.

Under the military governments, political elites often resorted to violent measures to resolve

political and social disagreements within their nations, and civilian persecution was prevalent.

Fiji went through a repeated cycle of military coups and constitutional crisis after independence.

In Cambodia, an estimated 1.7 million to 3 million people, representing more than 20 percent of its

pre-conflict population, were executed or starved to death, or died from torture under the oppres-

sive Khmer Rouge reign in the 1970s.

In the Philippines, the 21-year dictatorial rule of Marcos

ended only in 1986. An estimated 70,000 people were arbitrarily imprisoned, disappeared, or

killed under his rule.

Until its transition to parliamentary democracy in 1987, South Korea was

under a military dictatorship for three decades. It is well documented that torture, killings, and

other types of brutality were systematically committed against millions of Korean civilians by

state agents.

4.1.2. The Asian vision of national sovereignty and the non-interference principle. During the recurring

political and military crises explored above, Asian States constantly had to defend their regime

legitimacy and territorial integrity against various stakeholders, from foreign nations to insurgency

groups and domestic opposition leaders. Governments’ existential struggle for independence,

recognition, and internal stability turned state sovereignty into a moral agenda in the post-

58. Chandra L Sriram, ‘Sri Lanka: Atrocities, Accountability, and the Decline of Rule of Law’ in Rene´ e Jeffery and Hun

Jun Kim (eds), Transitional Justice in the Asia-Pacific (CUP 2014) 61-86.

59. Anthony Regan, ‘Bougainville: Conflict deferred?’ in Edward Aspinall, Robin Jeffrey and Anthony Regan (eds),

Diminishing Conflicts in Asia and the Pacific. Why Some Subside and Others Don’t (Routledge 2013) 119-122.

60. John Braithwaite, Sinclair Dinnen, Matthew Allen, Valerie Braithwaite and Hilary Charlesworth, Pillars and Shadows:

Statebuilding as Peacebuilding in Solomon Islands (ANU Press 2010) 20.

61. Bess A Brown, ‘The Civil War in Tajikistan’ in Mohammad Reza Djalili, Frederic Grare and Shirin Akiner (eds),

Tajikistan: the Trials of Independence (Routledge 1998) 86-97; International Crisis Group, Tajikistan: an Uncertain

Peace (2001) Asia Report No 30, 2.

62. See for a detailed investigation of the background and the escalation of violence in Kyrgyzstan in the course of 1990s

and 2000s, Human Rights Watch, ‘‘‘Where is justice?’’ Inter-ethnic Violence in Southern Kyrgyzstan and its After-

math’ (August 2010).

63. Charles Robert Butcher, Benjamin E Goldsmith, Dimitri Semenovich and Arcot Sowmya, ‘Political Instability and

Genocide in the Asia-Pacific: Risks and Forecasts’ (2012) University of Sydney and Asia-Pacific Centre for the

Responsibility to Protect, University of Queensland, 11.

64. Jone Baledrokadroka, ‘The Super Confederacy: the Military in Fiji’s Politics’ (2015) 104 The Commonwealth Journal

of International Affairs 127, 127-136.

65. Report of the Group of Experts for Cambodia pursuant to General Assembly Resolution 52/135, 53 rd Session, Agenda

Item 110(b) (1999) UN Doc A/53/850, 5, 13.

66. I M Guiterrez III, ‘Human Rights in the Philippines: Restoration, Recognition and Institutionalization’ in Raul Pan-

galangan (ed), Law and Newly Restored Democracies: the Philippines Experience in Restoring Political Participation

and Accountability, Asian Law Series No 13 (IDE 2002) 79-80.

67. In Sup Han, ‘Gwangju and Beyond: Coping with Past State Atrocities in South Korea’ (2005) 27 HRQ 998.

Kim 257

conflict and post-colonial period.

Along with their conservative approach to sovereignty, the

non-interference doctrine became a cornerstone principle in the areas of security and diplomatic

relations. The Five Principles of Peaceful Coexistence (Five Principles)

were first proclaimed in

the 1950s in reaction to the imperialist incursion in Asia. This laid the foundation for the rise of

non-interference policy.

China and India adopted the Five Principles in the form of a bilateral

treaty in 1954, and Burma agreed to include them in its treaty with China in the same year.

Many

Asian State leaders reaffirmed the Five Principles as representing their understanding of sover-

eignty and non-interference for internal affairs.

The non-interference doctrine is codified in the key ASEAN instruments.

It imposes the

following constraints on Member States: ‘(1) refraining from criticizing the actions of a member

government towards its own people, ( ...); (2) criticizing the actions of states which were deemed

to have breached the non-interference principle; (3) denying recognition, sanctuary, or other forms

of support to any rebel group seeking to destabilize or overthrow the government of a neighboring

state; (4) providing political support and material assistance to member states in their campaign

against subversive and destabilizing activities’.

ASEAN States adhered (almost) religiously to

this doctrine, and ASEAN understanding of non-interference has resonated in the security regu-

lation and diplomatic practices in other sub-regions.

In East and Central Asia, the Shanghai

Cooperation Organisation (SCO) is growing as an important institution for inter-state security

cooperation. Established in 2001, the SCO is a regional forum comprising China, Russia, and four

of the Central Asian States.

India and Pakistan signed the memorandum of obligations in June

2016, initiating the formal process of joining this institution. In laying down basic principles of

regional security, the SCO Charter reflects the essence of the Five Principles.

The SCO members

68. Ginsburg (n 10) 870-873; Jurgen Haacke, ASEAN’s Diplomatic and Security Culture: Origins, Development, and

Prospects (Routledge 2009) 18-20, 31; Davis Lewis, ‘Sovereignty after Empire: the Colonial Roots of Central Asian

Authoritarianism’ in Sally N Cummings and Raymond Hinnebusch, Sovereignty after Empire: Comparing the Middle

East and Central Asia (Edinburgh University Press 2011) 178-198.

69. These are namely, mutual respect for territorial integrity and sovereignty, mutual non-aggression, mutual non-

interference, equality and mutual benefit, and peaceful co-existence.

70. Phil C W Chan, China, State Sovereignty and International Legal Order (Brill/Nijhoff 2015) 92; Malcolm N Shaw,

International Law (6th edn, CUP 2008) 214.

71. Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between the

Tibet Region of China and India (entered into force 3 June 1954) 299 UNTS 57; Sino-Burmese Treaty of Friendship

and Mutual Non-Aggression between the People’s Republic of China and the Union of Burma (signed 29 June 1954);

Kening Zhang, ‘China and the Peaceful Settlement of International Disputes’ in Timothy L H McCormack, Michael

Tilbury and Gillian D Triggs (eds), A Century of War and Peace. Asia-Pacific Perspectives on the Centenary of the

1899 Hague Peace Conference (Brill/Nijhoff 2001) 92.

72. Zhenmin Liu, ‘Following the Five Principles of Peaceful Coexistence and Jointly Building a Community of Common

Destiny’ (2014) 13 Chinese J Intl L 477, 478; Sung Won Kim, David P Fidler and Sumit Ganguly, ‘Eastphalia Rising?

