COM 03/2019

Interview with Dr Lasse Schuldt, CPG and Lecturer at the Faculty of Law, Thammasat University on the International Criminal Court 

Q: Dr Schuldt, thank you for your time today. Let me jump right into the questions by asking you to give us an update on critical issues the  International Criminal Court (ICC) is facing today. 

The current critical issues regarding the ICC are mainly two issues that we can refer to. First of all, the situation regarding African countries is quite interesting. African countries have now, in recent years, adopted an increasingly critical opinion towards the ICC. A number of African countries have said that the ICC may be biased against African countries. They say that because currently, ten out of eleven situations which are dealt with by the ICC are situations in Africa. There is only one other situation in Georgia, but the vast majority of cases are African countries, such that some African governments now say that this is a biased situation. Interestingly, one country in Africa has already withdrawn from the ICC statute. That is the country of Burundi. Two other countries, South Africa and Gambia also first withdrew but then rescinded their withdrawal and joined again. Therefore, it is quite a difficult question. But to be clear, for all 124 countries that are currently member states of the ICC, they cannot raise immunities against investigations by the ICC. The second issue that is also a critical issue is the question regarding the relationship between international criminal law and immunities.


Q: Could you elaborate on that point?

The question is to what extent are international immunities or diplomatic immunities still protected against international criminal investigations. I would say the current situation is simply unclear. The customary international law has developed already into a direction towards the acceptance that international criminal law and the prosecution of these worst crimes is more important than protecting diplomatic immunities. However, you can see that a number of countries, particularly in Africa, see that differently. That is a very strong sign, also, for the development of customary international law – the practice and the opinion of governments as well. But with regards to the ICC – as soon as you are a member state to the ICC statute, you cannot raise immunities anymore.


Q: What does the situation in Southeast Asia look like?

In Southeast Asia, there are interesting developments. On the one hand, just recently, Malaysia has joined the ICC and has become the 124th country to sign the ICC statute and to become a member. (EDIT: By the time of publication, in an unexpected U-turn, the Malaysian government chose to withdraw from the ratification of the Rome Statute and has therefore not joined the ICC). At the same time, however, the Philippines is about to leave the ICC. The Philippines has, in 2018, notified that it wants to withdraw from the ICC statute, and this is becoming effective now in March 2019. Therefore, these two countries are quite an interesting situation. The other member, that needs to be mentioned in Southeast Asia, is Cambodia. Currently, there are 3 members, but as the Philippines is about to leave, it will be reduced to 2 again. That makes Southeast Asia a region with very low membership with regard to the ICC. The question to be asked is why is that so. There it is quite interesting if you take a look at the Rome Conference 1998, where the ICC statute was negotiated. Because at that conference, countries from all over the world, and many Southeast Asian countries, joined in that conference to discuss the content of the ICC statute. When you take a look at the conference, you can also look at what did Southeast Asian countries say and what were the criticisms. For example, you can see that one point of criticism that they raised was the possibility that the independent prosecutor of the ICC can bring cases to the ICC. That means that it would not be necessary that a member state refer the case to the ICC, but the prosecutor himself can do it. There are some SEA countries, for example, Indonesia and Malaysia, that have been critical about this very strong position of the prosecutor. Another issue that was raised by some of these SEA countries was the possibility that the United Nations Security Council can refer cases to the ICC even though a country is not member state of the ICC. There was also some discussion about to what extent can the security council be considered independent and neutral. Or is it made politicised or biased. That was also one worry that was shared by some Southeast Asian countries.

At the same time, we need to mention that SEA and Association of Southeast Asian Nations (ASEAN) is an association which has always been based on the principle of non-interference. That means any intervention or any interference with domestic affairs is prohibited. That also demonstrates that SEA countries are quite aware of their national sovereignty. The ICC as an international institution could investigate, if necessary, issues that take place in these countries. At the same time, however, I personally think that this criticism and fear is not really justified. Because the ICC functions according to the principle of complementarity. This principle says that the ICC is allowed to investigate only if that particular country itself is either unwilling or unable to investigate the crimes under the jurisdiction of the court. The principle of complementarity says that if a country does not investigate allegations of crimes against humanity, genocide, war crimes or aggression, then the ICC can investigate that situation. In other words, if a country takes full responsibility to investigate issues which may amount to these crimes, then the ICC will not step in and will not investigate.


Q: So the ICC will let the countries do it by themselves first?

