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FOCUS March 2002 Volume 27

Asian Campaign on the Rome Statute Ratification*1

HURIGHTS OSAKA

As more and more States ratify the Rome Statute, will Asian States follow suit? In the Pacific, Fiji, New Zealand, Marshall Islands, and Nauru have already ratified the Rome Statute.

Cambodia's National Assembly approved in late November 2001 the bill for the ratification of the Rome Statute that will create the International Criminal Court (ICC). This approval however needs the concurrence of the Senate and the signature of the King to complete the ratification process. Thailand and the Philippines are the two other countries in Southeast Asia that are expected to ratify the treaty soon. In South Asia, only Bangladesh is expected to ratify the treaty. Whether or not these countries will become part of the first sixty countries ratifying the Rome Statute (to make it effective) is still to be seen.

Thai NGOs along with the Criminal Law Institute of Thailand under the Office of the Attorney General, and the Thai Working Group for an ASEAN Human Rights Mechanism (TWG) held a national workshop entitled "The International Criminal Court and Thai Society" on 24-25 December 2001 in Bangkok. NGO workers, government officials, lawyers and other individuals attended the conference. An inter-agency committee formed by the government is at the last stage of review of the treaty. It will send its findings to the Thai parliament later on.

In the Philippines, the Inter-Agency Task Force on the Establishment of the International Criminal Court, created on 24 March 1998 by the government (Administrative Order No. 387 series of 1998) continues to meet. It reportedly supports the ratification of the Rome Statute. This Task Force is composed of the Department of Foreign Affairs, Department of Justice, Office of the Solicitor General, Office of the Executive Secretary/Office of the Chief Presidential Legal Counsel, Department of Interior and Local Government, and the University of the Philippines - College of Law. It has the following functions and duties:

  1. Undertake studies and researches pertaining to the proposed establishment of the ICC;
  2. Formulate policy recommendations to serve as inputs in the review and consolidation of the Philippine Government's position in the Preparatory Committee meetings at the ICC and the United Nations General Assembly;
  3. Identify and recommend legislative measure necessary in the furtherance of the foregoing;
  4. Serve as a forum for resolution of issues and concerns pertaining to the establishment of the ICC;
  5. e. Pursue other related functions which may be deemed necessary by the President.

Philippine NGOs are lobbying Philippine legislators to hasten the process of ratifying the Rome Statute.

In Indonesia, a national workshop on ICC and an international conference on crimes against humanity were reportedly held in June 2001 calling on the government to ratify the Rome Statute. The KOMNASHAM along with the NGOs have been lobbying for the ratification of the treaty. Several serious problems of the country may however get more attention from the government at present.

A national workshop on ICC held in November 2001 in Vientiane led to the plan to form a working group on ICC. This working group will send proposals for the ratification of the treaty to the Laotian Ministry of Justice and to the parliament. The government has not so far made a commitment to ratify the treaty.

Working groups on ICC have reportedly been formed in Singapore and Brunei. A workshop will be held in Singapore in 2002.

In Northeast Asia, South Korea and Mongolia are seen as possibly able to ratify the treaty in the near future. It is reported that the South Korean government has initiated discussions on the issue. Korean NGOs, on the other hand, are doing lobby work and public awareness campaigns.

In Mongolia, some influential members of Parliament as well as the Prime Minister already officially referred in 2001 the Rome Statute for ratification in the Parliament.*2 The newly-established National Human Rights Commission of Mongolia is planning some activities to promote the ratification of the Rome Statute during the first quarter of 2002.*3 On 22-23 January 2002, the Center for Human Rights and Development (CHRD) along with the Amnesty International in Mongolia, Asian Forum for Human Rights and Development, National Human Rights Commission, Ministry of Justice and Internal Affairs and Ministry of Foreign Affairs organized a "National Workshop on Human Rights and International Criminal Court." The workshop discussed the ICC history, crimes covered by ICC, gender justice, mechanisms and the process leading to the establishment of the ICC, role of victims/survivors, ICC and Mongolian National Law, and prospects for ratification of the Rome Statute. Representatives of the organizing institutions as well as those of the Constitutional Court, State Great Khural (Parliament) Chancellery, Mongolian Revolutionary Party, Mongolian National Democratic Party, universities, and NGOs attended the workshop.