Asian Influence and the Fate of Human Security’ [2009] World Policy Journal, 58-59; Zhang (n 71) 93-95.

73. Rodolfo C Severino, Southeast Asia in Search for Community: Insights from the Former ASEAN Secretary-General

(ISEAS Publishing 2006) 1-37.

74. Amitav Acharya, Constructing a Security Community in South East Asia: ASEAN and the Problem of Regional Order

(3 rd edn, Routledge 2014) 57.

75. Acharya (n 11) 328-330, 334; Md Nasrudiin Md Akhir and Sueo Sudo, ‘Institutionalization of ‘‘East Asian’’

Regionalism: the Critical Cases of ASEAN Plus Three and East Asia Summit’ in Alice D Ba, Cheng Chwee Kuik and

Sueo Sudo, Institutionalizing East Asia: Mapping and Reconfiguring Regional Cooperation (Routledge 2016) 35-55.

76. Namely, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan.

77. The Shanghai Cooperation Organization Charter (entered into force 19 September 2003) (‘‘The SCO Charter’’).

258 Netherlands Quarterly of Human Rights 35(4)

agree to jointly combat threats to security such as ‘terrorism, separatism, and extremism, illicit

narcotics,and arms trafficking and other types of criminalactivity of a transnational character’,

but

they havenot made any actual regional operationsto this end.

Only the informalconsultationproject

is ongoingto address drug traffickingand other cross-bordercrimes. Under the SCO,the ASEAN type

of non-interference is maintained in establishing policies for regional peace and stability.

In strict adherence to non-interference, Asian States (in their relationships with one another)

have avoided taking formal actions to address government-led civilian persecution and other

human rights violations committed outside their national boundaries.

Regardless of the nature

and the scale of suffering caused by those violations, it was not international intervention with a set

of collective solutions, but rather non-interference that formed the core principle of their response.

Asia’s international and regional regulatory landscape has been relatively more legalised in trade

and investment, but, in most policy areas, Asian governments have preferred a loose form of

cooperation and informal engagement. It is also the only region where States have not succeeded

in creating regional human rights commission or court.

Considering this normative attitude strengthened in the past several decades, it should have

come as no surprise that most Asian governments were hesitant to join the ICC, a highly legalised

international institution with strong ramifications for security and diplomatic policy. For many,

accepting the jurisdiction of a foreign accountability mechanism would not be compatible with

their conservative sense of sovereignty. Thus, they often cast the expanding role of international

criminal adjudication in a negative light, as an unacceptable intrusion into sovereignty. The same

concerns have been strongly argued by non-party States such as China, India, Indonesia, Pakistan,

and Sri Lanka since the Rome negotiations.

While they have showed rhetorical support for the

ICC, their objection to the Rome Statute in its current form has been persistent. High-ranking

public officials and prominent local scholars in these non-party States have made unfavorable

comments about ratification, warning domestic audiences that the ICC process may be misused to

interfere with national politics.

In their view, the direct involvement of the ICC in the investi-

gation and prosecution of sensitive internal affairs would introduce unwanted foreign influence.

Many other countries in Central and Southeast Asia, and the Pacific, are also critical of Rome

process on similar grounds.

In light of their recent history of colonial rule and/or armed conflicts,

78. ibid Art 3.

79. Jianwei Wang, ‘China and SCO: Towards a New Type of Interstate Relations’ in Guoguang Wu and Helen Land-

sdowne (eds), China Turns to Multilateralism. Foreign Policy and Regional Security (Routledge 2008) 119; Lowell

Dittmer and Maochun Yu, Routledge Handbook of Chinese Security (Routledge 2015) 68-73, 230-237.

80. Chanintira na Thalang and Pinn Siraprapasiri, ‘ASEAN’s (non-)Role in Managing Ethnic Conflicts in Southeast Asia:

Obstacles to Institutionalization’ in Alice D Ba, Cheng Chwee Kuik and Sueo Sudo, Institutionalizing East Asia:

Mapping and Reconfiguring Regional Cooperation (Routledge 2016) 131-155.

81. Banerjee (n 6); Guan (n 6); Hikuri (n 6); Jia (n 6); Ramanathan (n 6).

82. See for example, interviews and official statements of Indonesian Minister of Defense and the Chairman of House

Commission at the National Assembly; M S Aritonang, ‘Government Officially Rejects Rome Statute’ The Jakarta

Post (21 May 2013); Hikmahanto Juwana, ‘Editorial: Should RI Ratify ICC Statute?’ The Jakarta Post (2 April 2009);

Maskun, ‘The Conceptual Framework of Crimes Against Humanity in Historical Context and Indonesian Law’ (2012)

3 Indonesia L Rev 283, 283-284, 293; M Junianto Sihaloho, ‘Defense Minister Dodges Question on Blocking ICC

Treaty’s Ratification’ Jakarta Globe (21 May 2013); Bimo Yusman and Ted Piccone, ‘Indonesian Foreign Policy: ‘a

Million Friends and Zero Enemies’’ (Brookings, 14 February 2014).

83. Natalie Baird, ‘To ratify or Not to Ratify? An Assessment of the Case for Ratification of International Human Rights

Treaties in the Pacific’ (2011) 12 Melbourne J Intl L 249, 266-299; Kathryn Hay, ‘A Pacific Human Rights

Mechanism: Specific Challenges and Requirements’ (2009) 40 Victoria U Wellington L Rev 195.

Kim 259

nation leaders have reason to worry that the international intervention of this kind might put their

hard-fought independence and internal stability at risk. Since 2002, no Central Asian State has

initiated the official process to join the Court. ASEAN Countries such as Bangladesh and the

Philippines (joined 2010 and 2011), as well as the Pacific States of Vanuatu (joined 2011), are now

parties to the Rome Statute. However, it took a relatively longer time for them to clear misunder-

standings about the ICC process and to develop formal, government-level discussion about rati-

fication in these countries.

Several Asian countries actively engaged in the new experiment of international justice under

the ICC. However, their individual efforts were not sufficient to develop a collective voice calling

for region-wide recognition of the Rome Statute.

4.2. The domestic culture of impunity for serious atrocity crimes

Around the early 1990s, human rights advocates began to refer to the term ‘culture of impunity’.

The specific reference to culture implies that impunity is linked to ‘deeply entrenched attitudes’

that take a long time and much effort to change. Impunity arises from a failure of States to meet

their obligations

‘to investigate violations; to take appropriate measures in respect to the perpetrators [...]by

ensuring that those suspected of criminal responsibility are prosecuted, tried, and duly pun-

ished; to provide victims with effective remedies and to ensure that they receive reparation for

the injuries suffered; [ ...] and to take other necessary steps to prevent a recurrence of

violations’.

Regrettably, a culture of impunity has developed in many parts of Asia with the weakening of

national legal systems after acute conflicts, and the lack of strong political will to hold responsible

individuals to account.

