Among the 123 countries that are state parties to the Rome statute of the International Criminal Court, it is notable that only 19 are from the Asia-Pacific region. Absent from these 19 are both China and India, among the continent’s largest, most populous, and influential states.
Despite the seeming disengagement, however, the relations between the International Criminal Court and the Asia-Pacific have been diverse and continue to have tangible direct and indirect impact in the region.
From the beginning of the Rome conference, the complex and intricate negotiations that led to the eventual creation of the court, various Asian states have took widely differing positions on many of the finer details of the mandate of the court. This pattern has not changed in the two decades since.
The ICC is currently conducting preliminary examinations on the situations in Bangladesh, Iraq, Afghanistan, the Philippines, and Palestine. Preliminary examinations are conducted to establish if there is reasonable basis to proceed to an investigative stage.
In early September, the court ruled that it had the jurisdiction to investigate the alleged deportation of the Rohingya people from Myanmar to Bangladesh as a potential crime against humanity. This was due to Bangladesh being a state party and the alleged crimes having at least partially been committed in its territory.
In Iraq, the court has used personal jurisdiction to investigate alleged crimes committed by nationals of the United Kingdom, which is a state party, in the context of the Iraq conflict.
In Afghanistan and Palestine, the multilayered nature of the potential jurisdiction of the court over certain situations, territories or people mean that it is likely the court´s investigation will extend to crimes committed by both domestic and foreign individuals.
South Korea and Japan have been the two Asian states that have significantly engaged with and supported the ICC ever since the early days of the Rome process and both states have contributed significant financial and operational support to the ICC’s budget and governance.
South Korea signed the Rome Statute in early 2000 and ratified it in 2002. There have been prominent judges at the court from South Korea, including former ICC President Song Sang-Hyun and O-Gwon Kwon, the current President of the Assembly of State Parties, the management and legislative body of the court.
In June 2014, the court decided to not to pursue investigations based on the available information, after conducting a preliminary examination on the shelling by North Korean military of the Yeonpyeong islands, belonging to South Korea and the sinking of the South Korean naval ship ROKS Cheonan. The court concluded that a crime for which the court has jurisdiction to pursue an investigation was not committed, considering the military nature of the targets in the island and the inability to establish the “clearly excessive” character of the engagement.
Likewise, the examination further concluded that since the Cheonan was a naval vessel carrying military personnel, it meant that this was not a war crime, which is generally committed against civilians.
Japan ratified the treaty in 2007. It has significantly supported the ICC financially, usually being among the largest contributors annually, and passing new national legislation to make certain procedural crimes under the Rome statute, also illegal under Japanese law.
Despite its active participation in the Rome process, China did not become a state party, failing to sign or ratify the treaty. The nation’s representative stated at the end of the Rome conference that the “text violated the principles of state sovereignty and the Vienna convention on the Law of Treaties,” by creating the ability to impose obligations on countries that had not agreed to be state parties.
Chinese engagement since then with the court has been contradictory, passive, and seemingly improvised on an ad hoc basis. It supported the UN Security Council referral of the situation in Libya to the court in 2011, while vetoing, along with Russia, such a referral on the situation in Syria in 2014.
Much like the situation with India, there were concerns that allegations of domestic repression could be a possible focus for the court.
India has consistently objected to “armed conflict not of an international character” being included while defining war crimes in Article 8 of the Rome Statute. The possibility that historically delicate and contentious conflicts in various internal regions especially in Kashmir and various northeastern states could be examined and investigated, has led to opposition from the Indian political sphere.
India has also expressed its contentions with the power afforded to the UN Security Council, which the country´s diplomats have argued is excessive and prejudicial to the objectivity of the court.
This approach is in contrast to the nation’s attitude to various UN Security council monitored peacekeeping missions, to which India has traditionally been among the largest contributors of troops and other personnel for decades.
Despite this pattern with the International Criminal Court, Asian nations have been more supportive of the UN ad hoc tribunals created to investigate and prosecute the international crimes in the former Yugoslavia and Rwanda. Nations that are not state parties to the ICC such as China and Pakistan have even had judges in these tribunals.
There have been also courts or tribunals with special characteristics created to investigate crimes of an international nature, applying international law or with international judges in Timor-Leste (Special Panels of the Dili District Court), Cambodia (the Extraordinary Chambers in the Courts of Cambodia), and Lebanon (Special Tribunal for Lebanon, based in The Hague).
Another Asian state that played a crucial role in the shaping of the Rome Statute was Singapore. During the negotiations, Singapore made a proposal that considerably reduced the influence of the Security Council with relation to potential prosecutions by the court.
Originally, the five permanent members had wanted “affirmative approval” before the prosecution process could begin.
However, after intense negotiations, “the Singapore compromise” or what became Article 16 of the Rome statute that allows the Security Council to defer potential investigations or prosecutions for a fixed period was instead agreed on. Despite this involvement, Singapore is not a state party of the ICC.
While the deterrence element of the existence of the court continues to be greatly debated, the influence of the court in the normative development of modern International Criminal Justice is significant.
This is now a process where the wider Asian voice has been largely absent due to the lack of engagement in this context.
While International Criminal Law continues to develop substantially and rapidly, challenges of acceptance, effectiveness and universality remain.
The writings of Sun Tzu in ancient China and Manu in ancient India are regarded to be among the earliest texts dealing with conduct during armed conflict. Elements of the treatment that was to be afforded to the wounded, captured soldiers, non-combatants and religious institutions were discussed and regulated in these texts.
For a region with a long, varied and diverse history and tradition of regulating conduct during hostilities to be so significantly absent in this process, in such a manner, is leading to a loss of important voices and perspectives that can enrich the nuances of the growth of this crucial area of law and the wider fight against impunity.
Kiran Mohandas Menon is currently Project Officer at the International Nuremberg Principles Academy in Nuremberg, Germany. Views reflected are his own.