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The Long Way from Rome to Jakarta: Prospects of Ending Impunity for International Crimes in Southeast Asia

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Main Courtroom of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Source: Public Affairs Section / ECCC.

Main Courtroom of the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Source: Public Affairs Section / ECCC.

By Christoph Sperfeldt

More than ten years after its entry into force, the Rome Statute of the International Criminal Court (ICC) is enjoying wide-spread global support. Despite this progress, states in Asia generally remain reluctant to join the Rome Statute. Nevertheless, the global dynamic of the past years has also left its mark on the attitudes among states in the region. In Southeast Asia in particular, the promotion of human rights norms and principles at the regional level is gaining momentum, most visibly manifested in the creation of an ASEAN Intergovernmental Commission on Human Rights and the adoption of an ASEAN Declaration on Human Rights. Although this development has not yet advanced the issue of accountability for breaches of norms of international human rights and humanitarian law, individual states have taken steps that indicate an increased recognition of the need to prosecute those responsible for mass atrocities.

Cambodia and Timor Leste were among the founding members of the ICC, but had remained exceptions until recently. Thailand has signed, but hesitates to ratify the Rome Statute. However, with the accession of the Philippines to the ICC Statute in 2011, a decade long stalemate in Southeast Asia seems to be broken. Current discussions among policy-makers and legislators in Indonesia and Malaysia are signs of a slow but steady shift in attitudes. As one of the world’s most populous countries, Indonesia’s accession in particular would tip the balance in the region towards a position more amenable to the norms of the Rome Statute.

Southeast Asia is no stranger to mass violence and large-scale human rights abuses. The impact of international crimes, including crimes against humanity, genocide, and war crimes, on countries’ development, including the perpetuation of weak governance, is visible throughout the region. As the World Development Report 2011 observed, vicious cycles of conflict place security and justice under stress, and  impunity creates volatile political frameworks. The report also concludes that human rights abuses are associated with higher risks of future conflict. [1] To break the repeated cycle of violence, there is a need to recognise the inherent link between conflict, peace, and justice and to formulate holistic policy responses to prevent the recurrence of violence. Supporting accountability for international crimes, as outlined through the Rome Statute, can be one element of such a comprehensive approach.

Countries in Southeast Asia that have experienced mass atrocities now appear to have positions more amenable to supporting the Rome Statute’s norms. Cambodia and Timor Leste have both experienced mass violence to such a degree that their development has fallen far behind that of their regional peers. Both countries were signatories to the Rome Statute from the beginning, and both countries have initiated, with international assistance, accountability processes to prosecute alleged perpetrators. The experiences of the Serious Crimes Process in Timor Leste and the hybrid Extraordinary Chambers in the Courts of Cambodia have been mixed, but they have set important precedents for ending impunity for international crimes in Southeast Asia. [2] To date, while the  region is  no stranger to prosecuting international crimes, there has been little cross-border sharing of this experience.

Interestingly, some states that are not parties to the Rome Statute have taken steps to enhance their domestic legal frameworks so as to allow for national-level prosecution of international crimes. When adopting Law No. 26 of 2000 of the Human Rights Court (Law 26/2000)—at a time when the ICC was not yet established—Indonesia after the fall of Suharto’s regime demonstrated that it is willing to investigate and prosecute perpetrators of crimes, similar to those enshrined in the Rome Statute, notably for crimes against humanity and genocide. The Law empowers Indonesia’s national human rights commission, Komnas HAM, to conduct initial investigations into alleged cases of crimes against humanity and genocide and to make recommendations for prosecution to the Attorney General’s Office. The case of Komnas HAM highlights the important role national human rights institutions in the region can play in investigating breaches of international criminal law.