4.2.1. Failed criminal punishment at the national courts. Of the various policy options to ensure

accountability for atrocity crimes, national prosecution, if conducted in a genuine, effective,

and fair manner, may serve the myriad goals of justice better than any other measure.

However, according to the cross-regional analysis of post-conflict and transitioning countries,

national courts in Asia have been the least likely to prosecute mass human rights violations of

state agents – Asia accounts for only 17 percent of the total number of domestic human rights

prosecutions from 1970 to 2009.

In principle, victims can contribute to resist impunity by

filing actions in the courts against alleged perpetrators. However, their efforts may be stymied

without having legal procedures to protect them and other witnesses, from intimidation and

84. Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell L Rev 1069, 1078.

85. Diane Orentlicher, ‘Promotion and Protection of Human Rights, Report of the Independent Expert to Update the Set of

Principles to Combat Impunity’ (8 February 2005) UN Doc E/CN.4/2005/102/Add.1, 7.

86. Burke-White (n 38) 68-69.

87. To examine national practices of adjudicating mass human rights violations, authors selected fifteen post-conflict and

transitioning countries in Asia – Bangladesh, Bhutan, Cambodia, East Timor, Fiji, Indonesia, Kyrgyzstan, Malaysia,

Mongolia, Nepal, Pakistan, Philippines, South Korea, Taiwan, and Thailand. Leigh A Payne and Kathryn Sikkink,

‘Transitional Justice in the Asia-Pacific: Comparative and Theoretical Perspectives’ in Rene´e Jeffery and Hun Jun Kim

(eds), Transitional Justice in the Asia-Pacific (CUP 2014) 39-41.

260 Netherlands Quarterly of Human Rights 35(4)

unfair treatment by any individual having interests in frustrating their participation in the

relevant judicial process.

Perpetrators responsible for human rights atrocities too often escaped national prosecutions, or

only became subject to accountability measures long after the actual perpetuation of their crimes.

For example, it took more than three decades for Cambodia to take meaningful action to punish

killings and other crimes attributed to the Khmer Rouge in the 1970s.

In the aftermaths of

conflicts, some Asian States established special tribunals to punish atrocity crimes, drawing on

local contexts and experiences. However, without sufficient support from the political leaders and

law-enforcement agencies, the mere creation of special courts could not guarantee effective and

timely punishment of atrocities. The process of creating and empowering the Bangladesh Inter-

national Crimes Tribunal (ICT) provides an example of this.

The ICT, a special tribunal within

the judicial system of Bangladesh is an entity of domestic law and ‘international’ only in name.

The 1973 International War Crimes (Tribunal) Act was legislated to punish the former government

leaders and militants responsible for violence and destruction committed during the liberation war

in 1971. However, due to various political difficulties after independence, the proposed tribunal

was initially aborted. Only in 2008 was the ICT reinstituted by the dominant political party’s

initiative. After amending the old 1973 Act several times, the ICT began its investigation and

prosecution in 2010 under the modified law.

In another case, Indonesia passed law 26/2000 creating the Ad Hoc Human Rights Court,

special chamber within the national judiciary. This court was originally instituted to punish

Indonesian perpetrators responsible for atrocities committed during the 1999 violence in East

Timor. Leading commentators and human rights advocates, however, generally agree that the

trials conducted by this special court did not provide credible accounting for what had happened

during the violence.

Although the Ad Hoc Court was in full operation, not one senior officer

directly involved in the commission of atrocities has been held responsible, as one commentator

observed after examining seven cases of mass violence committed during this period.

Indone-

sia’s weak commitment to punishing those perpetrators undermined East Timor’s own efforts to

deal with the atrocities inflicted on its people. Due to Indonesia’s refusal to cooperate with

88. Human Rights Center, UC Berkeley School of Law, ‘The Victims’ Court? A Study of 622 Victim Participants at the

International Criminal Court’ (2015) 38, 45, 56-58, 67, 72.

89. Since the ECCC began its operation in 2006, only five of Khmer Rouge leaders have been brought before the Court.

90. Caitlin Reiger, ‘Fighting Past Impunity in Bangladesh: a National Tribunal for the Crimes of 1971’ (July 2010)

International Center for Transitional Justice (ICTJ) Briefing; Jhuma Sen, ‘The Trial of Errors in Bangladesh: the

International Crimes (Tribunals) Act and the 1971 War Crimes Trial’ (2012) 14 Harv Asia Q 33.

91. For a more recent development in the ICT’s work, see Abdus Samad, ‘The International Crimes Tribunal in Bangladesh

and International Law’ (2016) 27 Crim L Forum 257.

92. Undang-Undang Nomor 26 Tahun 2000, Pengadilan Hak Asasi Manusia (Law No. 26, Year 2000 concerning Human

Rights Courts)< http://www.dpr.go.id/dokjdih/document/uu/UU_2000_26.pdf>; see also Amnesty International’s

Comments on the Law on Human Rights Courts,

asa210052001en.pdf> accessed 16 August 2017.

93. David Cohen, ‘Intended to Fail: the Trials Before the Ad Hoc Human Rights Court in Jakarta’ (August 2003) ICTJ

Policy Paper; Mark Cammack, ‘The Indonesian Human Rights Court’ in Andrew Harding and Penelope Nicholson

(eds), New Courts in Asia (Routledge 2010) 180; Suzannah Linton, ‘Unraveling the First Three Trials at Indonesia’s Ad

Hoc Court for Human Rights Violations in East Timor’ (2004) 17 Leiden J Intl L 303.

94. Patrick Burgess, ‘De Facto Amnesty? The Examples of Post-Soeharto Indonesia’ in Francesca Lessa and Leigh A

Payne (eds), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (CUP

2012) 263.

Kim 261

extradition requests, East Timor had immense difficulties in investigating and prosecuting respon-

sible members of the Indonesian military and Timorese collaborators.

As the vast majority of the

alleged perpetrators had already returned to Indonesia by that point, without Indonesia’s cooper-

ation, East Timor was not able to obtain custody of the accused in many cases. This uncooperative

situation led to a huge discrepancy between the number of people indicted and the number of

suspects actually put on trial.

Some post-conflict States preferred softer accountability measures (non-prosecutorial investi-

gative commissions) to criminal punishment at the courts. Sri Lanka created three Commissions of

Inquiry in 1995 to investigate the involuntary removal or disappearance of persons during the 25

years of ethnic conflict.

More recently, in 2010, the Commission on Lessons Learnt and Recon-

ciliation (LLRC) was established to provide some forms of accountability at the end of the civil

war in 2009.

Another recent non-prosecutorial procedure designed to address past atrocities is the

Truth and Reconciliation Commission of Solomon Islands (the Solomon Islands TRC) instituted

against the backdrop of violent clashes between armed forces representing multiple ethnic groups

in the country.

For victims and the affected societies, these commissions examined the proximate

causes of the conflicts and provided a record of injustice perpetrated during its course. However,

their efforts did not lead to successful punishment of responsible perpetrators.

