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FOCUS September 2001 Volume 25

International Criminal Court and Asia

HURIGHTS OSAKA

When the Rome Statute for the International Criminal Court (popularly known as the Rome Statute) was adopted in July 1998, one hundred twenty States voted in favor (out of one hundred sixty participating States). Several Asian States voted against. When the signing of the treaty was closed on December 30, 2000, less than twenty Asian States have signed. As of the present (September 2001) only one Asian State has ratified the treaty.

A campaign for the ratification of or accession to the Rome Statute by a significant number of States in Asia is daunting. It is the only region in the world where the rate of ratification/accession to the Rome Statute is very low (one ratification out of more than thirty countries). The global rate of ratification/accession, however, is high with thirty-seven States already parties to the Rome Statute within a period of three years. Twenty-three more ratifications/accessions are needed to make the Rome Statute enter into force. The prospect of a significant number of Asian states being able to join the first sixty States to become State Parties to the Rome Statute does not seem so bright.

Will the Rome Statute enter into force without Asia?

This is the question discussed in the Northeast Asia Workshop on the International Criminal Court and its Implications to East Asia. The workshop was held from 11 to 14 August 2001 in Hong Kong. Participants from Hong Kong, Taiwan, mainland China, South Korea and Japan attended the workshop, which aimed to launch a campaign for the ratification/accession to the Rome Statute of the International Criminal Court (ICC) in Northeast Asia.

The workshop opened with the remarks from the Consul Generals of Netherlands and Norway. They emphasized the need not only to support the establishment of the ICC but also to help strengthen it. The Rome Statute is the best that can be had at present, but there is still room for improvements. What is important is putting up a system that will not allow impunity to reign as it did during the Cold War era.

Invited resource persons presented the main features of the Rome Statute. They explained the background of the provisions of the treaty. They emphasized that the drafters of the treaty took into consideration the experiences of the Nuremberg and Tokyo trials as well as the International Criminal Tribunals for Rwanda and the former Yugoslavia.

The Rome Statute

The Rome Statute contains numerous principles that address the need to make individuals accountable for committing serious crimes, and provide reparation to the crime victims. It establishes a permanent international criminal court. Netherlands will host the court though its trials may be held elsewhere.

The serious crimes covered by the Rome Statute refer to the:

  1. crime of genocide;
  2. crimes against humanity;
  3. war crimes; and
  4. crime of aggression.

With the exception of the crime of aggression, the Rome Statute identifies the acts that constitute the serious crimes based on existing international treaties and international customary laws. The definition of the crime of aggression is still subject to agreement by the State Parties. The Rome Statute will be accompanied by "collateral documents" on elements of the crimes, rules of procedure and evidence, and administrative matters. Final drafts of these documents are either finished or on final stages of drafting. The sixty or so State Parties that ratify or accede to the Rome Statute will adopt the collateral documents as soon as the treaty enters into force.

The ICC is independent from the UN. But it will enter into an agreement with the UN to establish formal relationship.

Several features of the Rome Statute are worth mentioning:

  1. As a general rule, the ICC will not take jurisdiction of a case unless either the accused is from or the crime is committed in the territory of a State Party or State that consented to the treaty;
  2. National remedies are respected and thus only when the national emedies are unavailable or inadequate that cases may be brought>to the ICC. An act that has been tried in a national court will not be covered unless the proceedings of the court violate the due process principles of international law;
  3. Only crimes committed after the treaty entered into force are covered;
  4. Gender crimes (such as rape) are included in acts constituting the serious crimes;
  5. Complaints maybe filed by governments, victims and NGOs. The Prosecutor's decision (whether to investigate or not) is subject to review by a pre-trial chamber (whose decision is not subject to appeal);
  6. The accused will not be tried in absentia, will be afforded defense counsel, and exercise other rights;
  7. Death penalty will not be imposed;
  8. Children will not be prosecuted as provided for in the Convention on the Rights of the Child;
  9. Victims are entitled to reparation. The court has the power to issue necessary orders to compensate and rehabilitate the victims.

States that become party to the Rome Statute are obliged to cooperate with the ICC. They may be asked to provide information on the cases.