The Japan Network on International Criminal Court (JNICC) continues its dialogue with government officials and legislators on the ratification of the Rome Statute. It is considering the submission of a proposal on the ratification of the treaty that would not require the enactment of a new law (specifically on the conduct of war). Other NGOs such as the Japanese section of Amnesty International, on the other hand, are continuing with their media campaign and other activities on the ICC. The Japanese section of Amnesty International held in March 2002 in Tokyo a meeting entitled "ICC Countdown" where presentations on the Holocaust, gender justice and child rights were made. Japanese NGO representatives see the need for an ICC campaign that involves many more NGOs.

China is reportedly not interested in ratifying the Rome Statute. It is also reported that a group of Chinese academics is organizing small workshops on the ICC at the Beijing University.

In South Asia, India seems to be in almost the same situation as that of China.

With the change of government leaders, it may take time before substantive discussion on the ratification of the Rome Statute takes place in Bangladesh. In Nepal, the new emergency situation may prevent the government from giving attention to the Rome Statute. A national workshop, however, was held in 2001 where members of the ruling political party made initial commitment to sponsor in the parliament the ratification of the treaty.

In Central Asia, Kyrgyztan, and Iran, have signed the Rome Statute. It is hoped that they will join Tajikistan in ratifying the treaty later on.

Asian NGOs campaigning for the ICC have already translated the Rome Statute into eight languages, namely, Chinese, Japanese, Korean, Bahasa Indonesia, Thai, Lao, Filipino and Khmer. Mongolian and Vietnamese versions are still being prepared.

A Regional Experts' Meeting on the International Criminal Court was held in Bangkok on 11-12 September 2001. This meeting reviewed the status of international human rights treaties in Asia, some initiatives in addressing the problem of impunity in the region, and the regional campaign for the ratification of the Rome Statute. It was attended mainly by NGO representatives.

On 16-18 October 2001, the Experts Conference on International Criminal Court was held in Manila with the participation of European experts and government representatives. Experts involved in the drafting of the Rome Statute explained the various aspects of the treaty. Officials of the Ministries of Justice or Offices of the Attorney General, and Judges of the High Courts represented countries from Southeast Asia and the Pacific.

This conference aimed to provide a "uniform level of familiarity and knowledge of the ICC among senior government officials in Southeast Asia and a number of Pacific States." The organizers further assert that the idea of holding the conference "stems from an assumption that only when a thorough understanding of the statute - its implications on various constitutions and judicial systems in the domestic level - will there be a groundswell of support for the immediate establishment of the International Criminal Court."

Prospect of ratification in Asia

The ratification of the Rome Statute by countries in Asia will certainly hinge on the way domestic laws are linked to the provisions of the treaty. The countries that have ratified the Rome Statute faced the same issue. In the context of New Zealand, where existing domestic laws cover some of the provisions of the Rome Statute, three options were available:*4

  1. To do nothing more

    It could be argued that it was not necessary to create more [offences]. There were existing offences that could be relied on. Any new offences were unlikely to be used in practice (the offence in the Geneva Conventions Act has never been used). If a situation did arise, and there were no appropriate domestic offences, the ICC would have jurisdiction to deal with the case. In other words, New Zealand could take the risk that a situation might arise where it had no choice but to defer to the ICC.

  2. To create new offences in same terms as the Rome Statute

    This option involves adopting the same approach as in the Geneva Conventions Act. One advantage of this approach is that it ensures that the domestic offence is identical to the international crime and, therefore, that a New Zealand prosecution could lie for all the conduct covered by articles 6 to 8. On the other hand, crimes in international instruments tend to be drafted with less precision than domestic offences. Generally speaking, the more precision the better the criminal legislation because the defendant would receive the benefit of any ambiguity.