100

4.2.2. Granting ‘‘blanket’’ amnesties. Impunity for atrocity crimes can also be maintained when States

grant ‘blanket’ amnesties, unconditionally relieving almost all perpetrators of atrocities from

responsibility.

101

At the end of armed conflicts or as part of a transition away from dictatorial

rule, governments may adopt amnesty laws or executive decrees that prohibit the prosecution of

95. Sylvia de Bertodano, ‘East Timor: Trials and Tribulations’ in Cesare Romano, Andre Nollkaemper and Jann K

Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (OUP 2004) 92-

95; David Cohen, ‘‘‘Justice on the Cheap’’ Revisited: the Failure of the Serious Crimes Trials in East Timor’ (2006)

80 Asia Pacific Issues, 2.

96. The Serious Crimes Unit (SCU) under the Prosecutor General’s Office of East Timor filed 95 indictments against 391

suspects; of the suspects indicted, only 89 were brought to trial. Cohen (n 95).

97. The main objective of these commissions was twofold: to identify individuals who had disappeared during civil

conflicts between 1988 and 1994, and to decide the appropriate charges against those involved in abduction. Human

Rights Watch, ‘Recurring Nightmare: State Responsibility for ‘‘Disappearances’’ and Abductions in Sri Lanka’ (5

March 2008) accessed 16 August 2017.

98. See for a critical examination of the LLRC’s work to establish accountability for what had happened during the civil

war, see ‘Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka’ (31 March 2011) 80-96

accessed 16 August 2017.

99. The Solomon Islands TRC is a part of national reconciliation measures created in response to the 1998-2003 conflict

in the Islands. It began to operate from 2009 and concluded its work in 2012 with the submission of the Final Report to

the government. See for more details, Holy L Guthrey, Victim Healing and Truth Commissions: Transforming Pain

Through Voice in Solomon Islands and Timor-Leste (Springer 2015) 108, 115-134.

100. The previous transitional justice and national law-enforcement mechanisms in Sri Lanka have largely failed to

establish genuine accountability for the civil war. Steven R Ratner, ‘Accountability and the Sri Lankan Civil War’

(2012) 106 AJIL 795; International Crisis Group, ‘Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of

War’ Asia Report No 289 (2017) 2, 5, 12-14. The Solomon Islands have not upheld its obligations to publish the

TRC’s final report and make the report publicly accessible. The government has also been criticized for its failure to

implement the TRC’s recommendations. Rene´e Jeffery, ‘The Solomon Islands Truth and Reconciliation Commission

Report, Forgiving the Perpetrators, Forgetting the Victims?’ in Rene´e Jeffery (ed), Transitional Justice in Practice:

Conflict, Justice, and Reconciliation in the Solomon Islands (Palgrave Macmillan 2017) 113-140.

101. Burgess (n 94) 263-290; Ratner, Abrams and Bischoff (n 24) 8.

262 Netherlands Quarterly of Human Rights 35(4)

alleged human rights abusers or pardon convicted military elites.

102

However, there is a growing

consensus that granting domestic amnesties for serious atrocity crimes is not compatible with

international law, and blanket amnesties for these crimes should not be acceptable.

103

Blanket

amnesties conceal and suppress the truth about atrocities, at the cost of preventing victims from

seeking accountability.

By imprudently granting blanket amnesties to those responsible for mass atrocities, many Asian

States fostered a culture of impunity. In 1994, to resolve lingering concerns about the legacy of the

Khmer Rouge, the Cambodian government passed a legislation granting amnesty to former Khmer

Rouge guerrillas who defected to the government between 7 July 1994 and 7 January 1995.

104

estimated 6,600 members of the former regime received amnesty pursuant to this law. In the case of

the 1987 military c oup in Fiji, the Governor General gran ted amnesties to all participants in the coup

to quickly stabilise the regime.

105

The same practice was repeated multiple times. The aftermath of

the 2006 coup led to t he adoption of another executive d ecree that granted ‘‘full and unconditiona l

immunity fromall criminal or civil or legal or military or professional proceedingsor consequences’’

to the members of the military who were involved in the coup and all persons under their com-

mand.

106

In 2015, Mongolia adopted a controversial amnesty law broadly exempting criminal

liability of persons who had committed specific categories of crimes, such as armed rioting, human

trafficking, illegal obtaining of human organs, and terrorism during the specified time period.

107

4.2.3. The impact of domestic impunity for serious atrocity crimes. For various reasons, many Asian

courts have not been successful in adjudicating atrocity crimes, particularly those committed by

the nations’ former or current political and military leaders. Responsible individuals easily evade

accountability, and a significant number of them continue to stay in power in their countries,

holding high-level administrative and military positions at the government.

Countries with a longstanding culture of impunity for atrocity crimes may be less willing to

make a treaty commitment to the ICC, the accountability mechanism to be triggered to adjudicate

exactly the same types of crimes in the (future) occurrence of atrocities in their territories. The

standards of actions required under the Rome Statute are entirely different from the ways in which

such countries have handled the aftermaths of atrocities pursuant to their national criminal laws.

102. There may be some benefits from granting amnesties under certain circumstances. In some situations, amnesties have

accompanied ‘‘gradual and sustained improvements in democracy, peace, human rights, and the rule of law.’’ Mark

Freeman, Necessary Evils: Amnesties and the Search for Justice (CUP 2009) 9. The amnesty policy may also be

employed to protect a newly established yet fragile nation from internal unrest. Chandra L Sriram, Confronting Past

Human Rights Violations: Justice v Peace in Times of Transition (Frank Cass 2004) 10.

103. Regarding illegality of blanket amnesties, see Jose E Alvarez, ‘Alternatives to International Criminal Justice’ in

Anthony Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 36; William Burke-

White, ‘Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation’

(2001) 42 Harv Intl L J 467, 530.

104. Ronald Slye, ‘The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violation of

Human Rights’ (2004) 24 Wisconsin Intl L J 99, 101-102.

105. Keith B Richburg, ‘Fiji’s Leaders Negotiate, as Coup Appears to Unravel’ The Washington Post (19 May 1987).

106. Interim Government of the Republic of the Fiji Islands, Immunity (Fiji Military Government Intervention) Pro-

mulgation 2007 (adopted 18 January 2007) accessed

16 August 2017.

107. Wendy Zeldin, ‘Mongolia: Amendment to Controversial Amnesty Law Adopted’ (Library of Congress, 7 November

2015)

accessed 16 August 2017.

Kim 263

Political and military elites who were directly or indirectly involved in the past atrocities would

resist joining the ICC, making it harder to reach an internal agreement for ratification. From their

point of view, recognising the Court and the rules contained in the Statute may be self-

condemning.

Even without having well-established domestic practices for adjudicating atrocity crimes, some

States did join the ICC at certain points. However, the culture of impunity deeply rooted in their

legislative and judicial experiences seems to have adversely affected their ‘post-ratification’

commitment to the Rome Statute. In fact, domestic implementation is in a stalemate situation in

most Asian ICC Parties.

