A collaboration between CIL Dialogues and AsianSIL Voices

[This blogpost is based on a talk for the NUS Centre for Asian Legal Studies in November 2022, recording available here.]

The fact that there are low ratifications of the Rome Statute in the Asia-Pacific region—with only 19 States Parties to the Rome Statute—is certainly cause for concern. Coupled with the fact that there are, unfortunately, multiple examples in the region of mass atrocities that need to be addressed and require accountability. These include Afghanistan, Myanmar, and the Philippines. The ratification of the Rome Statute in this region is a tale of ups and downs—withdrawals (the Philippines), and “so close yet so far” (Malaysia). The other elephant in the room is that India and China—collectively representing about 1/3^rd of humanity—are not signatories and are unlikely to sign up anytime soon. However, this post does not interpret international criminal law (ICL) as only restricted to the International Criminal Court (ICC) because there is a critical need to look beyond a single institution or treaty, and to look at the broader options available for accountability at large.

The somewhat cliched arguments in relation to this region in particular—as to why states are not signatories—range from the need to protect sovereignty, to the significance of ‘Asian values’, to allegations of neo-colonialism of international institutions. These arguments do little to engage with the substance of why the Rome Statute is relevant and why accountability is important, that we have examples of international crimes in our midst in the region which have not been addressed.

The political environment in our region includes an unhealthy reliance upon an all-encompassing notion of sovereignty, inevitably at the cost of the individual and human rights. The notion of imposed justice, that is being forced upon an unwilling populace, is one that is deployed frequently. This was brought up, for instance, at the Philippines Supreme Court in the arguments regarding the constitutionality of the withdrawal from the Rome Statute. Based on my courtroom observations, I commented at the time in an Opinio Juris post that:

The perception that an investigation by the ICC would impugn the legal system clearly weighed on the bench, with the preference expressed for greater self-reliance, as well as the Philippine judiciary not being ‘second class’. The relevance of other mechanisms to prevent impunity, such as the creation of ad-hoc international tribunals, was also mooted by the bench. According to the Solicitor General, there was no violation of international law and no need for the ‘interference of foreigners’ in the well-functioning system of justice in the Philippines.

Regardless, there are pathbreaking legal initiatives underway to ensure accountability, despite the state response. In the situation at the ICC relating to Bangladesh/Myanmar, international crimes committed after 1 June 2010, predominantly crimes against humanity encapsulated in Article 7 of the Rome Statute—deportation, other inhumane acts, and persecution—are under the microscope. These crimes were committed partly on the territory of Bangladesh, and this is the first instance of the exercise of jurisdiction by the ICC in relation to a state party and non-state party. This is a legal landmark, and the Pre-Trial Chamber authorized the opening of the investigation on 14 November 2019. Lest we forget, in addition, there are also other international legal proceedings that are relevant, at the International Court of Justice based on the Genocide Convention, as well as the establishment of the Independent Investigative Mechanism for Myanmar, tasked to collect evidence for future use by a court.

In addition to these efforts, there is a relatively new avenue for accountability being explored more actively now. This is the series of cases that are being initiated in domestic jurisdictions, using the principle of universal jurisdiction. There are multiple cases across jurisdictions—in particular, related to the Syrian conflict—in various courts predominantly across Europe. (A yearly compilation—Trial’s Universal Jurisdiction Annual Review—provides a comprehensive snapshot of these cases and the progress achieved in the quest for criminal accountability.)

However, we do need to interrogate the premise of ‘universality’ inherent in universal jurisdiction. The potential for such prosecutions within the ‘global south’ needs to be examined in more depth, hitherto relatively unexplored. There is a slew of potential new cases in relation to Myanmar—some in Asian jurisdictions—which bear close watching in this regard. But we also need to be clear eyed about why there is this imbalance and a lack of ‘universality’ in universal jurisdiction. There are significant barriers to the exercise of universal jurisdiction in these jurisdictions. These are predominantly two-fold, the legal and the political environment.

When examining the legal environment, the question is whether this is conducive or inhibiting towards the exercise of universal jurisdiction in the jurisdiction. There is an overwhelming lack of a conducive ‘legal infrastructure’ for international crimes—this could be lack of domestication of international crimes, non-signatory status regarding international crime treaties. Furthermore, there are no supra-national legal institutions, such as the regional courts in Europe, the Americas, and Africa. There is also a low uptake in domestic law regarding criminalization of international mass atrocity crimes, and so we need to look at alternate legal ‘hooks’—these might include for instance, the crimes of piracy, human trafficking, and organized crime—as ways in/approaches to find an inroad into the exercise of universal jurisdiction.

There are clearly political narratives against accountability, that entrench impunity, particularly where those in power are accused of the commission of international crimes.

Concerning the universal jurisdiction case initiated in Argentina in relation to Myanmar, it is worth examining the mix of these legal and political enablers. In terms of legal enablers, there are a few of relevance, and which may be of use when assessing other jurisdictions. One is that there is a role for ‘civil parties’ within the legal system; the other is that the Argentine Constitution permitsjurisdiction over violation of international norms outside national borders; in addition, there is a Rome Statute Implementation Law, which permits jurisdiction over foreigners and cases may even be brought in absentia. There is of course a constellation of other factors that have come to bear in this case—the role of a civil society organization, BROUK—as well as the fact that there is experience of universal jurisdiction cases in Argentina, related to Franco-era Spanish officials. A less tangible—but equally important factor—is that of legal representation and that the lawyer pursuing the case with Argentina—Tomás Quintana—is a former UN Special Rapporteur on Myanmar (2008-2014) and has knowledge as well as the motivation to pursue accountability.

These are indicators that would be important to look for in the other jurisdictions that are being examined. These include filings in Indonesia, Turkey, and Germany related to Myanmar, as well as Singapore, in relation to the Sri Lankan civil war.

All these legal avenues for accountability in Asia are important to pursue, strategically and based on sound legal assessment. Widening our focus to encompass a broader canvas is important to tackle impunity and ensure accountability, in our region.

Priya Pillai is an international lawyer, heading the Asia Justice Coalition, focused on international justice and accountability. She had a PhD in international law and over two decades of experience, including at the International Criminal Tribunal for the Former Yugoslavia, and the International Federation of Red Cross & Red Crescent Societies HQ in Geneva.

Find all posts in this blog series here.

Read more on this topic in the Asian Journal of International Law.