Human rights

Southeast Asia is the ICC’s most elusive target

Political protection, legal holes and Ukraine present impediments to International Criminal Court human rights cases in the Philippines and Myanmar

June 6, 2022
Southeast Asia is the ICC’s most elusive target
Prosecutor of the International Criminal Court (ICC), Karim Khan. Photo: Zurimar Campos/AFP

The Hague will not prosecute Myanmar, nor will it mete out justice in the Philippines.

Southeast Asian nations are an elusive target for the International Criminal Court (ICC) based in the Hague, the capital of the Netherlands, which has become a venue for prosecution of high-profile human rights crimes that evade justice in domestic courts. 

But historical trends and recent action indicate the court established to punish war crimes and institutional violence is unlikely to deliver judgement on the Philippines or Myanmar.

The ICC reentered the public mind following Russia’s invasion of Ukraine in late February, which set loose a global thunderbolt of condemnation and voices calling for the Hague to bring a judicial reckoning to Russian commanders and troops suspected in the murders of civilians and disappearances of captured Ukrainian troops.

The independent judicial body established through the United Nations has received similar pleas to take up alleged lethal abuses of military and police power in Southeast Asia. 

Outgoing Philippine President Rodrigo “The Punisher” Duterte has barely tried to conceal his support of extrajudicial killings of illegal drug dealers and users. 

In Myanmar, the leaders of the February 2021 coup that overthrew the elected government continue unabated in the suppression and slaughter of civilians and opposition forces.

Based on the history of legal and political roadblocks faced by the court, the likelihood of prosecutions stemming from either of these countries seems dubious at best.

Then- Philippine President Rodrigo Duterte speaks to members of Inter-Agency Task Force on the Emerging Infectious Diseases (IATF-EID) on 15 September 2021, a day before his lawyer announced that Duterte will not cooperate with the International Criminal Court’s probe into the drug war. Photo: Toto Lozano /Philippine Residential Photo Division/AFP

A treaty among UN member states created the ICC. The Rome Statute of 1998 established the court and the four offenses for which it can hold trials: crimes against humanity, crimes of aggression, war crimes and genocide. These can include sweeping acts by leaders directing others but also crimes by individuals.

The statute has been ratified by 123 counties including 19 Asia-Pacific states, with Cambodia the only ASEAN member. Yet the court’s noble intent is hobbled by a fairly simple legal hole: The ICC cannot prosecute citizens of nations that do not recognise the court’s jurisdiction or provide evidence and witnesses. Additionally, ICC prosecutors theoretically cannot act unless domestic courts are unable or unwilling to try the cases, although investigations are instigated.

The list of nations refusing to sign onto the treaty include the world’s current superpowers: China, Russia and the United States, which does not wish to cede jurisdiction over American troops and government personnel.

Our refusal to join the court is antithetical to our commitment to human rights, accountability, and the rule of law”

U.S. Rep. Ilhan Omar

Commentators in print and on the small screen have offered possible workarounds to bringing Russian war criminals to justice through the ICC in spite of Russia not being a party to the Rome Statute. Chris Dodd, a former U.S. senator, and John Bellinger wrote in The Washington Post on 5 April that despite objections by policy makers, legal exceptions still “permit U.S. assistance in certain cases.”

“The United States can help the court in appropriate cases while still strongly opposing ICC investigations (including of U.S. personnel) that do not meet the court’s strict threshold requirements,” they wrote.

ICC Prosecutor Karim Khan announced on 28 February that the agency sought to open an investigation into the Ukraine conflict, noting referrals for an investigation from 39 ICC signatory states including Australia, France, Germany and the U.K.

Khan, who became the court’s top litigator in June 2021, explained in a 2 March statement that a preliminary examination of events in Ukraine “found a reasonable basis to believe crimes within the jurisdiction of the Court had been committed, and had identified potential cases that would be admissible.”

Prompted by alleged war crimes by Russians, U.S. Rep. Ilhan Omar filed legislation in April to join America to the ICC. Her two bills include codification of an Office of Global Justice focused on crimes against humanity, genocide and war crimes, as well as a repeal of a 2002 law prohibiting support for ICC investigations.

“Our refusal to join the court is antithetical to our commitment to human rights, accountability, and the rule of law,” Omar said in a statement. “Now is our opportunity to lead the fight against human rights abuses and support international criminal justice.”

The bills filed by the liberal lawmaker potentially could aid future prosecution of cases such as those against Myanmar’s junta, but activists are not waiting on U.S. action.

Chief prosecutor of the International Criminal Court (ICC) Karim Khan poses for a picture at the ICC headquarters in The Hague on 27 May, 2022. Photo: John Thys/AFP

The horrors inflicted on Ukrainian civilians by Russian troops, which the Kremlin denies, continue to be documented by numerous media outlets. News reports from Myanmar, while garnering far less public attention, indicate equally shocking violations of international laws: troops executing civilians including Buddhist monks, putting villages to the torch and torturing detainees. Yet stories from Yangon, Magwe and Sagaing received scant coverage outside regional media even before the world turned its eyes to Kyiv, Mariupol and Bucha.

The Myanmar Accountability Project filed a criminal case against the junta in a Turkish court in March alleging torture of dissidents after the 2021 coup, VOA reported. The case relies on ‘universal jurisdiction,’ which enables charges to be brought anywhere when a crime’s severity exceeds geography.