108

They have not made satisfactory efforts to enact implementing legisla-

tions and modify national rules that are incompatible with the Statute . The considerable gap

between norm recognition and norm compliance in this region necessitates rigorous regional

monitoring.

4.3. Limited financial, technical, and human resources

In making a decision to join the ICC and accept new treaty obligations arising from the Rome

Statute, domestic policymakers assess internal costs associated with the ratification and imple-

mentation. They generally consider two aspects of available resources. First, States need adequate

financial resources to perform international and national activities pursuant to their commitment to

the ICC process. Second, a sufficient pool of local experts with expertise in international criminal

law should be ensured. Law enforcement and judicial authorities also need the technical capacities

to conduct complex investigations potentially involving a large number of perpetrators, victims,

and witnesses. After ratification, the domestic availability of funds, infrastructure, and manpower

remains to be the key factor facilitating or limiting States’ engagement as ICC Parties. Since

political support for the ICC and the degrees of economic prosperity considerably vary among

countries, some States are far more capable than others of spending, and being willing to spend,

their resources to execute this global justice project. For example, Japan is the largest financial

contributor to the Court - contributing approximately 17 percent of the Court’s budget.

109

How-

ever, most Asian States are not in Japan’s financial position. The serious resource constraints have

weakened their capacity for effective participation.

At the preparatory phase of the negotiations, the issue of resource constraints was presented as a

critical concern. As early as 1996, it had been noted that, due to the limited resources at their

disposal, it was fundamentally difficult for many States to engage in the negotiations, and that

these internal difficulties should first be resolved to bolster wider participation. With this in mind,

the UN General Assembly adopted Resolution 51/207 to provide ‘financial assistance’ for dele-

gates of the ‘least developed countries and developing states’ to participate in the work of the

Preparatory Committee as well as the Rome Conference.

110

A trust fund was subsequently

108. See Section 3.2.3.

109. Statement by Ambassador Motohide Yoshikawa, at the thirteenth session of the ASP to the Rome Statute of the

International Criminal Court (11 December 2014) 2

ASP13-GenDeba-Japan-ENG.pdf>; Statement by Ambassador Hiroshi Inomata, at the fifteenth session of the ASP to

the Rome Statute of the International Criminal Court (17 November 2016) 1, 3

asp_docs/ASP15/GenDeba/ICC-ASP15-GenDeba-Japan-ENG.pdf> accessed 16 August 2017.

110. UN General Assembly, ‘Resolution 51/207. Establishment of an International Criminal Court’ (17 December 1996)

UN Doc.A/RES/51/207.

264 Netherlands Quarterly of Human Rights 35(4)

established in accordance with Resolution 51/207. Under this financial arrangement, 33 of the least

developed and 19 developing countries, including Asian States, joined the Rome negotiations.

111

However, only a total of 54 delegates from 52 States participated under the trust fund scheme. It is

questionable whether one or two representatives, in a highly limited amount of time, could thor-

oughly examine the 116 Articles in the draft statute, with 1,300 brackets identifying terms under

disagreement. Working with such a lengthy text was difficult even for those who were involved in

the Preparatory Co mmittee meetings that took place between 1996 and 1998, let alone those

delegates who were initially unfamiliar with it.

112

The sizes of the delegations from these

countries were considerably smaller than those from States having more resource capac-

ity.

113

Smaller delegations could not cover all concurrent meetings at the multilateral con-

ference, and were therefore unable to make fully informed decisions on the matters that

would have significant impacts on their national legal systems. The unavailability of simul-

taneous interpretation at the informal working groups also frustrated many of the non-

English speaking delegations.

114

After all, temporary financial assistance cannot be the

solution for States having chronic difficulties with securing resources for a complex legal

project like the ICC.

Pacific States have had limited ability in terms of resources to actively participate in the Rome

Statute system.

115

In light of his own experience during the negotiations and their aftermaths, the

then Attorney General of Samoa highlighted insufficient resources as the most critical obstacle

preventing Samoa from making more meaningful contribution.

116

Due to a shortage of staff in the

government agencies, only about a dozen officials, including him, had to deal with various legal

issues arising from Samoa’s international actions, as well as day-to-day internal affairs. Samoa was

therefore unable to fully assess Rome Statute provisions and their implications for domestic legal

order, at least not within a short period of time. Both the problems with limited funds for judicial

infrastructure (e.g. courtrooms, prison facilities, and judicial library) and the severe personnel

shortage (e.g. of judges, lawyers, and police officers) have been prevalent in many other countries

that went through political and economic difficulties.

117

For example, only a total of 751 lawyers

111. ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’ (submitted 14 April

1998) A/CONF.183/2, paras 18-19. The list of delegations is found in ‘UN Diplomatic Conference of Plenipo-

tentiaries on the Establishment of an International Criminal Court, Official Records Vol II: Summary records of the

plenary meetings and the meetings of the Committee of the Whole’, A/CONF.183/13 (‘‘Rome Conference Official

Records II’’) 5-47.

112. M Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999)

32 Cornell Intl L J 443, 450.

113. ibid 449.

114. Ibid 450.

115. Pacific states have also identified the resource constraints as a practical obstacle to join human rights treaties. New

Zealand Human Rights Commission and Pacific Islands Forum Secretariat, ‘National Human Rights Institutions:

Pathways for Pacific States’ (9 July 2007) 19-23

fic_States.pdf>; Joint Standing Committee on Foreign Affairs, Defence and Trade, The Parliament of the Com-

monwealth of Australia, ‘Human Rights in the Asia-Pacific: Challenges and Opportunities’ (April 2010) 5-7

www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url¼jfadt/asia_paci

fic_hr/report.htm> accessed 16 August 2017.

116. Ming Leung Wai, ‘Samoa’s Experience with the International Criminal Court’ (2008) 34 Commonwealth Law

Bulletin 825.

117. Olympia Bekou, ‘The ICC and Capacity Building at the National Level’ in Carsten Stahn (ed), The Law and Practice

of the International Criminal Court (OUP 2015) 1250-1251; William Burke-White, ‘Regionalization of International

Kim 265

were registered in Cambodia as of 2009.

118

In addition, fewer than 100 lawyers were available in

Timor-Leste up to the mid-2000s.

119

The resource constraints continue to be a factor limiting policy-making potentials of many

Asian governments at the ASP. For the past two consecutive years, almost half of the Asian Parties

were unable to send their representatives to the annual ASP session, the major platform for States

Parties to conduct management oversight and legislative activities for the Court.

120

The ASP has

encouraged more involvement of the developing countries in the Assembly’s activit ies. Since

2003, it has adopted a series of resolutions with attempts to assist delegations from those States

Parties.

121

The Assembly has called upon States, international organisations, and other entities to

contribute voluntarily to the ‘Trust Fund’. However, as noted in the letter of the ASP President in

2016, contributions to the Fund made for that year were able to support three delegates at best.