The ICC statute has been drafted in a spirit that the primary obligation to prosecute, investigate international crimes is with the member states. They are the primary responsible countries, or the primary responsible actors to make sure that these crimes do not occur, or at least, that these crimes are properly investigated.


Q: Are there any investigations going on in Southeast Asia?

Yes, currently in SEA, there are two preliminary investigations. One preliminary investigation is dealing with the so-called drug war in the Philippines. Since Rodrigo Duterte entered the presidential office in the Philippines, a campaign to fight drugs and the drug trade has been started, and this has resulted in a number of extrajudicial killings. The numbers are still disputed, but we can say between 2,000 to 10,000 people have been killed without a trial. This situation has then been investigated, or is now being investigated, by the ICC as a preliminary investigation because this may amount to crimes against humanity. Crimes against humanity means that this could be a widespread or systematic attack against the civilian population. And if you see the numbers which go into the thousands, it may not be ruled out that in the end, the ICC may consider that this is widespread or systematic. At the same time, however, as I mentioned, according to the principle of complementarity, if the Philippines and its courts would properly investigate these charges and if there will be convictions of persons who have committed these crimes, then the ICC would take that as evidence that the ICC would not need to investigate this itself because the Philippines is itself able to investigate this.

The second situation in SEA relates to the Rohingya issue in Myanmar. The incidents of the Rohingya persecution in Myanmar have been labelled by representatives of the United Nations as a probable case of genocide. That has then also sparked preliminary investigation by the ICC. However, Myanmar is not a member state of the ICC. That means without a referral from the UN Security Council, the ICC could not investigate this if Myanmar does not want to accept jurisdiction of the ICC on an ad hoc basis. That is also possible – a country can, even though it is a member state, on an ad hoc basis say, for this particular case, we would accept the ICC jurisdiction. However, Myanmar has not done that. So how can this case then be treated by the ICC if Myanmar is not a member state and it has no SC referral? A possibility that has now been found is that Myanmar’s neighbouring country, Bangladesh, is a member state of the ICC, and the incidents that took place in the state of Rakhine in Myanmar have resulted in a mass exodus of about 700,000 Rohingya people to Bangladesh. Such that now, the preliminary investigation focuses on those acts of probable deportation from Myanmar to Bangladesh, so that then there is a connecting point in Bangladesh which is a member state of the ICC, which gives them the possibility for investigation.


Q: Would this mean that the ICC can do an investigation in Myanmar?

That is a very interesting question. The ICC is usually relying on the cooperation of its member states, now Myanmar is not a member state, so therefore, Myanmar does not have any duty to cooperate with any investigation. That would, in the end, make an investigation very difficult and very unlikely to be conducted in Myanmar territory. Currently, it seems that the preliminary investigation is focusing on what can be investigated in Bangladesh, but we will see in the future how this develops and to what extent Myanmar may be willing to cooperate with this investigation.


Q: Is there any use for international criminal law in Southeast Asia? Could you explain more about it?

There have been two examples of the use of international criminal law by courts in Southeast Asia. One example is a still ongoing example, these are the extra-ordinary chambers in the courts of Cambodia, which have dealt with crimes that have been committed by the Khmer Rouge at the time when they ruled between 1975 and 1979. This tribunal is a so-called hybrid tribunal because there are judges from Cambodia as well judges from other countries, international judges, who jointly decide cases which deal with, for example, incidents of genocide or crimes against humanity, but also other crimes which have been incorporated here. This tribunal has not operated for quite a number of years, and it now seems to be coming to its end, in November 2018, it has issued for the first time, a conviction for genocide. So two representatives of the Khmer Rouge regime have finally been found guilty for acts of genocide. The two representatives are now very old, in their 90s, but this was the first time that actually, genocidal acts were found by this Khmer Rouge tribunal. Previous convictions dealt with crimes against humanity only. The other example where international criminal law has been applied and enforced is the case of the special panels in the district court of Delhi in Timor Leste, which has dealt with incidents of violence that occurred at the time when Timor Leste was about to become an independent country, but where Indonesian security forces were trying to contain the situation, and then a number of acts of violence took place, and some of them amounted to crimes against humanity, for example. This court has finished its task already, and overall, the convictions have been not so numerous and particularly also high-ranking members of security forces have not been found guilty. So then some said it was a bit of a disappointing result, but still, this is another example of where international criminal law has been applied and enforced in Southeast Asia.