Law vision
Challenges of Rome Statute ratification in Asia
Rebecca E. Lozada
ALMOST 12 years ago, in July 1998 in Rome, 120 Member States of the United Nations adopted a treaty to establish - for the first time in the history of the world - a permanent international criminal court. As Bill Pace, the convener of the Coalition for the International Criminal Court, recounts the moment, “never (was) seen such an outbreak of emotion and celebration in any intergovernmental conference. We knew the moment the treaty was adopted that we were simultaneously making and challenging history.” The treaty entered into force on 1 July 2002, after 60 States have become parties to it through ratification or accession. The International Criminal Court was created -- the first permanent and independent tribunal with jurisdiction over genocide, crimes against humanity, war crimes and, when defined at the Review Conference, the crime of aggression.
Former United Nations Secretary-General Kofi Annan said, "Our hope is that, by punishing the guilty, the ICC will bring some comfort to the surviving victims and to the communities that have been targeted. More important, we hope it will deter future war criminals, and bring nearer the day when no ruler, no State, no junta and no army anywhere will be able to abuse human rights with impunity."
Much has happened since the treaty entered into force over seven years ago. The International Criminal Court (ICC) -- now stands as the most important mechanism for human rights protection and justice for victims of the most grievous international crimes. The Court is moving forward in its crucial work to end impunity with investigations in Uganda, Central African Republic, the Democratic Republic of Congo and Sudan.
This year the international community will break new ground for the cause of international justice. On May 31 to June 11, 2010, the first Review Conference on the Rome Statute will be held in Kampala, Uganda to consider amendments to the treaty and take stock of its implementation and the impact.
In Kampala, amendment proposals will be discussed on the following:
* The definition of the crime of aggression;
* The revision of Article 124 of the Rome Statute; and
* The inclusion of the use of certain weapons as war crimes in the context of an armed conflict not of an international character.
The stocktaking at the Review Conference will consider the holistic success and impact of the Statute to date with a particular focus on the following areas:
* Impact of the Rome Statute system on victims and affected communities;
* Complementarity;
* Cooperation; and
* Peace and Justice.
We in the CICC are looking forward to the substantial participation of the countries of Asia to the Review Conference. All states have been invited to the meeting to be convened by the UN Secretary General Ban Ki-Moon.
Concerns and experiences
The Rome Statute now has the cooperation and support of 110 states parties (14 from the Asia and Pacific), and the commitment of 38 states that have signed but not yet ratified, in upholding this new system of international justice.
And yet many more Asian governments continue to raise concerns on the treaty and the tribunal it created. The concerns range from ratification's impact on national sovereignty; the ICC's non-recognition of official immunities from prosecution; the continuing human rights violations in countries in the region that may result in investigations; the required changes in the domestic constitutional and statutory rules; and financial costs.
In spite of these challenges and the low number of states parties in our region, the six states parties to the treaty from Asia provide us with the other perspectives.
In 2007, Japan became the 6th among Asian countries to join the International Criminal Court. This meant having to deal with harmonizing the national laws to the Rome Statute as well as waiving the immunity of members of the royal family to prosecution.
Korea also underwent a long process to come up with an implementing legislation to the Rome Statute. Mongolia is still working on an implementing legislation but contributes much to support work for victims.
Almost all states parties from our region have experienced and/ or continue to experience the ravages of war. Armed conflicts have made ratification or accession urgent for almost all the states parties: for Timor-Leste and Afghanistan, recent or on-going armed conflicts and international oversight; for Cambodia, the mass killings that are only now being addressed at the Extraordinary Chambers for the Khmer Rouge; and for all states parties the quest to stand with other nations in the world in moving from cultures of impunity to accountability.
While a number of Asian states face difficult circumstances that delay them from joining the ICC, the peoples of Asia support the universal ratification of the ICC. The reasons that are listed for the slow ratifications in the region are the very reasons why people campaign for the Rome Statute.
* National sovereignty must not be a cover for crimes.
* Human rights abuses must be accounted for.
* Existing armed conflicts make playing by the rules of war more urgent.
* Geopolitics is all the more reason why norms and standards must be put in place.
* The demands of ratification will pave the way for strengthening of domestic legal institutions.
Thus, there are ongoing processes in countries like Laos, Nepal, Indonesia, the Philippines, Vietnam and China.
Apart from specific advocacy work in support of the ICC, we must note also the contributions of our region to advancing international humanitarian law. Asia does not forget the victims of horrendous crimes committed in the past and those that are being committed at present. Asia has stood and will continue to stand with the rest of the world in ending impunity, upholding the rule of law and realizing international justice.
The region has hosted several international tribunals to punish the horrific acts committed in times of war: the wholly international ad hoc tribunal in Tokyo, and the mixed tribunals in Cambodia for the Khmer Rouge and in East Timor for the period of Indonesian occupation. (The two biggest international tribunals both sitting at The Hague are currently presided over by Asians, Judge Hisashi Owada at the ICJ and Judge Sang-Hyun Song at the ICC.
Asia understands and embraces the rule of law. Asian countries are advancing internal justice mechanisms. Here in Bangladesh, there are efforts to investigate and prosecute crimes against humanity and other serious violations of humanitarian law committed in 1971 during the War of Liberation. There are also efforts in the other countries to integrate or strengthen the norms and standards of the Rome Statute in national laws.
There are socio-cultural resources to combat impunity to be found in the rich common laws and religious traditions of the region. There is also mobilization of political will as the Review Conference approaches.
Bangladesh should ratify the ICC Statute (in fact, Bangladesh has ratified it on 23 March 2010 after writing this paper) which would enable Bangladesh to participate in the highly important Review Conference of the ICC as a states party, and thus engage in the process leading to the adoption of a definition for the crime of aggression and celebrate the advances in international law with other states parties. Moreover, as a State Party, Bangladesh will also be able to participate in judiciary and other elections at the Court. All these gives much hope for more Asian countries to support the ICC as the logical step forward in achieving the imperatives for peace and justice.
Bangladesh's support for the Rome Statute and its implementation in the ICC is vital for further advancing this new system of international justice. Ratification has been another fulfillment of the commitment of the Government of Bangladesh to uphold human rights as is enshrined in the Constitution and exemplified in Bangladesh's commitment to UN Peacekeeping Missions. We in the Coalition for the ICC look with great anticipation to Bangladesh breaking new ground for international justice with the world community at the Review Conference and beyond the Review Conference.
The author is Program Associate, CICC-Asia. This paper was prepared for the Advocacy Meeting on the “Ratification of the Rome Statute of the ICC by Bangladesh”, organised by Odhikar on 20 March 2010 at the Spectra Convention Center, Dhaka