122

Other than financial assistance, suggestions are made to encourage more involvement of States

(both ICC Parties and non-Parti es) having serious resource constraints. One of the important

strategies is to assist them to build the capacity of a wider group of local legal professionals and

activists.

123

Efforts should also be made to staff a sufficient number of prosecutors and investi-

gators who understand the specific challenges of pursuing accountability for international crimes.

In this regard, the ASP Bureau on Complementarity stated that the ICC could first assist States to

adjudicate atrocity crimes at their national courts.

124

The ASP, however, set a clear limit that the

Court should not become ‘a development organisation or an implementing agency’, and should

instead be ‘a catalyst of direct state-to-state assistance and indirect assistance through international

and regional organisations’.

125

The ICRC, Organisation for Security and Co-operation in Europe (OSCE), United Nations

Development Programme (UNDP), and United Nations Interregional Crime and Justice Research

Institute (UNICRI) have also worked with the legal communities of developing countries to build

adequate technical capacity for the effective (national) adjudication of international crimes.

126

Criminal Law Enforcement: a Preliminary Exploration’ (2003) 38 Texas Intl L J 729, 739-741; Hansjoerg Stromeyer,

‘Building a New Judiciary for East Timor: Challenges of a Fledgling Nation’ (2000) 11 Crim L Forum 259, 263.

118. United States Department of State, Bureau of Democracy, Human Rights and Labor, ‘Country Reports on Human

Rights Practices: Cambodia’ (2010) 7-10 accessed 16

August 2017.

119. Burke-White (n 117) 740; Stromeyer (n 117) 263.

120. Assembly of States Parties, ‘Delegations to the Fourteenth Session of the ASP to the Rome Statute of the International

Criminal Court’ (17 December 2015) ICC-ASP/14/INF.1; Assembly of States Parties, ‘Delegations to the Fifteenth

Session of the ASP to the Rome Statute of the International Criminal Court’ (2 December 2016) ICC-ASP/15/INF.1.

121. See for the recent ASP Resolution in this regard, Assembly of States Parties, ‘Strengthening the International Criminal

Court and the Assembly of States Parties’ (adopted 26 November 2015) ICC-ASP/14/Res.4, paras 110-112. The ASP

has referred to the following 2003 Resolution whereby a trust fund was initially established. Assembly of States

Parties, ‘Establishment of a Trust Fund for the Participation of the Least Developed Countries in the Activities of the

Assembly of States Parties’ (adopted 12 September 2003) ICC-ASP/2/Res.6.

122. Official Letter of the President, Sidiki Kaba, of the ASP (29 July 2016) ASP/2016/27

asp_docs/ASP15/PASP-LR-ASP15-LDC-ENG.pdf> accessed 16 August 2017.

123. Bekou (n 117) 1254.

124. Assembly of States Parties, ‘Report of the Bureau on Complementarity’ (15 November 2015) ICC-ASP/14/32, paras

23, 29, 30.

125. Assembly of States Parties, ‘Report of the Bureau on Stocktaking: Complementarity. Taking Stock of the Principle of

Complementarity: Bridging the Impunity Gap’ (18 March 2010) ICC-ASP/8/51, para 42.

126. Bekou (n 117) 1254-1257.

266 Netherlands Quarterly of Human Rights 35(4)

According to the policy paper jointly submitted by the OSCE and the UNICRI, external training

programs must be tailored to help local experts appropriately translate and apply relevant inter-

national legal rules to the domestic contexts.

127

Based on the field experiences with supporting

national courts of post-conflict States, the joint report suggests ways in which the programs could

be improved: ensuring the availability of materials in the language of the participants, arranging

clerkships for local lawyers in international tribunals, and pro viding sufficient training to the

defense, to name a few. Other co-partners of capacity building are the CICC and the PGA. The

CICC has worked closely with local NGO representatives and academics by bringing them

together at the sub-regional conferences. At the Asia-Pacific Parliamentary Consultation on the

ICC facilitated by the PGA, interested lawmakers and other officials from the Ministry of Foreign

Affairs and the Ministry of Justice (acting in their personal capacities) discussed ways to encourage

ratification as well as to support implementation efforts. According to the PGA’s activity reports,

the PGA currently sets some non-parties in the region (Indonesia, Malaysia, Nepal, Kiribati,

Tonga, and Tuvalu) as its priority target countries.

128

4.4. Different regional experiences, variations in region-wide commitments to the Rome

Statute system

Asia is not the only region where the three types of common contexts have been strongly present in

the political, judicial, and socio-economic experiences of individual countries. To some extent, the

African contexts are comparable to those of many Asian countries. In the early phase of the Cold

War, Asian and African States sharing similar histories of colonialism, liberation wars, and other

horrific human rights abuses, envisioned a new multilateral forum outside the UN. They sought to

discuss and reflect on their own interests in international affairs as newly independent nations.

Most prominently, at the 1955 Asian-African Conference (known as the Bandung Conference),

States from both regions declared their vision of sovereignty and the principle of non-interference.

The Bandung Conference became the inspiration for Third World solidarity in the struggle against

colonialism. The anti-colonial sentiments also gave rise to the creation of the Organisation of

African Unity (OAU) in 1963.

129

Regarding the culture of impuni ty, according to the cross-

regional empirical study menti oned above,

130

Asian national courts have bee n least likely to

prosecute mass human rights violations committed by state agents. However, compared with the

Asian region, post-conflict and transitioning States in Africa were not distinctly more successful in

adjudicating past atrocities committed in their territories.

One reasonablequestion would be why despite the tworegions having similar aspectswith respect

to three common contexts, Africa’s participation in the RomeStatute system have been significantly

127. OSCE Office for Democratic Institutions and Human Rights, ‘Supporting the Transition Process: Lessons Learned

and Best Practices in Knowledge Transfer Final Report’ (2009) 10, 38, and 56

accessed 16 August 2017.

128. Parliamentarians for Global Action, ‘Parliamentary Campaign for the Effectiveness and Universality of the ICC

System’ accessed 16 August 2017.

129. The OAU was the regional political body of all African states until the AU replaced it in 2002. Charter of the

Organization of African Unity (23 May 1963) 47 UNTS 39, 2 ILM 766 (‘‘TheOAU Charter’’). Defending sovereignty

and independence has been noted as the fundamental purposes of many African intergovernmental organizations. See

eg The OAU Charter, Art III(2); African Charter on Human and Peoples’ Rights (27 June 1981) OAU Doc CAB/LEG/

67/3 rev.5, 21 ILM 58 (1982) Arts II(1)(c), III(3).

130. Payne and Sikkink (n 87).

Kim 267

higher than Asia’s. For instance, Africa has the largest representation at the ICC, whereas Asia is

the least-engaged region.

131

Against the foregoing, the rest of this sub-section i) focuses on the

critical decade that set out the background in the establishment and initial development of the ICC

– that is from the mid-1990s to early 2000s,and ii) exam ines the key differences between the Asian

and African regions that led to the substantially larger representation and greater participation of

the latter.

