18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 4 (5 December 2019)
Name of the Event: Strengthening the role of the International Criminal Court in the Asia-Pacific region: A discussion among civil society, States, and the ICC (Side Event hosted by the Coalition for the ICC (CICC))
Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL
Main Highlights:
16 out of the 19 States Parties from the Asia Pacific region are not represented or under-represented at the ICC. There is increased momentum after the opening of investigations in Myanmar/Bangladesh and Kiribati’s accession to the Rome Statute.
Nonetheless, panelists called for concerted international efforts to strengthen civil society participation. For instance, in the Philippines, institutional support is required to protect witnesses testifying in the investigations.
Apart from cooperating with the ICC, States Parties must also strive to improve their own human rights records.
Summary of the Event:
Moderator Allison Smith (Director International Criminal Justice Program, No Peace Without Justice) welcomed the panelists. Matteo Tonella (Program Associate, CICC) then provided updates on the CICC’s strategy meeting with civil society actors in Kuala Lumpur.
The first panelist was Horia Mosadiq (Transitional Justice Coordination Group, Afghanistan). She spoke about the amount of time it took the Office of the Prosecutor to request the opening of a preliminary examination in Afghanistan. After 18 months, the ICC decided to reject the opening of a formal investigation, due to the interests of justice. This was in part because the United States was involved. In her view, it was deplorable that other States Parties did not object to the Court’s decision. She acknowledged the ongoing appeal, and called on other civil society members to support the TJCG’s plea for justice.
This was followed by a presentation by MD Ashrafuzzaman (Asian Legal Resources Center). He began by offering congratulations to Bangladesh for its cooperation with the ICC which led to the authorization of the investigation. However, he noted that there were aspects in which Bangladesh could have fared better. For instance, when Bangladesh called for a special session of the Human Rights Council in 2017, it also signed a bilateral agreement with Myanmar. Preliminarily, this agreement was not sufficiently comprehensive. Moreover, it excluded the participation of the international community, he noted.
Secondly, MD Ashrafuzzaman spoke of the way that relocation was being carried out in Bangladesh. The government was attempting to relocate nearly 100,000 refugees to an island called Vasanchor. However, this relocation poses security risks to the refugees considering the island is fully submerged during some seasons. It could also isolate the Rohingya refugees from the rest of the population.
Thirdly, he discussed the ban on cellphones that took effect in September 2019. Arguably, this was done to avoid witness tampering. However, on the flipside, Rohingya victims may not be able to then submit evidence recorded on such devices.
Finally, he spoke of the human rights situation in Bangladesh. He noted that from 1 January to 30 November 2019, 48 people were extrajudicially killed. However, civil society and the media do not have access to this information because it is censored by the government. This could give the idea that impunity is entrenched in the rule of law in the state. In conclusion, he acknowledged that Bangladesh’s human rights track record was not scrutinized by the international community because in accepting the Rohingyas, Bangladesh had actually saved many other countries this expense. Therefore, it is crucial to continue to call for a democratic rule of law in the state. This would also sustain the momentum created by the ICC decision.
Usha Kula (Bar Council Malaysia, Malaysian CICC) then briefed the audience on the progress made by CICC Malaysia. In particular, the outreach efforts undertaken in the wake of Malaysia’s backtracking on its accession to the Rome Statute. This was followed by a short presentation by Butch Olamo (Philippines CICC). Preliminarily, Olamo spoke of the budgetary constraints under which civil society had to operate in the Philippines. The Philippine state was also unsupportive towards human rights organizations. Notably, last year, president Duterte assigned a 20-dollar budget to the National Commission of Human Rights. Furthermore, he voiced concerns regarding the consequences of Philippines’ withdrawal, one of which was the worry that victims cannot avail of the Trust Fund for Victims benefits on account of the withdrawal. A representative from the ICC Presidency later clarified that there is no rule in the Statute that disqualifies victims from receiving physical, psychological or economic support. However, victims will face challenges in practical implementation because the TFV requires the cooperation of the state, which the Philippines is not necessarily bound to provide after its withdrawal. Olamo made a final point about the threats made by the Philippines to obstruct the ICC investigation. President Duterte had announced that he would jail the prosecutor when she goes to the Philippines and witnesses were threatened with sedition charges. CICC Philippines has been working to ensure witness protection. However, it will require institutional support from the international community to facilitate the progress of the investigation. In conclusion, he called for more solidarity, especially within the Asia-Pacific. He also cautioned against allowing the ICC review process to sidetrack the ongoing investigation.
Christian Mahr (Director-External Operations Division, ICC) then provided his comments. He first welcomed Kiribati’s ratification of the Rome Statute and referred to it as a ray of hope amidst the trust deficit in the Court after the Philippines’ withdrawal. He also spoke of the need to increase the representation of the Asia-Pacific, not only in membership, but also within the staff of the Court. Notably, 16 out of the 19 states parties from the region are either not represented or under-represented at the Court. In order to redress this, he called on States Parties to “own” the Rome Statute, to see it as an instrument to secure their interests. He stressed that both the Court and the States Parties must strive towards a common understanding of goals.
The President of the ASP President O-Gon Kwon then joined the meeting. He announced that the Bureau agreed to present the names of the 9 experts for the review process. Priya Pillai (Asia Justice Coalition) asked the ASP President whether there is a more cohesive way for the ASP to involve non-states parties like India, China, and Pakistan. Usha Kula asked the ASP President about the possibility of the outreach department receiving a larger budget. Noting that the Court did not have the luxury of resources for anything other than investigations, the ASP President nonetheless assured the participants of best efforts to improve outreach and cooperation in the region.