Northeast Asia scenario

Among the countries in Northeast Asia, only Mongolia and South Korea have signed the Rome Statute. It is reported that a bill for ratification of the treaty has already been filed in the Korean legislature.

China and Japan, on the other hand, voted against the treaty. It is not likely that China will reverse its stance in the near future. Japan, however, is reviewing the treaty at present.

With this background, the campaign for the ratification or accession to the Rome Statute in Northeast Asia faces a difficult situation.

A few NGOs in Japan have started their campaigns. Two initiatives are known to exist. One is the Japanese Network on International Criminal Court (JNICC) organized by the Japan chapter of the World Federalist Movement in 1997. It held public meetings, published leaflets, created a website on ICC and sought media coverage of the Rome Statute. It also lobbied high officials in the Ministry of Foreign Affairs of Japan to support their petition for Japan to become a party to the treaty.

[ Participans in the Hong Kong workshop in ICC ]

The Japan section of Amnesty International held study meetings on the Rome Statute, and circulated information on ICC through its publication. It also launched a media campaign on the issue.

Both initiatives are in Tokyo. No other initiatives are known to exist in other major cities of Japan.

In South Korea, the ICC seems to be largely unknown. There is no report of any organized campaign to lobby the government to hasten the process of ratifying the Rome Statute.

While there is no campaign so far in China regarding the ICC, campaigns are being planned in Hong Kong.

The Taiwan section of Amnesty International launched a "second-country lobby. " It adopted some countries to which it directed petitions for ratifying the treaty. It sent representatives to the embassies of these countries in Taipei to lobby for the ratification of the treaty by their respective States.

Two unique campaigns

There are two types of ICC campaigns that have unique characteristics. The participants from Taiwan stressed that since Taiwan is not a member of the United Nations, there is no possibility for it to become a party to the Rome Statute. But they still would like to campaign on the ICC because they want Taiwanese laws to follow the principles of the Rome Statute. They still find the need to make the laws in Taiwan compatible with international human rights standards. Their "second-country lobby" helps the Rome Statute ratification campaign in general. They have been receiving official responses on their petitions sent to various governments. Though they do not necessarily bind governments, the official communications can still be used to pressure for ratification.

Hong Kong, being a special administrative region of China, cannot also become a party to the Rome Statute. It may however be given a special permission to become a party to or consent to be involved in the treaty by China. In any case, participants from Hong Kong stressed the need for China to become a State Party to the Rome Statute, or let Hong Kong be a party to the treaty in some way. Hong Kong, being a financial and commercial center in the region, is most likely to have visitors who are being investigated by the ICC Prosecutor for committing serious crimes. They may also have funds in banks based in Hong Kong. In those cases, the cooperation of the Hong Kong government with the ICC is important.

The cases of Taiwan and Hong Kong show two variations of the ICC campaign. They illustrate the value of subscribing to the Rome Statute principles even though one cannot become a State Party to the treaty. They also stress the importance of incorporating the Rome Statute principles into the domestic legal system in order to make any person who commits serious crimes accountable.

Prospect of a Northeast Asia campaign

There is still a lot of work to do before Japan and hopefully China become parties to the Rome Statute. South Korea and Mongolia still need pressure to assure speedy ratification of the treaty. Thus a northeast Asia campaign is as important as in other subregions of Asia.

Similar campaigns have been launched in South and Southeast Asia.

It is noted in the workshop that the Rome Statute is basically agreeable to many governments. The main issues may lie on the revision of existing laws or enactment of new ones to make them adhere to the Rome Statute. Thus an ICC campaign will mainly be aimed at making States agree to do the necessary legislative measures in order that they will become parties to the treaty.

The workshop was jointly organized by the Asian Human Rights Commission (AHRC), the Asian Forum on Human Rights and Development (Forum-Asia), and the Hong Kong Human Rights Monitor. For more information contact: Asian Human Rights Commission (AHRC), Unit 4, 7 Floor, Mongkok Commercial Centre, 16 Argyle Street, Kowloon, Hong Kong, ph (852) 26986339; fax (852) 26986367;

e-mail:ahrchk@ahrchk. org


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