First, in the aftermath of humanitarian crises such as the Rwandan Genocide in the 1990s,

African governments had strong interests in combating mass human rights atrocit ies.

132

They

generally accepted that their national l egal systems had failed to hold p erpetrators of atrocity

crimes accountable.

133

Some of the essential Africa-originated mechanisms for dealing with

those crimes and other major human rights violations were developed from thi s awareness of

impunity and growing demand for accountability on the continent. For instance, in 1995, the

Southern African Development Community (SADC)

134

launched the Southern African

Regional Police Chiefs’ Cooperation Organisation (SARPCCO), for the management of all

forms of cross-border crimes with regional implications. The SARPCCO facilitates exchanges

of intelligence, ensures joint monitoring of relevant crimes, and promotes regional coopera-

tion in the criminal proceedings. In 1998, the African community established the African

Court on Human and Peoples’ Rights (ACtHPR) with the adoption of a Protocol to the

African Charter on Human and Peoples’ Rights.

135

While the ACtHPR’s effectiveness is not

without criticisms, the establishment of this court shows ‘a strong universalist mandate to

ensure the protection of human rights for all persons’ in the continent.

136

Along with the

development of these regional processes, African States have accommodated the value of

more legalized and systematic inter-state cooperation for the region. Such familiarity with

the institutionalised regional cooperation and lawmaking in the areas of security, crime

punishment, and human rights may have increased their willingness to participate in the

development of the possible global equivalent, like the ICC.

Second, even prior to the Diplomatic Conference, African countries made efforts to adopt a

common position on the establishment of a permanent international criminal court. African sta-

keholders had high hopes about the ICC ‘to be a court created in part by Africans and ultimately for

the benefit of African victims of serious crimes’.

137

At the first regional conference on the ICC

held in 1997, SADC States agreed to take a common stance to support the creation of the long-

131. See generally Section 3.2.

132. Charles Chernor Jalloh, ‘Regionalizing International Criminal Law’ (2009) 9 Intl Crim L Rev 445, 446; Shamiso

Mbizvo, ‘The ICC in Africa: the Fight Against Impunity’ in Kamari M Clarke, Abel S Knottnerus and Eefie de Volder

(eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 40-42.

133. As noted in Dakar Declaration for the Establishment of the International Criminal Court in 1998 (‘‘Dakar Declara-

tion)’’ accessed 16 August 2017.

134. The SADC (the successor of the Southern African Development Coordination Conference established in 1980) is an

intergovernmental organization promoting economic integration and security cooperation among 16 Southern African

states.

135. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human

and Peoples’ Rights (9 June 1998) OAU Doc OAU/LEG/EXP/AFCHPR/PROT(III).

136. Nsongurua J Udonbana, ‘Toward the African Court on Human and Peoples’ Rights: Better Late than Never’ (2000) 3

Yale Human Rights and Development 45, 58.

137. Max du Plessis, ‘The International Criminal Court that Africa Wants’ (2010) ISS Monograph 172, Institute for

Security Studies, 6.

268 Netherlands Quarterly of Human Rights 35(4)

awaited Court.

138

This meeting became the impetus for a continent-wide consultation process in

preparation for the Rome negotiations.

139

In the following year, Senegal in West Africa hosted a

conference in Dakar where 25 African States adopted a declaration, affirming their commitment to

the establishment of the ICC.

140

At the 1998 OAU summit, heads of States adopted the OAU

resolution calling on all members to support the creation of the Court.

141

Third, 47 African States were represented at the Rome Conference, and played an important

role in crafting the text of the draft Statute.

142

Most remarkably, they spoke in one voice on many

occasions during the negotiations, under the name of the SADC, supporters of the Dakar Declara-

tion, or the OAU. For example, Ministers of Justice and Attorneys-General of the SADC countries

had gathered to discuss various aspects of the draft Statute.

143

The South African delegation spoke

on behalf of the SADC, regarding core issues such as the definition of Article 5 crimes and the

jurisdiction mechanisms (particularly the Prosecutor’s proprio motu power).

144

Other member

countries then followed up and endorsed comments made on behalf of the SADC.

145

Within the

circle of the OAU, African States again emphasised the importance of having coordinated

approaches to the highly contested matters in the draft Statute.

146

It seems that African delegates

strategically chose this way to strengthen their bargaining power in the negotiations. The frequent

exchanges of information and opinions between delegations enhanced their understanding of the

substantive issues contained in the draft Statute.

147

This line of regional approach may also have

been beneficial to many African participants lacking sufficient economic and human resources to

prepare for the negotiations. The advocacy work of African activists and academics was equally

crucial for increasing continent-wide support for the ICC.

148

The NGOs presence at the Rome

Conference represented ‘an unprecedented level of participation by civil society in [international]

lawmaking’,

149

and the African civil society was influential in this process. Almost 90 African

organisations joined the NGO coalition mobilised by the CICC throughout the negotiations.

150

138. Statement by Ambassador Khiphusizi Josiah Jele, Permanent Representative of South Africa on behalf of Member

States of the Southern African Development Community, delivered at the Sixth Committee of the 52nd UN General

Assembly (21 October 1997) accessed

16 August 2017.

139. Phakiso Mochochoko, ‘African and the International Criminal Court’ in Evelyn Ankumah and Edward Kwakwa

(eds), African Perspectives on International Criminal Justice (Africa Legal Aid 2005) 248.

140. Dakar Declaration (n 133).

141. Monageng (n 4).

142. In comparison, 27 Asian countries sent their diplomatic delegations to the Conference. See (n 111).

143. As noted in Rome Conference Official Records II (n 111), 2nd plenary, 15 June 1998, A/CONF.183/SR.2, para 15.

144. See for instance, ibid 2nd plenary, 15 June 1998, A/CONF.183/SR.2, paras 13-15; 25th meeting, 8 July 1998, A/

CONF.183/C. 1/SR.25, paras 8-12; 29th meeting, 9 July 1998, A/CONF.183/C.1/SR.29, para 121-123.

145. See for instance, ibid 2nd plenary, 15 June 1998, A/CONF.183/SR.2, paras 69-74; 4th plenary, 16 June 1998, A/

CONF.183/SR.4, para 56; 7th plenary, 18 June 1998, A/CONE 183/SR.7 para 40-44, para 51-57, para 92-93; 8th

plenary, 18 June 1998, A/CONF.183/SR.8, Para. 52; 8th meeting, 19 June 1998, A/CONF.183/C.1/SR.8, para 1; 10th

meeting, 22 June 1998, A/CONF. 183/C. 1/SR. 10, paras 3-5; 26th meeting, 8 July 1998, A/CONF.183/C.1/SR.26,

para 43; 29th meeting, 9 July 1998, A/CONF.183/C.1/SR.29, paras 124-129.

146. ibid 6th plenary, 17 June 1998, A/CONF.183/SR.6, paras 115-118.

