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The International Criminal Court and the Asia Pacific Region

by Mariana on 04 Nov 2012 | Comments

By Bhatara Ibnu Reza*

The Asia-Pacific region remains significantly underrepresented at the International Criminal Court (ICC). Despite continued and countless efforts by civil society and some governments to ensure the region rejects impunity, only 17 states from the region have embraced the Rome Statute and joined the ICC. Of these 17 states, most have suffered serious violations of human rights and international humanitarian law. As a result of a general transitional justice plan or political and legal reform, they have come to embrace the Rome Statute and join the ICC, thus demonstrating their commitment and willingness to take responsibility for such violations and to combat any future instances of impunity for human rights violations.

Unfortunately, the majority of states in the region are still reluctant to join the ICC as they are suspicious of its jurisdiction and feel that it is a threat to their state sovereignty. However, it is worthy to note that such apprehension at the ICC often comes from the security sectors, namely military officials, who worry that the ICC will impact the stability of the country.

It is precisely this pursuit for supposed “stability” that has prompted some countries to tolerate the practice of impunity. However, upon looking deeper into issues, it becomes clear that tolerating impunity is to protect high level officials who are also perpetrators of serious crimes.  This is also the reason why many governments have blocked several initiatives seeking truth and justice for crimes committed by their governments in the past. Furthermore, there are still on-going disputes in the Asia-Pacific region that prevent many states from joining the ICC. For example, the dispute over the South China Sea which involves many countries has dissuaded them from joining the ICC at the moment. Another example is the conflict between India and Pakistan.

The current disputes and various situations in the region are extremely fragile, and any possible conflict – armed or not – would have a great impact on the region and the entire world, particularly as Asian economies are increasingly more important to the stability of global affairs. Therefore, more efforts need to be undertaken in order to ensure the respect of human rights in the region; the region must become a priority on the international agenda to ensure global stability and combat impunity.

A foreseeable and important strategy is to particularly focus on states with much economic and political clout in the region and international affairs. Countries such as China and India should be considered as main priorities. These countries have always been reluctant to join the Rome Statute system. However, civil society and academia in these states have increasingly become vocal on human rights issues, and groups such as the Indian Coalition for the ICC, the Chinese academia and other civil actors, have raised awareness through various campaigns and lobbying, which has led to a slow shift in the state of affairs of these countries vis-à-vis human rights and the Rome Statute.

Indonesia is another important state to focus efforts on, especially since it is the largest country in South East Asia and the founder of the Association of the South East Asia Nations (ASEAN). Indonesia’s embracing of the Rome Statute would provide significant momentum for other ASEAN states to join. But, to date, the government has not made any significant progress toward ratifying the Rome Statute. Since 2004, Indonesia has expressed a commitment to ratify the Rome Statute; this commitment was most recently incorporated in Presidential Regulation No. 23/2011 as part of the state’s National Action Plan of Human Rights for 2011 to 2014. Obstacles to Indonesia’s ratification include the various political transitions and government changes over the last 10 years which have led to numerous conflicts, and various human right abuses are still being committed in Indonesia. Other obstacles include issues related to the misinterpretation of the Statute by the Indonesian government, particularly as regards its sovereignty. Three key misinterpretations include the complementarity principle, the stipulation that a state is “unwilling and unable” to prosecute crimes and the fact that this interpretation is left to the discretion of the ICC, and the role of the prosecutor.

Regardless of these obstacles, the Indonesian Civil Society for the International Criminal Court continues to play an important role in advocating for Indonesia’s ratification of the Rome Statute. On the occasion of the Day of International Criminal Justice celebrated on 17 July 2012, the Indonesian coalition called on the government to ratify the Rome Statute by 2013 – ahead of the 2014 general and presidential elections so as to no longer delay the issue with another shift in government.

In addition, Malaysia is another key state to focus efforts. On March 2011, the Malaysian government announced its intention to accede to the statute, a decision that was embraced by both government and opposition parties in Parliament. Malaysian civil society, lead by the Malaysian Bar Association, plays a central role ensuring that the Malaysian government and parliament consider acceding to the statute immediately. Unfortunately, progress seems to have stalled since the Malaysian government has not deposited its instrument of accession to the United Nations Secretary-General.
It is worthy to note that in 2011, the region saw momentum with three states joining the Rome Statute: the Philippines, Maldives, and Vanuatu. Even more significant, during the Assembly of State Parties of the ICC in New York in December 2011, the Philippines’ candidate for judicial elections, the great academic Professor Miriam Defensor Santiago, was elected to serve on the judicial bench of the ICC. Behind this momentous step were the tireless efforts by the Philippines Coalition for the ICC, which fought endlessly and stubbornly to encourage their government to join the international community in fighting against impunity.

Given all these issues and recent momentum, it is important for the ICC, the international community, and civil society organizations to work together to encourage countries in the region to join the fight against impunity by embracing the Rome Statute and the ICC. ICC officials, other states parties, and civil society should work to eradicate the misunderstandings and misperceptions of the Rome Statute and the jurisdiction of Court.  Civil society is the key to making this campaign against impunity become a reality. It is time for us civil society actors throughout the Asia-Pacific region to work hand in hand to promote international justice and to stand up against any human rights abuses or any serious violations of international law.

* Bhatara Ibnu Reza is an Operational Director and a researcher of IMPARSIAL the Indonesian Human Rights Monitor. He is also an expert-member and a spoke-person of the Indonesian Civil Society for the International Criminal Court, a member of the international Coalition for the International Criminal Court – a group of at least 2,500 global organizations working to combat impunity. He works as a visiting lecturer of international law and international relations in several universities in Jakarta, Tangerang Bandung in Indonesia. He has also authored several publications that can be found in the Indonesian Journal of International Law, the National Commission of Human Rights Journal, and many local publications. He graduated from Trisakti University in international law and holds two Master’s degrees in International Relations from the University of Indonesia. He graduated with honors in International Human Rights from the Northwestern University School of Law, where he was enrolled as a Fulbright Scholar. @BhataraReza

Special thanks to Tania Deigni.

Photo: Business Indonesia
Photo: Business Indonesia