Today’s essential instruments in the international arena is the Rome Statute, a treaty that provides for the prosecution of crimes against humanity and enforced disappearances. However, some Asian countries have not signed the treaty. This article looks at how the Rome Statute is being implemented in Asia and the relationship between the compact and certain Asian states that have not signed it.
Criminals of international concern
During the Hague International Peace Conferences, attempts were made to harmonize laws of war and limit the use of technologically advanced weapons. This process was facilitated by the Rome Statute, which aims to establish an international criminal court to prosecute the most serious crimes of global concern.
The Rome Statute was adopted in Rome on July 17, 1998. The ICC has jurisdiction over persons who committed physically based crimes, crimes against humanity, and genocide. It is also authorized to investigate persons who assisted others in committing crimes. In addition, the ICC can arrest and prosecute people who give money to the perpetrators, people who make weapons, and military commanders.
The United States played a significant role in drafting ICC rules and operating documents. In addition, it was a member of the Preparatory Commission.
Crimes against humanity
The Rome statute does not establish an international criminal court despite its name. It provides for cooperation between states and the ICC. The ICC must be ratified by at least sixty nations to be effective. As of this writing, only ten have ratified the Statute.
The Statute defines crimes against humanity as widespread attacks against civilians. These may include murder, torture, rape, sexual slavery, and enforced disappearance.
The law does not require that the acts be committed in conjunction with an armed conflict. It is also not limited to the actions of public officials. It also includes the use of child soldiers.
The Statute recognizes the distinction between torture and the pain inherent in lawful sanctions. The difference between the two is that the former involves the intentional infliction of severe suffering, while the latter is a lesser offense.
Enforced disappearances of persons
During the Second World War, the Nazis practiced enforced disappearances. They prohibited contact with outsiders, abducted people from occupied territories, and transferred them to the Reich. These abductions were recognized as international human rights crimes at the Nuremberg trials.
The United Nations observed the International Day of the Victims of Enforced Disappearances. The International Coalition against Enforced Disappearances is working to achieve universal ratification of the UN CED.
The UN Convention on Missing Persons identifies enforced disappearances as violating customary international humanitarian law. It also requires states to investigate non-state disappearances. However, it does not address cases of enforced disappearances carried out by non-state actors.
The Inter-American Court has dealt with cases of enforced disappearances without a state agent in patients where the non-state actor had a de facto relationship with the state. The International Committee of the Red Cross on armed conflicts and internal violence has identified the practice of enforced disappearances.
Relationship with certain Asian States not a party to the Rome Statute
Even though Asia-Pacific states represent half the global population, the ICC has a relatively weak presence in this region. The European Union has taken the lead in encouraging ratification of the Rome Statute in underrepresented areas. However, the prospects of Asian participation in the ICC appear to be in balance.
The ICC Office of the Prosecutor has opened investigations in Afghanistan, Georgia, Ivory Coast, Myanmar, and Burundi. The ICC has also handled a case involving Malaysia Airlines Flight MH17. Several Asian states have never signed the Rome Statute, including Iraq, Syria, India, and Indonesia.
The ICC has also taken the initiative to establish a Trust Fund for Victims. This is to benefit victims of crimes committed within the Court.
Implementation in Asia
Even though Asian States are among the ICC’s 19 members, the region’s participation in the International Criminal Court’s work has been weak. Therefore, a thorough analysis of the Asia-Pacific’s relationship with the ICC is necessary to identify why the region is underrepresented and forecast its prospects.
Asia is one of the world’s most diverse regions, with various approaches to the rule of law, human rights, and accountability. Moreover, many countries in this region face critical decisions regarding addressing their violent pasts and building sustainable peace.
In this article, we explore the relationship between the ICC and the Asian region and assess the domestic implementation of the Rome Statute in the area. In addition, we evaluate the extent to which aspects of the Statute have been incorporated into the national legal orders of several Asia-Pacific state parties. We also explore the activities of the ICC’s Office of the Prosecutor in the region. Specifically, we analyze four cases relating to the Asian area that have been or are under preliminary examination by the ICC OTP.