The International Criminal Court and its effect on Asia

Basil Fernando, Executive Director, Asian Legal Resource Centre

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

The Non-Aligned Movement?which brought together countries from Asia, Africa and the Arab world during the mid-twentieth century?was intended as a united voice of disparate nations pursuing interests that did not correspond to those of the superpowers. After initial enthusiasm, however, it died away. Similar alliances have emerged from time to time. Presently, there is a growing movement to address global disparities of wealth as a matter of international justice. Without resources, many societies are unable to combat absolute poverty and disease, including HIV/ AIDS. Over time, these inequities are increasingly being seen as gross human rights abuses subject to international law. Sometimes a shift in perspective is as important as the creation of a new institution, because it may contribute more effectively to improved international relationships.

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

For the historically ‘weaker continents’, the emergence of the International Court is much more important even than the emergence of the United Nations, though they are interrelated. The reason is that the United Nations is basically a political institution, which constantly gives rise to political game-playing, where the more powerful have advantage over the less powerful. The effect of the ICC is substantially different, as being a judicial institution, by its very nature it will exclude power politics.

Therefore, international equality is no longer based purely on political considerations. International issues that had previously been subject only to political pressure may now become subject to judicial scrutiny. That a juridical element has entered into the equation opens new opportunities for the ‘weaker’ parties of the United Nations system. Some of these opportunities, and possible consequences, are suggested below.

First, the possibility of looking into the past from a juridical position?which suggests that if something happens again there now exists a very different way of dealing with it?creates a new intellectual climate. The ability to look back to the past acts of colonial powers?such as massacres, torture, genocide, war crimes, and crimes against humanity?as crimes that if repeated will end up before the ICC suggests a change in mentality of historical importance.

Secondly, the pursuit of crimes recognised in the Rome Statute through an international judicial institution teaches a lesson on the limits of what can be done and not done where and when politically expedient. Popular realization that even the highest in power cannot escape justice will inevitably lead to a more optimistic view of political life and social change. Such a shift in view has great potential to generate creative energies and encourage further constructive change. Thus, while at this time only a limited number of people globally are actively involved and interested in its development, mass support and interest is likely to follow. As local movements grow in support of international justice, it will be much more difficult for powerful elites to halt the trend. Even the few international tribunals that have been established in recent times, and some cases before domestic courts?such as the Pinochet case in Britain?have had a powerful effect. The prospect of criminal sanctions for those violating international law is no longer a fantasy. Rulers may be increasingly careful in their actions, and human rights defenders are more determined to record violations accurately, improve documentation and acquire greater skills in preparing evidence, for use at an international tribunal. Thus, an entirely new culture of justice is likely to emerge, both nationally and internationally, in the near future.

Thirdly, the ICC can also give rise to more consensual forms of governance. Citizens and states may cooperate in new and more invigorating ways when both are aware of the limits to the use of power. What is defined by international law and implemented by an international court can have a powerful effect on the internal management of a nation. In particular, the possibility that internal jurisprudence may be developed in keeping with international law is now more likely than before.

Sri Lanka is one country where an international tribunal could play a significant role and address domestic frustration over the failure of the state to prosecute in the case of a crime against humanity. There, thousands of people are known to have disappeared at the hands of state agents from the late 1980s to early 1990s. The United Nations Working Group on Enforced or Involuntary Disappearances noted in 1999 that

Three regional Presidential Commissions of Inquiry into Involuntary Removal of Persons set up in 1994 submitted their reports to the president of the republic on the 3 September 1997. The commissions investigated a total of 27,526 complaints and found evidence of disappearances in 16,742 cases. A further 10,135 complaints submitted to the commissions by relatives and witnesses remained to be investigated by the present (fourth) Presidential Commission of Inquiry.

The Final Report of the Commission of Inquiry into Involuntary Removal and Disappearance of Certain Persons (All Island) (Sessional Paper No. I -2001) dated March 2001 stated that it had been given 10,136 complaints to investigate in which “no investigations [had] commenced” by earlier commissions. The Final Report also stated that at least a further 16,305 cases had been brought to the Commission’s attention that it was not empowered to investigate (ch. VII, p. 45), making the number of disappearances in Sri Lanka one of the largest in any country in modern times. However, except in a few cases, no adjudication has occurred. Nor has the larger issue of the causing of widespread disappearances been seriously considered.

The Asian Legal Resource Centre has consistently submitted written statements of concern regarding disappearances in Sri Lanka to the United Nations Commission on Human Rights, but to date has not achieved tangible results. In its most recent statement, to the fifty-ninth session of the Commission, the Asian Legal Resource Centre observed that

While this gross violation of human rights has been assessed, to date, no measures have been proposed to adequately deal with it, neither by international nor domestic agencies. The lack of genuine initiatives by the authorities to prosecute the perpetrators of enforced and involuntary disappearances has demoralised the families and loved ones of victims. Such reluctance to act according to law and punish the perpetrators has also reinforced the general loss of faith in the rule of law and law enforcement agencies in Sri Lanka, especially the Department of the Attorney General, which acts as the chief prosecuting authority. Meanwhile, as the government of Sri Lanka has ignored most recommendations coming from the Working Group and also all of the domestic Presidential Commissions of Inquiry?which even named some of the persons to be investigated further and prosecuted-disappearances have continued; the National Human Rights Commission is investigating new cases.

Cambodia is another country with a judicial system desperately in need of international models and support. Despite ten years having passed since the United Nations sponsored elections in Cambodia, there has not been even an inch of progress in reforms to the law enforcement system there. This failure is the number one obstruction not only of Cambodian democracy but also its return to the rule of law. Anarchy and chaos prevail in Cambodia as it lacks a foundation upon which to cement an orderly society. Although the Asian Legal Resource Centre has made frequent urgent calls to prioritise police, prosecution and judicial reforms there, these have fallen on deaf ears. To date neither a proper Penal Code nor Criminal Procedure Code exists.

The international community, which has spent time and resources aiming to set up an international court to try former Khmer Rouge leaders, has done nothing to help improve the local ‘justice system’, which deprives every living Cambodian the possibility of enjoying a society that respects the law. Rather than concerning itself with such a tribunal, the international community owes it to Cambodia first to reflect upon the failures of the mission undertaken by the United Nations ten years ago, which aimed to build a liberal democracy there, but fell far short of its goal. This failure should be acknowledged but regarded not as a matter of shame so much as a question of integrity for the United Nations and other international agencies.

Many Asian countries are still developing the domestic principles and means to ensure the rule of law. This can be difficult without models to emulate. A functioning and procedurally just international court can act as a model for local courts. As all the cases that come before the ICC will receive colossal publicity, it is likely to play on the imagination of people everywhere. The large impression that it will create may contribute to similar practices in local courts, thus enhancing the rule of law everywhere.

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This is the edited text of a paper presented at the “International seminar on major issues relating to the International Criminal Court”, held in Haikou, Hainan, People’s Republic of China, 9¬≠ 12 February 2003, organized by the Research Center for Criminal Jurisprudence at Renmin University, Beijing, and the Asian Legal Resource Centre.