147. Mochochoko (n 139) 246.

148. Jalloh (n 132) 450; William R Pace and Mark Thieroff, ‘Participation of Non-Governmental Organizations’ in Roy S

Lee (ed), The International Criminal Court: the Marking of the Rome Statute (Kluwer Law International 1999) 395.

149. UN Secretary-General Kofi Annan, ‘Preface’ in Roy S Lee (ed), The International Criminal Court: the Marking of the

Rome Statute (Kluwer Law International 1999) ix.

150. Du Plessis (n 137) 6.

Kim 269

They made active engagements with their home state governments and lobbied for the adoption of

the Rome Statute.

In the post-Rome phase, under the auspices of Africa-originated intergovernmental bodies, the

Rome Statute ratification and implementation were repeatedly recognised as a policy priority of the

region. At the SADC’s conference on the ICC held in 1999, the SADC governments unanimously

declared the Pretoria Statement of CommonUnderstanding on the ICC. The delegatesrecommended

to the relevant domestic authorities for the ‘expeditious ratification’ and the use of the ‘Ratification

Kit’, a model law designed to facilitate domestic implementation.

151

The Model Enabling Act

adopted by the SADC addresses most aspects of the ICC rules that need to be incorporated into

domestic law.

152

It is non-binding, but provides a useful starting point for States to draft their own

implementing legislations. At the 2001 conference, the SADC prepared the Plan of Action with an

emphasis on enacting implementing legislation.

153

The status report on ICC ratification and imple-

mentation was also compiled at this meeting. The African Commission on Human and Peoples’

Rights (ACHPR) isanother regional body that explicitlysupported the Rome Statute ratification and

called for effective implementation of the Statute in the Member States’ legal systems.

154

The foregoing features positively affected African governments’ early decisions to join and

participate in the Rome Statute system. In contrast, during the same decade, Asian States did not

show much interest in cultivating region-wide support for the ICC. There was no proper regional

focal point that could have played a similar leadership role of the SADC or the OAU during the

negotiations. Therefore, the regional or sub-regional dialogue over the ICC mechanism was far

more limited. Particularly in the areas of security and human rights protection, the Asian region did

not have rich experiences with the substantially institutionalized, state-to-state cooperation and

lawmaking.

155

5. A way forward

The Asian region has been home to many recent or continuing incidents of violence and armed

conflicts. With attempts to establish accountability for atrocities committed in those situations,

Cambodia and Timor-Leste agreed to introduce hybrid criminal courts; countries like Bangladesh

and Indonesia created special tribunals as parts of homegrown initiatives to adjudicate interna-

tional crimes. Many other post-conflict States in Asia pursued non-prosecutorial accountability

measures. The region, therefore, is familiar with the imperative of international criminal law:

151. Pretoria Statement of Common Understanding on the ICC, adopted at the SADC Conference on Ratification of the

Rome Statute of the International Criminal Court, Pretoria (5-9 July 1999)

itor12.199908.pdf> accessed 16 August 2017.

152. SADC Workshop on Ratification of the Rome Statute of the International Criminal Court. ICC Ratification Kit –

Model Enabling Act, DC/REP/RAT/D.A.1999, adopted at the SADC Conference on Ratification of the Rome Statute

of the International Criminal Court.

153. Windhoek Plan of Action on ICC Ratification and Implementation in SADC, Conference on ICC Ratification and

Implementation for the SADC Region, Namibia (28-30 May 2001)

02_2001_WindhoekPlan.pdf> accessed 16 August 2017.

154. ACHPR, ‘27: Resolution on the Ratification of the Treaty on the International Criminal Court’ adopted at the 24th

Ordinary Session of the ACHPR (31 October 1998). The Commission conducted a follow-up examination in 2005, see

ACHPR, ‘87: Resolution on Ending Impunity in Africa and on the Domestication and Implementation of the Rome

Statute of the International Criminal Court’ adopted at the 38th Ordinary Session of the ACHPR (5 December 2005).

155. See Section 4.1.2; Tae-Ung Baik, Emerging Regional Human Rights Systems in Asia (CUP 2012) 1, 155-157.

270 Netherlands Quarterly of Human Rights 35(4)

perpetrators of mass atrocities should not go unpunished. The Rome Statute system embodies the

same belief that individuals responsible for the most heinous international crimes should be

brought to justice before international or national courts. However, more than two-thirds of

countries in Asia have not joined the ICC. Asian States Parties, the remaining one-thirds, worked

towards domestic implementation, but most of them have not adopted adequate implementation

measures, undermining the essence of the Rome Statute process.

As discussed earlier, there are three types of common experiences shared by the overwhelming

majorityof Asian countries, and thesethree domestic contextscould possibly explainwhy States have

not been centrally involved in the emergence and spread of the ICC-centered judicialisation. When

domesticpolicymakers(legislators andgovernment eliteshaving ultimate decision-making authorities

in their countries) evaluate the internal implications of participating in the Rome Statute system, the

presenceof one or a combinationof these contextsmay affect theirdecision whether toproceed further.

Expanding the role of Asian countries is highly important to building a truly international

system of criminal justice. However, at least in the short run, the emphasis on the conservative

understanding of sovereignty and non-interference principle, the domestic culture of impunity for

atrocity crimes, and the serious resource constraints in many parts of Asia would likely persist,

exerting negative impact on the already insignificant Asian involvement. It is also difficult to

change the cautious attitude ingrained in the minds of many government elites, towards the ICC’s

individual criminal accountability. What then can be done to bring about more active engagement

from this region in the long run? At a state-to-state level, Asian ICC Parties can facilitate con-

structive regional or sub-regional dialogue with non-party States sharing similar legal traditions or

having historical and cultural closeness, about a range of obstacles in ratifying the Rome Statute.

Asian States Parties may also consider establishing a regional mechanism for monitoring the status

of ratification and implementation in a regular basis. At a domestic level, this paper suggests that

well-equipped legal professionals and human rights activists can be the agents of change. These

local experts may appeal to government leaders to reconsider their dismissive stance against the

ICC. They can lobby for ratification in collaboration with the interested parliamentary members.

By referring to international rules for punishing atrocity crimes, they can denounce past situations

in which the claims of victims affected by violence were not properly heard at the national

proceedings. Finally, the law schools and research institutions in Asia can contribute to enhancing

understanding of core Rome Statute instruments and ICC decisions. Since not many Asian States

have witnessed vibrant local advocacy for this policy cause, the long-term solutions will require a

significant commitment of time and resources.

Author note

I wish to thank Damian Chalmers, Matias Hellman, Nartnirun Junngam, W. Michael Reisman, James Silk,

Bui Ngoc Son, and Kevin Tan for their advice and support in conducting this research. Views expressed and

all errors in this paper are solely mine.

Declaration of conflicting interests

The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or

publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Kim 271

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Missed opportunities in the judicialisation of international criminal law? Asian states in the emergence and spread of the Rome Statute system to punish atrocity crimes

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