Despite these commendable efforts, Indonesia’s Attorney General’s Office has been reluctant to follow up Komnas HAM’s findings and recommendations, often rendering the commission’s work and the implementation of its novel mandate futile. Likewise, the proceedings in the ad hoc human rights court in Jakarta dealing with crimes committed by agents of the state in the former Indonesian province of East Timor failed to provide an example for accountability—most of the accused were eventually acquitted. [3] The experiences in Indonesia, but also more recent allegations of political interference at the ECCC in Cambodia, demonstrate that states in the region are increasingly willing to prosecute international crimes, but that national-level prosecutions remain contested and often fail to live up to international standards of justice. Thus, implementing the principle of complementarity “to enhance the capacity of national jurisdictions to prosecute the perpetrators of the most serious crimes of international concern in accordance with internationally-recognised fair trial standards,” as called for by the ICC State Parties in the 2010 Kampala Declaration, will not come about without challenges.

Nevertheless, the Indonesian government has on a number of occasions indicated that it is willing to accede to the Rome Statute. The National Action Plan on Human Rights, adopted in 2004 under President Megawati, mandated that Indonesia would ratify the Statute before the end of 2008. Although Indonesia has not yet realised this intention, its government accepted recommendations with regards to the accession to the Rome Statute made during its Universal Periodic Review at the 13th session of the Human Rights Council. Similarly, in 2011, the government of Malaysia affirmed its commitment to endorse the instrument of accession to the Statute, and the parliament has been considering implementing legislation for this purpose. Although the government cites specific challenges arising from the special standing of the Malay Royalty, the Malaysian Bar Council and Parliamentarians for Global Action have called on the government to accelerate the process of accession.

The most significant development, in 2011, was the Philippines’ accession to the Rome Statute. The Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity (RA 9851), enacted in December 2009, provided the basis for national implementing legislation. Furthermore, a working group on ICC implementation consisting of representatives from relevant government agencies and civil society was convened in 2012 to consider further steps on domestic legislative implementation, including on enforced disappearance, conscription of children in armed conflict and the effective protection of witnesses and victims. Importantly, a Philippine Judge is now ensuring a visible presence for Southeast Asia at the seat of the ICC in The Hague.

Beyond a narrow focus on ratification, there is now also a need for more awareness-raising among key stakeholders in the region as well as more focus on building capacities for prosecuting international crimes through national jurisdictions. For this purpose, attention should be directed to two specific aspects: (i) the fact that Southeast Asia comprises both parties and non-parties to the Rome Statute with an important potential for intra-regional dialogue, and (ii) the past experiences and capacities available within the region in prosecuting international crimes. These two factors have not as yet been mobilised to enhance regional exchanges. Such intra-regional exchanges could raise awareness and correct wide-spread misunderstanding among key stakeholders about the ICC’s purpose and mandate, and deflect an often-held opinion that these are ideas and values foreign to the region. Moreover, new demands for justice may arise in the near future, such as from Myanmar, requiring neighbouring states and ASEAN as a whole to develop appropriate responses that ensure long-term peace and stability in the region.

At a time when the ECCC in Cambodia will soon end its operations, Morten Bergsmo argues that “the era of international institution building for war crimes account­ability is over; a new era of national capacity building has begun”. [4] As this paradigm change slowly takes place in Southeast Asia, the time is ripe for more systematic efforts to identify, analyse and share experiences and expertise within the region in order to build and further expand domestic capacities to deal with international crimes. This in turn could provide a much stronger foundation for an emerging regional consensus on the need to hold accountable those responsible for international crimes.

[1] World Bank, 2011, World Development Report 2011: Conflict, Security and Development, Washington, DC: The World Bank.

[2] Kent, L, 2012, ‘Interrogating the “Gap” Between Law and Justice: East Timor’s Serious Crimes Process’, Human Rights Quarterly, Vol. 34, pp 1021-1044.

[3] Cohen, D, 2003, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, International Center for Transitional Justice, Occasional Paper Series.

[4] Bergsmo, M, 2011, ‘Complementarity and the Challenges of Equality and Empowerment’, FICHL Policy Brief Series, Vol. 8, p 1.

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