This post has been contributed by Dr Emma Palmer, a member of the Law Futures Centre
More than 1000 individuals have been killed since the military arrested State Counsellor Aung San Suu Kyi and other representatives of Myanmar’s democratically elected government in February 2021. Many more have been arrested and it is estimated that 220,000 people have been internally displaced since February. More than 860,000 Rohingya and other refugees are still living in camps around Cox’s Bazar in Bangladesh. Meanwhile, between 12,000 and 30,000 civilians were killed during President Rodrigo Duterte’s ‘war on drugs’ campaign in the Philippines. No leaders have been tried for their role in this violence.
The International Criminal Court (ICC) was established to prosecute the ‘most serious’ crimes of genocide, crimes against humanity, war crimes, and aggression. What is it doing about these and other situations in the Asia-Pacific region?
The ICC has long been called out for its focus on violence in Africa. Every prosecution has concerned crimes there, including in the Democratic Republic of Congo, Central African Republic, and Mali. Now, however, more than a quarter (4 of 15) of the Prosecutor’s formally opened country investigations lie within the Asia-Pacific. Alongside investigations in Latin America and Europe, this indicates a potential shift in geographic focus.
The ICC defines the Asia-Pacific in broad terms ranging from Cyprus to Japan and is investigating violence within Afghanistan and Palestine, as well as Myanmar and the Philippines. Even still, states in the Asia-Pacific, particularly in Southeast Asia, have been slow to ratify the Rome Statute of the International Criminal Court – though there is significant regional experience in responding to historic, colonial, and more recent atrocities. The low ratifications does limit the ICC’s jurisdiction, since it can only prosecute crimes committed on its members’ territory, by one of their nationals, or referred by the Security Council. Regional engagement with and interest in the ICC is also uneven and normally adapted for local circumstances.
Recent events suggest that while a trajectory toward greater Asia-Pacific engagement is evident, there are limits to the ICC’s capacity to rapidly expand that focus. One of former Prosecutor Fatou Bensouda’s last statements stressed the lack of resources plaguing the Court, while requesting a new investigation in the Philippines. The new Prosecutor, Karim Kahn QC, is serious about reprioritising his office’s workload. Since June 2021, he has been systematically meeting with officials from each country under investigation, working out whether and how to proceed. This has ramifications for the four Asia-Pacific situations under investigation.
The International Court of Justice is hearing a claim brought by The Gambia that Myanmar’s treatment of the Rohingya population breached its obligations under the Genocide Convention. However, that case will not involve finding individuals criminally responsible for violence, as it focuses on state responsibility. By contrast, the ICC can prosecute individuals within its jurisdiction.
It is two years since ICC Pre-Trial Chamber III authorised the Prosecutor to launch an investigation into alleged crimes committed partly within Bangladesh, a party to the Rome Statute, and partly in Myanmar, which is not. The investigation covers violence from June 2010 (when Bangladesh joined the Court) and focuses on crimes committed by military perpetrators against the Rohingya and other minority groups in Rakhine State. The ICC only has jurisdiction over crimes partly committed in Bangladesh because Myanmar has not ratified the Rome Statute.
While the transparency of the Prosecutor’s investigations is limited, outreach activities with ‘affected communities’ and victims have commenced. COVID-19 prevented personnel from the ICC’s Public Outreach or Victims Participation and Reparations Section (VPRS) from physically travelling to Bangladesh, but they liaise with legal representatives remotely. ICC representatives are also reluctant to start “signing up” victims to participate in trials when the scope of them remains unclear. The Court has considered whether any proceedings might be held closer to Myanmar – perhaps in Bangladesh – but decided it was too early to move hearings when none were yet scheduled.
Now, the National Unity Government of Myanmar (NUG), a “shadow” government representing the ousted elected government, wants to give the ICC broader jurisdiction. In August, the NUG submitted a so-called “Article 12(3) Declaration” to afford the ICC jurisdiction over crimes committed upon Myanmar’s territory since July 2002 (the earliest date possible under the Rome Statute). This raises tricky questions about who represents the state of Myanmar, which is already proving politically delicate at the United Nations General Assembly.
Expanding the investigation might also cause further delays, so there may be reasons to separate this wider question from the ongoing Rohingya-related proceedings. The Bangladesh/Myanmar proceedings were always going to be complicated, including because Myanmar is not a member of the Court and (though this is common at the ICC) authorities are not keen to cooperate with it. Myanmar’s increasingly unstable political condition does not make the Prosecutor’s task easier, but makes it even less likely that any domestic trials will proceed, at least until the civilian movement regains control.
Having more on the table is exactly what the Prosecutor does not want. On the other hand, the widespread atrocities in Myanmar – both in Rakhine State and throughout the country – are arguably exactly what the ICC was designed to address.
All of this (alongside pandemic upheaval) presents challenges for the Prosecutor and ICC Registry to learn from civil society and victims’ groups in Bangladesh, Myanmar, Thailand, and beyond, in a way that can appropriately focus their attention and set and meet expectations. The Prosecutor seems up to this challenge.
There have been developments in the ICC’s proceedings involving the Philippines, with Pre-Trial Chamber I authorising the Prosecutor to commence an investigation into the so-called “war on drugs” in September 2021. The investigation will cover the period from 1 November 2011, when the Philippines joined the Court, to 16 March 2019 – twelve months after the Philippines formally withdrew from the ICC. In that time, the Philippines police and “vigilantes” (allegedly with official support) undertook widespread anti-drug operations involving thousands of extra-judicial killings and other violence, mainly targeting lower socio-economic urban populations.