Project Director Chris Gunness explained the case is intended to spark the arrest of military government officials, or at least disrupt Myanmar’s diplomatic efforts at the UN. “The fact that the junta is in the dock for torturing and murdering its own people on an industrial scale can only isolate Myanmar’s military clique even further across the international system,” he said.

Beyond individual acts of inhumanity, the junta’s power grab continues to cause suffering throughout the country. The UN Office for the Coordination of Humanitarian Affairs stated in a 31 May report, “For the first time, the number of displaced men, women and children in Myanmar has exceeded one million. This includes almost 700,000 people displaced by the conflict and insecurity since the military takeover in February last year.”

Despite the best intentions of prosecutors and diplomatic statements about bringing pressure, neither the Kremlin nor Myanmar’s military government intend to put their own leaders and troops on trial. 

Lack of internal willpower can be all the impediment necessary to derail ICC action, as demonstrated by the Philippines.

Outgoing ICC Prosecutor Fatou Bensouda said she requested authorisation in June 2021, shortly before completing her nine-year term, for the court to follow its preliminary queries with a full investigation of Duterte’s lethal war on drugs, which was waged openly. Duterte announced in a speech shortly before his 2016 election victory, “You drug pushers, holdup men and do-nothings, you better get out because I will kill you.” 

Human Rights Watch attributed at least 2,500 deaths to the Philippine National Police and said its research uncovered falsified evidence to justify extrajudicial killings.

Although Duterte withdrew the Philippines from the ICC in 2019, Bensouda explained the legality of the court’s investigation in a prior statement: “Extra-judicial killings may fall under the jurisdiction of the International Criminal Court… if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack.”

Khan, who replaced Bensouda as head of the ICC prosecutor’s office, suspended the Philippine investigation after only two months of activity.

The freeze was likely the result of “backlash politics,” a term University of Nebraska Professor Courtney Hillebrecht used to describe actions including “withdrawals from international courts to refusals to cooperate with the courts’ work to procedural and doctrinal obstructions, such as the suspension of investigations.” 

Hillebrecht noted in a December Washington Post article that the ICC’s pullback followed the Philippine government’s announcement of plans to probe the allegations itself, thus negating the ICC’s jurisdiction.

“Given that the orders for the war on drugs came from the top – from Duterte himself – it’s difficult to believe that the country’s judicial apparatus will provide much accountability,” Hillebrecht wrote.

Chief Senior General Min Aung Hlaing attending a ceremony to mark the country’s 77th Armed Forces Day in Naypyidaw. Photo: Myanmar Military Information Team/AFP

There is more at work in Southeast Asia than the entrenchment of a repressive military government and political backlash, or even the reluctant example and tacit support of superpower nations giving cover to smaller countries. 

Legal scholar Hitomi Takemura suggested historical precedent and ingrained cultural elements contribute to the unlikelihood of ICC justice being served.

“Although the Asia-Pacific region is home to half of the global population, the people of the region, especially those living in Southeast Asian states, are apparently underrepresented at the ICC,” Takemura wrote in a 2018 article.

A professor of international law at Hitotsubashi University in Japan, Takemura noted hesitancy among Asian nations to join the Rome Statute, in part driven by Chinese legal rebuttals to the international court.

China objected to ICC obligations imposed on nations without their consent and the court unilaterally deciding whether a sovereign state “is able or willing to conduct proper trials of its own nationals.” China also determined “it is problematic that war crimes committed in internal armed conflicts fall within the jurisdiction of the ICC.”

The final point is especially relevant for Myanmar. The junta would likely claim its actions have been legitimate tactics in a civil war with rebel fighters, although the argument amounts to a deflection of evidence that could be used by the ICC, such as a 31 May Amnesty International report alleging the junta used airstrikes and other attacks as “collective punishment” against noncompliant communities. “The military’s ongoing assault on civilians in eastern Myanmar has been widespread and systematic, likely amounting to crimes against humanity,” Amnesty Senior Crisis Adviser Rawya Rageh said in a statement.

There are also cultural differences between residents of Asia and the principles of the court in the Netherlands, according to Takemura, who cited observations by Motoo Noguchi, a former Supreme Court judge in Cambodia. 

Noguchi noted general distrust of criminal justice systems resulting from perceived government corruption and a preference among Asians for “unofficial dispute settlements” outside courts. Additionally, the region’s widespread diversity and view of criminal justice as domestic matters preclude acceptance of an international justice forum.

“[I]t is understandable that states that are unable, if not unwilling, to investigate and/or prosecute serious crimes of international concern would be apprehensive about joining the ICC,” Takemura explained. “There is a need for Asian countries to have confidence in their own criminal justice systems. Then, they would not fear the ICC’s jurisdictional reach into their sovereign matters.”

As the Philippine presidency transfers to Ferdinand “Bongbong” Marcos Jr., the son of another strongman who did not shy from fatal violence, the obstructionism of backlash politics likely will continue to benefit Duterte as he moves out of the limelight. While in Myanmar, closed borders and a brutal civil war prevent the evidence gathering and diplomacy needed to try military government leader Min Aung Hlaing and apparatchiks who are far removed from a European courtroom.

The Hague will not punish the junta, nor will it judge “The Punisher.” Not due to the ICC’s lack of determination to deliver justice, but because guns and politics provide protection and cameras are pointed elsewhere.

Read more articles