ICC Prosecutor Symposium: “Mind the Gap”–Insights from Asia

This post looks at some of the issues and lessons that will impact the new prosecutor, emanating from the few situations related to Asia – a region that is often overlooked in the context of international justice. Other posts in our symposium have gone into details of the prosecutor’s position, responsibilities and qualifications. In this, I take a step back from the minutiae, and look at some of the larger conundrums that will face the new prosecutor, focusing on three aspects brought into sharp relief when viewing Asia and its engagement with the court.

In an oft repeated statistic, Asia has nearly the lowest number of ratifications of the Rome Statute. It is also the focus of one of the most politicized and fraught investigationsof the Office of the Prosecutor (OTP) – Afghanistan – with repercussions still being felt. In a blaze of publicity and excitement, Malaysia signed the Rome Statute last year – temporarily taking the region from ‘worst performing’ status at the time – till it reneged. Adding insult to injury, the Philippines withdrawal went into effect in March 2019. In all the tumultuous news, the likelihood of the most populous countries in the world – India and China – signing up to the aims of the court seem as likely as hell freezing over.

There are certain dynamics playing out that arise from the Asian context which are explored, to illustrate the larger questions that will confront the new prosecutor. While not all are within the sphere of control of the prosecutor, these factors will nonetheless impact the success or failure of the incumbent.

Beyond Positive Complementarity

The Asia-Pacific region ranks second lowest by one, among ratifications of the Rome Statute. There are currently 19 states from the Asia-Pacific region that have ratified the Statute. There is one ongoing preliminary examination from the region (The Philippines) and two situations under investigation (Afghanistan, and Bangladesh/Myanmar).

A crucial aspect of any case moving forward at the ICC is the principle of complementarity, embodied in Article 17, which ensures primacy of the national jurisdiction. While much has been written about its applicability to functions of the OTP, with the emphasis on positive complementarity, there are also broader ways of engaging with the idea underlying – that is, the capacity and functions of a national legal system to prosecute international crimes.

I would argue an indicator of success of the court is also in the incorporation of international law crimes within domestic law – and of course, the wherewithal to actually prosecute those accused of international crimes within the domestic context. For a successful domestic prosecution – legislation is but one of the factors that needs to be taken into account and is a condition precedent, without which there can be no such prosecution. Of the states that have not ratified the Rome Statute, there have been concerted efforts over the years to (a) ratify the statute, and (b) simultaneously, include crimes defined by the Rome Statute into domestic law. This has been the focus of civil society and legislative efforts in many countries, including the Philippines and in India. This dual-track strategy has been adopted by lawyers and civil society on the ground, in states that are certainly not immune to the types of crimes delineated in the Rome Statute. Which brings one to the broader purpose of the Rome Statute – to establish a court, yes, but also surely to widen the prohibition of the crimes as described in the statute.

So while the ICC is focused on ‘positive complementarity’, the wider context – the ability to prosecute international crimes in more national jurisdictions – is one that should make the ICC Prosecutor’s job more focused. Also, while positive complementarity is usually vis-à-vis state parties (or referrals), it is worth querying how this might relate to those that are not states parties and in the context of universal jurisdiction cases, such asarising from the situation of Bangladesh/ Myanmar – with a state party enabling the examination of particular acts emanating in the territory of a non-state party – and the assessment of complementarity in Myanmar.   

Clearly, this is a broader issue beyond the ICC Prosecutor’s mandate but will certainly impact upon her role and function. In Asia, the rate of ratification of the Rome Statute is low, domestic ability to prosecute is low, and accountability is also low. There must therefore be more interest and effort in ensuring systems of accountability are strengthened across the board, in state parties and non-states parties, as the most effective way to tackle impunity, thereby making the next ICC Prosecutor’s job somewhat easier.

Afghanistan – The Judiciary

Nothing has put into focus two organs of the court – the Prosecutor and the judiciary – more than the Afghanistan situation. A brief recap – after at least 10 years of preliminary examination, the Prosecutor requested authorization from the Pre-Trial Chamber (PTC) in November 2017, to open an investigation. In a fragile piece of legal reasoning, the PTC in April 2019 denied the Prosecutor’s request, on the basis that it was not “in the interests of justice” (paras. 87 – 96). Subsequently, the Appeals Chamber on 5 March 2020, reversed the decision of the PTC, authorizing the investigation. This coincides with peace talks in a state of flux (between the Taliban and the US, excluding the Afghan government), and explicit threats from the U.S Secretary of State against personnel of the ICC.     

Leaving aside the international politics surrounding the investigation and the ramifications on the court, an aspect of this case that is in the spotlight is the bench, the quality of legal reasoning and susceptibility to the political. “Why is this coming up in a post on the next Prosecutor?”, you may well ask – I highlight this as one aspect of the functioning of the court that needs to be addressed, and has as profound of an impact upon the work of the Prosecutor and the administration of justice as any other. This is clearly not in the control of the Prosecutor – and nor should it be – to be absolutely clear. But judges are the check and balance of the system of dispensation of justice, and all parts need to function properly.

Having worked in Chambers (at the ICTY in the early 2000’s), I cringe when I read some of the reasoning from the court. For the integrity of the court, this needs to be on the radar of the Assembly of States Parties – as it will inevitably impact the prosecutors work at the court, as well as the perception of victims and survivors, and civil society organizations, who increasingly view the court with barely concealed frustration. While the election of the prosecutor is important, equally important are the selection of judges in order to ensure success of the court as a whole (and this does not mean successful prosecutions, but the administration of justice as a whole, including acquittals where warranted).

Bangladesh/Myanmar – Synergies between International courts and institutions

The ongoing preliminary examination for international crimes in the situation in Bangladesh/ Myanmar, arising from the status of Bangladesh as a state party, comes at a time where there are other international legal proceedings underway. Not only has an application been filed at the International Court of Justice in November 2019, with an order indicating provisional measures in favour of The Gambia and the Rohingya in January 2020, but a case has also been filed in Argentina based on the principle of universal jurisdiction. While the case before the ICJ relates to state responsibility under the Genocide Convention, and the latter relates to individual criminal responsibility, these proceedings at other legal forums are significant in furthering accountability. In addition, the Independent Investigative Mechanism for Myanmar (IIMM) – a new mechanism whose responsibility it is to “collect, consolidate, preserve and analyse evidence” of serious international crimes since 2011, for legal proceedings that may take place – is also in place.  

In this situation, there need to be greater synergies and collaboration between the different courts and institutions, keeping in mind the varied mandates, approaches and ways of working. There is no suggestion here that one mandate is substituted for another, nor that the onus lies solely with the ICC Prosecutor. But given some of the issues that may arise pertaining to evidence collection, and the types of crimes, while this is uncharted territory it needs new approaches, ways of thinking and collaboration.  

Conclusion

There are, no doubt, many issues that are going to face the new ICC Prosecutor. These are but a few of the larger questions that face the court – and may well be a bellwether of things to come – that have bubbled up from situations in Asia, but that are applicable beyond it.