  3. To create new offences after a general review of this area of law

    This option involves the creation of new offences but, rather than simply replicating the crimes in the Rome Statute, offences that are more 'indigenous' in nature could be created. This need not involve substantive changes, if appropriate. Articles 6 to 8 [of the Rome Statute] include a number of some compromises. A review might result in new offences being devised that better reflect New Zealand's view of this area of law, for example, by extending or changing the scope of some offences and removing the vagueness or uncertainty in others.

    New Zealand eventually chose option b because a review (option c) would "take time and be resource intensiveノ[and] any changes proposed to be made to particular crimes could themselves lead to debate." Thus option b facilitated New Zealand's early ratification (September 7, 2000) but does not "preclude option c being considered in the longer term, especially if other states take that approach in their implementing legislation."*5

    Legal experts in Mongolia, on the other hand, believe that since many of the crimes under the Rome Statute are covered by the new Mongolian criminal law (enacted in January 2002), the ratification of the treaty would not be difficult.*6

    In Japan, government as well as legislative circles seem to hold the view that ratification of the Rome Statute will only occur if relevant domestic laws have been enacted. It is thought that a law regarding the conduct of war would be needed. Japanese NGOs do not subscribe to this view since enacting this law may mean requiring an amendment of the Constitution (specifically Article 9, which "forever" renounces war as a sovereign right).*7

    In a State where the legal system is still in a stage of development, ratification of the Rome Statute poses a difficulty. This is a view expressed about Laos. It is feared that the Laotian government may not be able to comply with the obligations under the treaty due to many legal issues regarding domestic laws and the jurisdiction of the Laotian courts over crimes covered by the Rome Statute.*8

    Other legal issues can be raised by Asian States regarding the ratification of the Rome Statute. But with fifty-six States as of March 2002 ratifying the Rome Statute, the pressure to become part of the first sixty ratifications builds up.

    This is the challenge facing the campaign for the ratification of the Rome Statute in Asia.

Endnotes

  1. Some portions of this article are based on a report dated 29 November 2001 sent by Ms. Evelyn Serrano, Asian Coordinator of the NGO Coalition on ICC, to the coalition's main office.
  2. See S. Narangerel, ICC and the Mongolian National Law, paper presented at the National Workshop on Human Rights and International Criminal Court (Ulaanbaatar, 22-23 January 2002).
  3. Letter of S. Tserendorj, Chief Commissioner, National Human Rights Commission of Mongolia, dated 2 January 2002, to Jefferson R. Plantilla (HURIGHTS OSAKA).
  4. Juliet Hay, Ratification and Implementation of the Rome Statute of the International Criminal Court - The New Zealand Experience, paper presented at the Experts Conference on International Criminal Court (Manila, 16-18 October 2001).
  5. Ibid.
  6. See Narangerel op cit. and S. Tserendorj, Prospects of Ratification of Rome Statute by Mongolia, paper presented at the National Workshop on Human Rights and International Criminal Court (22-23 Ulaanbaatar, January 2002).
  7. The Japanese Constitution, which took effect on May 3, 1947, provides in Chapter II, Renunciation of War, Article 9, the following:

    1. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
    2. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

    These texts are taken from Hiroshi Oda, ed., Basic Japanese Laws, Oxford University Press (Oxford: 1997), page 5. A recent newspaper report states that one political party (Minshuto) is proposing an amendment of the preamble and Article 9 of the Constitution or their reinterpretation in order to allow Japan to actively participate in the UN peacekeeping operations. ("Minshuto advocates review of Article 9," The Daily Yomiuri, 20 December 2001, page 3) The issue of amending the constitution, including Article 9, has been raised by several Japanese politicians and some sections of the Japanese media.

  8. See The Legal Framework of the Lao PDR and the International Criminal Court Justice System, paper presented by the Laotian government representatives at the Experts Conference on International Criminal Court (Manila, 16-18 October 2001).

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