It was hard to miss the irony: A conference urging regional leaders to join a new international court was being held in Cambodia, where former leaders of one of the worst genocides in history govern towns and live in mansions.
Officials showed no emotion last Tuesday as Prime Minister Hun Sen urged his neighbors to ratify the treaty establishing the court: “Peace, security and well-being cannot be sustained and stabilized without justice,” he said.
But for conference organizers, Cambodia was an obvious choice. It is one of only three countries in Asia to have ratified the court, the world’s first permanent judicial body with jurisdiction over war crimes and other atrocities. The other two are Mongolia and Tajikistan.
With all the publicity over the court’s launch in the Netherlands in July, and over the US’ refusal to ratify it, the fact that Asia—along with Russia, the Middle East and large swaths of Africa—has largely opted out has gone largely unnoticed. China, India, and Japan never even signed the treaty, the first step to ratification.
At stake is Asia’s standing in the world community, as well as the perceived legitimacy of the court, European Parliamentarian Gianfranco Dell’Alba told the officials. “Asia cannot remain unrepresented in this historic process,” he said.
Khmer Rouge rebels no longer stalk the Cambodian countryside, and the court only covers crimes occurring after it was established. But insurgencies are still hot elsewhere in Asia, leading to fears that the court could become a tool for rebels seeking political or propagandistic ends. That’s a problem Europe doesn’t face, says Magdangal De Leon, assistant solicitor general in the Philippines.
“It is the military and police who are opposing this,” De Leon said. “It’s difficult for us to convince them because they’re the ones out there fighting the rebels, while we’re safe in Manila.”
But some countries plagued by terrorism have ratified the treaty nonetheless, De Leon observed, including Colombia and Peru. Other troubled countries to have ratified include Sierra Leone and the Congo.
Conference organizers said they chose Cambodia as host to spur other countries to ratify. But the Cambodia example may also serve to point up the challenge of conducting international prosecutions—or any legitimate human-rights prosecutions—in a region where the concept of rights is relatively new and rights are still spottily enforced.
Years of negotiations between Cambodia and the UN toward a joint Khmer Rouge tribunal collapsed in February after a long stalemate over the court’s composition. In Indonesia, the government fended off calls for an international tribunal on the East Timor massacres with a domestic tribunal that has meted out light sentences while letting off the top brass. Meanwhile, international tribunals on atrocities in Rwanda and the former Yugoslavia have plunged ahead.
Southeast Asian nations have long guarded their much-vaunted sovereignty, often at the price of international agreements. Asean’s policy of “non-interference” in internal affairs has led to accusations that the body is toothless.
Thailand, meanwhile, is troubled that the court’s refusal to exempt heads of state could affect its king, who like Cambodia’s King Norodom Sihanouk is constitutionally inviolable, said Thitichai Saengpithaks of Thailand’s legal affairs department. But Britain, the Netherlands and Cambodia, which all have ceremonial monarchs, have all signed.
Vietnamese and Laotian officials claimed their legal systems were not developed enough to accommodate the court. Ratifying countries must have their own laws covering crimes against humanity or risk losing their right to prosecute their own nationals, legal experts at the conference said.
Conference participants observed that their legal systems had differing rules of evidence, definitions of crimes, or other distinctions from the international court. But those concerns shouldn’t keep countries from ratifying the treaty, said Darryl Robinson, a Canadian expert on the court. “This doesn’t require a radical reconstruction of the justice system,” he said.
Then there is the US, which has been urging bilateral treaties throughout the world to guarantee that nations will not hand US citizens over to the court. The Philippines signed such a treaty when it accepted US military advisers to help it deal with insurgents, De Leon said. By not ratifying the court, US military allies can head off the threat of US sanctions over the treaty, said Olivia Swaak-Goldman, a Netherlands jurist at the conference.
Conference organizers did not invite the US to the conference. “It would have been useless to invite them,” said Cristina Gates, of the Center for Restorative Justice in Asia.
According to the treaty, the court only swings into action when national governments are “unwilling or unable genuinely” to investigate or prosecute crimes. Some Asian leaders are waiting to see if that principle will hold up, Swaak-Goldman said. “Once they see this in action, they should be a little less frightened about losing their sovereignty,” she said.
The court might actually help governments fighting insurgencies, some experts said. While terrorism itself is not classified as a crime against humanity, some terrorist acts “could be serious enough to constitute war crimes or crimes against humanity,” Robinson said.
But an Indonesian official, citing the East Timor trial, worried that the provision could still leave room for the international court to take over a case. “How do you define unable or unwilling to prosecute?” asked Romli Atmasasmita, director general for legal administrative affairs in Indonesia’s Ministry of Justice.
The conference, a follow-up to one held last year in Manila, was one of several around the world sponsored by European governments and advocacy groups. Mid-level bureaucrats and advisers listened patiently as a procession of mostly European legal advisers assured them that the court would not interfere in their internal affairs. They spoke on subjects such as “the Netherlands experience” and “the German experience” with court ratification.
Raul Pangalangan, dean of law at the University of the Philippines, assured the audience that there was a tradition of international human-rights tribunals in Asia, referring to a series of trials of Japanese military to punish atrocities committed during World War II.
But for now, only Pacific islands and the tiniest and least-powerful Asian countries seem ready to back the newest effort to uphold human rights in the region.
“Our history is full of atrocities and violations of human rights,” said Joao Camara Freitas of East Timor’s foreign affairs ministry. East Timor has acceded to the court treaty, one step from ratification. “We want to help create a world where that cannot happen again.”