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:
a. Undertake studies and researches pertaining to the
proposed establishment of the ICC;
b. 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;
c. Identify and recommend legislative measure necessary in the
furtherance of the foregoing;
d. Serve as a forum for resolution of issues and concerns
pertaining to the establishment of the ICC;
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
a. 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.
b. 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.
c. 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 intensiveÉ[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:
a. 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.
b. 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).