Icc Could Face New Tide of Opposition from Asia

By Editor, The Manila Times, Philippines Reprint | | Print |

Mar 16 2018 - The establishment and adoption of the International Criminal Court (ICC) in Rome on July 17, 1998 could be regarded in every respect as a difficult one, like a Caesarean birth.

At birth, the Rome Statute of the ICC was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States and Yemen.

Following 60 ratifications by state parties, the Rome Statute entered into force on July 1, 2002 and the International Criminal Court was formally established.

The Philippines was one of the 120 countries that signed the Rome Statute in 1998. It became the 117th state party to the Rome Statute in August 2011, when the Philippine Senate ratified the multilateral treaty.

The Philippines is by no means the first state party to signify its intent to withdraw from the ICC and reject the Rome Statute.

In October 2016, after repeated claims that the Court was biased against African states, Burundi, South Africa and Gambia announced their withdrawals from the Rome Statute.

Foreign policy experts believe that Kenya, Namibia and Uganda may soon follow in withdrawing from the court. All this signifies a mass African exodus.

The Court has been hard put to explain to the world why it has prosecuted only black African leaders, and why not a single leader from another continent has been prosecuted. The accusation of bias was dead on.

With the Philippines’ withdrawal citing also the ground of bias, along with a lack of due process and fraud, the ICC faces a new front of opposition from Asia. Ironically, over the years, the Philippines has been a staunch promoter of the Court in Southeast Asia. It has sought to persuade Thailand, Indonesia and other Asean states to join the Court.

Now, the situation is reversed, as the Philippines has joined the exodus from the ICC. At this point, there may be no stopping an avalanche of withdrawals from the Court. The position of the ICC today is, to say the least, problematic, and its future is uncertain.

As of October 2017, 123 states were parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. A further 31 countries have signed but not ratified the Rome Statute.

The law of treaties obliges the state parties to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty.

Four signatory states — Israel, Sudan, the US and Russia — have informed the UN Secretary General that they no longer intend to become state parties and, as such, have no legal obligations arising from their signature of the Statute.

Forty-one United Nations member states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court.

In this time of acute second-guessing and review of the ICC, we think it is worthwhile to recall the stance of former UK Prime Minister Margaret Thatcher being staunchly opposed to the creation of the ICC, which was then being spearheaded by UN Secretary General Kofi Annan.

Mrs. Thatcher predicted that Annan’s vision was more likely to turn into a nightmare, because of the following reasons:

• First, because the court is more likely to bring action against the soldiers or statesmen of generally law-abiding countries, rather than those of the rogue states.
• Second, because the proposed judicial institution would require a global police force, or in embryo a global government, in order to ensure that its decisions are carried out.
• Third, because, to whatever extent it is effective, it will render the West’s capacity to intervene less effective.
• Fourth, because it is the latest and most powerful expression of the trend toward the internationalization of justice, that will itself lead to injustice.

She concluded her critique saying: “This is no way to make law – any law. It is a recipe for confusion, and it provides endless scope for interpretation and so opportunities for bias. This is what we can expect from the International Criminal Court unless we stop it.”

Looking at the situation of the ICC today, Mrs. Thatcher’s words have come to pass.

This story was originally published by The Manila Times, Philippines