This investigation will be challenging given the opposition of the Duterte administration, even if some domestic institutions and individuals support the Court’s actions. Yet the authorisation decision refers to abundant reports, including from the Philippine National Police and Presidential Office, of highly consistent widespread attacks directed by officials. The Court also considered representations made on behalf of more than 1,530 individual victims and 1,050 families. The details set out in its decision, including about how young people were killed during the attacks, would be difficult to deprioritise now.
In fact, the Pre-Trial Chamber notes that there is really no controversy, even from the Philippines officials, that thousands of people died in the anti-drug operations. The question is just whether the extra-judicial killings and other harms were lawful or justified – for instance based on self-defence. The Chamber did not need to decide that yet, but plainly thought that such excuses were unlikely to explain most, if any, of the attacks.
Indeed, since that decision Prosecutor Kahn has urged Philippines authorities to engage with the Court. An official statement noted his willingness to ‘constructively engage … in accordance with the principle of complementarity’. In ICC speak, this suggests that the Prosecutor is open to exploring options for domestic prosecutions instead, which should be encouraging to officials in the Philippines. So far, Duterte’s team claim to be confident that their lack of cooperation will protect them, suggesting that they may not take up that opportunity, but will instead defend the case. On the other hand, in late October the Department of Justice in the Philippines announced that it would review thousands of cases in which police officers had been cleared.
It would be risky for the ICC to wait for domestic proceedings, at least while Duterte remains influential (leading favourites to win next year’s election include Duterte’s daughter, the national police chief who led the drug war, and another Duterte supporter: former dictator Marcos’ son). While the Philippines judiciary has the capacity to conduct trials, the environment of intimidation restricts the prospects for genuine investigations or prosecutions in the near term. Careful listening to victims and diverse actors in the Philippines is crucial.
Perhaps the most controversial recent decision concerning the ICC’s Asia-Pacific investigations involved Afghanistan. In 2019, Pre-Trial Chamber II initially rejected the Prosecutor’s request that it authorise an investigation in Afghanistan, finding – in a ‘devastating blow to victims’ – that an investigation would not be ‘in the interests of justice’. In March 2020, the Appeals Chamber unanimously overturned that decision and authorised an investigation.
These decisions drew on information gathered by the Prosecutor, as well as submissions made by hundreds of victims. The Prosecutor’s request had involved alleged crimes against humanity and war crimes by the Taliban, war crimes by Afghan National Security Forces, and war crimes by United States and CIA forces.
This offered the highly anticipated potential for the ICC to address crimes committed by US nationals. The US government (under Trump at the time) came out fighting, imposing personal sanctions and visa restrictions upon court staff including the former Prosecutor – lifted only in April 2021. The Prosecutor then deferred the investigation while Afghan authorities apparently took constructive steps toward undertaking domestic prosecutions with the ICC’s support.
The withdrawal of US and other foreign troops from Afghanistan this year, which led to the Taliban reclaiming control of national official functions, changed that situation. In September Prosecutor Khan recommenced the ICC’s investigation, but with a(nother) twist.
No longer would it analyse crimes committed by US or Afghani National troops. Instead, it would focus on ‘the Taliban and the Islamic State – Khorasan Province’ and ‘deprioritise other aspects of this investigation’. This was met with dismay by some who considered this to be letting ‘America Off the Hook’.
All of this indicates that Khan is serious about clearing the decks, as it were, and focusing on achievable investigations – even if this meets with opposition. On the other hand, he will not flinch from pursuing investigations where they meet the relatively low ‘filtering’ threshold, particularly where cooperation from relevant national authorities is not forthcoming.
Continuing with the theme of controversy, in March Bensouda opened an investigation into crimes committed in the State of Palestine. The Court determined (by a 2-1 majority) that its jurisdiction extends ‘to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’, though this could be revisited.
Since then, the Court’s outreach team and VPRS have undertaken some media monitoring, dissemination, and translation services, while the investigation continues. It is now approaching 6 years since Palestine first submitted its Article 12(3) declaration accepting the Court’s jurisdiction, so the process is slow. The situation is notoriously political, but includes a number of additional – though again not novel – challenges for the Court, including the jurisdiction issue, weight of expectations, and opposition from non-parties Israel and US. It is also one that some have anticipated Khan might deprioritise, but also involves such serious allegations and stakes for the ICC that discarding it would be hazardous indeed.
For all the apparent shift toward the Asia-Pacific, or at least away from Africa, there are now zero preliminary examinations in the region awaiting a decision about whether to pursue an investigation. This probably reflects the low ratifications and hence jurisdiction in the region, meaning that most regional atrocities within the Court’s reach are already under investigation now.
Of the four investigations, each involves considerable complications and is likely to be resource intensive at a time when that is more challenging than ever. Still, none involves very realistic prospects for domestic prosecutions to fulfil a parallel function – although this may be (barely) arguable in the case of the Philippines. In other words, there is a lack of alternative venues for prosecutions, other than possible domestic prosecutions under universal jurisdiction, of which few are forthcoming.
In these circumstances, it is crucial that the Court engage deeply (even if remotely) with civil society and victim/survivor groups to gather their own experiences of engaging with these respective governments. In any decision-making, their ideas and views on possible alternative actions should be accepted, solicited, engaged with, and respected, rather than their expectations being simply managed.
For those in the region, the ICC is likely to be a little more newsworthy as these investigations unfold and there may be opportunities to engage with and improve the Court’s activities and work in the Asia-Pacific. Meanwhile, the daily challenging work of responding to violence beyond the Court’s reach or interest will continue.