Academic journal article Contemporary Southeast Asia

International Criminal Court: Reservations of Non-State Parties in Southeast Asia

Academic journal article Contemporary Southeast Asia

International Criminal Court: Reservations of Non-State Parties in Southeast Asia

Article excerpt


Since the adoption of the Rome Statute of the International Criminal Court on 17 July 1998, followed by its entry into force on 1 July 2002, reactions from Southeast Asia have been lukewarm. The Statute, which exercises jurisdiction over four crimes--genocide, crimes against humanity, war crimes and crimes of aggression (applicable only after a further provision defining aggression and conditions of jurisdiction is adopted) (1)--is ratified by only two of the eleven Southeast Asian states. (2) Even so, one would expect its primary supporters to be countries such as the Philippines and Thailand, where human rights issues are openly discussed and more or less entrenched in the political culture. Yet this is not the case. The first country in the region to ratify the Statute, Cambodia, only managed to wrestle itself free from Vietnamese occupation and the Khmer Rouge stranglehold about a decade ago and is still coming to terms with its brutal past. Timor-Leste, on the other hand, gained its full independence as recently as 20 May 2002 after a period of controversial annexation by Indonesia.

What are the main factors inhibiting the other Southeast Asian states from accepting the International Criminal Court (ICC)? Is it the fear of setting a precedent by consenting to the subjugation of territorial integrity on ethical grounds, which could culminate in a spontaneous compromise of state sovereignty once this is ensconced into customary law, as articulated by numerous major powers? Or is it simply a rejection of the terms propounded by the Statute? Or does the non-committal demeanour echo scepticism over the relevance and effectiveness of such a decree, espousal of a wait-and-see attitude, mere constitutional delay, and/or some other reasons? How much influence does the United States have over the governments of Southeast Asia? Why did Cambodia and Timor-Leste support the ICC?

It is not the intention of this article to make a judgement call on whether Southeast Asian states should or should not support the ICC. Rather, it seeks to explore the various motives behind most states' reluctance to ratify the Statute. Whilst discussion of the topic under the regional grouping of Association of Southeast Asian Nations (ASEAN) is almost non-existent due to its palpable sensitivity, the message conveyed by non-State parties either individually or on the United Nations platform appears to underline two common themes, i.e. the pre-eminence of state sovereignty and sustenance of regimes.

Reservations of Non-State Parties

Politically motivated accusations

One of the most frequently cited concerns over the ICC is the high possibility of being exposed to politically motivated accusations. An unease highlighted by three of the five permanent members in the United Nations Security Council (UNSC)--United States, Russia and China. It is interesting to note that only one government in Southeast Asia has candidly proclaimed this as a primary basis for not ratifying the Statute. Ignacio Bunye, spokesman for the Philippines President Gloria Macapagal-Arroyo, revealed in September 2002 that senior cabinet officials were not in favour of the ICC because "they do not see any advantage but potential restrictions" to their law enforcers, elaborating that "the security forces already have to deal with 'so many harassment suits' in connection with their fight with the internal rebellions". (3) Endorsing the Statute will thus open the floodgate further for malicious allegations, a situation the country can do without. Although Bunye had centred Philippines' apprehension on hindrance to domestic policies at the national level, there are also those who worry about ICC's impact on their foreign policies. The United States, for example, is particularly put off by the thought that its troops may be taken to court for necessary but contentious acts carried out while on humanitarian missions overseas. …

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