ASIA: Lack of International Court Means Happy Days for Dictators

By Marwaan Macan-Markar Reprint | | Print |

Analysis - By Marwaan Macan-Markar

BANGKOK, Dec 17 2003 (IPS) - The capture of former Iraqi dictator Saddam Hussein to face justice for the brutality unleashed during his regime should be of little worry to Asia’s club of dictators, or those waiting in the shadows to become tomorrow’s strongmen.

That is unless the U.S. government turns its imperial gaze on an ‘evil’ regime in Asia and launches another conquest as it did in Iraq in March.

This comforting reality for Asia’s strongmen, both present and former, stems from a trend that has gone largely unnoticed in the wake of the international attention directed toward Washington’s ‘war on terror’ and its occupation of Iraq.

Close to a year-and-a-half after the world’s first permanent international tribunal was established, only six Asian countries have ratified the treaty to create the International Criminal Court (ICC). They include Cambodia, East Timor, Mongolia, South Korea and Tajikistan.

Consequently, this gives the impression that governments across the continent’s four regions – Central Asia, North-east Asia, South Asia and South-east Asia – are not as enthusiastic in joining the 92 countries that have ratified the ICC.

By contrast, regions such as Europe, Africa and Latin America appear to be in a better light as being keen supporters of this judicial body. Europe, for instance, has over 15 ratifications.

Under its rules, the ICC cannot prosecute individuals who come from countries that have not ratified the treaty, unless the alleged crime occurred in a country that ratified the statute.

For human rights activists, the ICC has been a long felt need to try individuals for a series of heinous crimes. They are genocide, war crimes and crimes against humanity that range from mass rape, ethnic cleansing, torture and enslavement to enforced disappearances and persecution on political, racial and religious grounds.

But there should be little surprise as to why Asian governments have accorded a lukewarm reception towards this judicial process. The long list of countries that have a rich tradition of oppression thanks to their respective dictators and strongmen is one of the reasons.

In Central Asia, for instance, the climate of suppression is alive in Azerbaijan, Kazakhstan, Kyrgyzstan, Turkmenistan and Uzbekistan. In South and South-east Asia, Burma, Pakistan, Indonesia and the Philippines have candidates, including past and present leaders, whose records would interest the ICC’s prosecutors.

In North-east Asia, China’s and North Korea’s notoriety are sufficient grounds for the governments to keep the hope of justice offered by the ICC beyond their national boundaries.

”This is a major concern among human rights groups and members of the international community, because the culture of impunity is a serious issue in Asia,” said Evelyn Balais Serrano, Asia coordinator of the Coalition for the International Criminal Court, a network of non-governmental groups lobbying for the ICC.

Asia’s poor record has serious implications people in the region, particularly where there are ”potential cases for the court, like in Afghanistan, Burma, Indonesia and the Philippines,” she explained during an interview. ”By not being part of this process, Asian governments are denying victims of grave injustice the chance to place their cases before the court.”

For Thai human rights activist Somchai Homlaor, the reluctance to embrace the ICC reflects deep shortcomings in the region’s political culture. ”It means democracy and human rights have not been fully recognised,” Somchai, secretary general of the regional human rights lobby Forum Asia, told IPS.

He says that Asian leaders fear that ratifying the ICC could result in them being summoned before the court at some future date for gross human rights violations they committed. ”The leaders also worry that their friends and colleagues may be the subject of a trial too,” he said. ”So non-ratification is a way of avoiding such an eventuality.”

But this is not the only reason for Asian countries’ non-ratification of the ICC. As a two-day seminar on human rights here this week showed, Asian governments have also been under tremendous pressure from the administration of U.S. President George W Bush to undermine the ICC, which Washington has opposed since the start.

Washington has been pressing countries in Asia and elsewhere to sign agreements that grant impunity to U.S. military personnel and citizens. Under the Bilateral Impunity Agreements (BIA), U.S. passport holders have been exempted from being tried for crimes the ICC has been empowered to hear.

The 14 Asian countries that the Bush administration pressured into signing the BIAs are Afghanistan, Bangladesh, Bhutan, Cambodia, East Timor, India, Maldives, Mongolia, Nepal, Pakistan, the Philippines, Sri Lanka and Thailand.

To muscle its way into succeeding, the United States also pushed ahead with a parallel strategy – adoption of a law by the U.S. Congress in August 2002 – called the American Servicemembers’ Protection Act. This law gave the U.S. president the power to use ”any means necessary” to free U.S. citizens and allies from the ICC’s custody.

Another troubling feature of this act, according to Serrano, was the power it gave the U.S. government to withdraw military and economic aid to countries that do not sign the BIAs. ”Asian countries that signed the BIAs were initially threatened by such loss of U.S. aid,” she said.

Some Asian countries have also begun to use U.S. arguments against the ICC – that it infringes on the country’s sovereignty – to avoid ratification, says Somchai.

But for rights activists, that interpretation is far from the truth, since the ICC recognises the jurisdiction of national courts. Furthermore, this permanent tribunal can only hear cases if national courts are unable to or unwilling to hear the calls for justice by victims. The excuses trotted out by Asian governments to avoid ratifying the ICC needs to be countered through public awareness campaigns, says Boonthan Verawongse, secretary of Dignity International Asia, the regional arm of an international human rights lobby. ”Impunity should not be accepted.”

”That is the only way Asia’s many authoritarian regimes and its authoritarian leaders can be brought to justice,” he told IPS. ”They have committed serious crimes and have got away till now.”