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Asia has contributed to the growth of International Criminal Law: the Tokyo War Crimes Tribunal and the post-WW2 national trials against the Japanese, the Cambodian proceedings against Khmer Rouge leaders, the trials from the East Timor independence struggle, and most recently, the International Criminal Court (ICC) cases against former Philippine President Rodrigo Duterte for murders committed in his “War on Drugs” and against a Burmese general for the genocide against the Rohingya. The principle of command responsibility actually originates from the trial of General Tomoyuki Yamashita in Manila, and was upheld all the way to the U.S. Supreme Court.
Yet Asia is the least represented region in the Rome Statute that establishes the ICC. The theme of “Asia’s ambivalence” to international law has been deeply and admirably analyzed by distinguished scholars at NUS. I propose to pursue that same theme in relation to ICL in particular: the selectivity in the cases and crimes being prosecuted; the creativity entailed in getting mass atrocity crimes to fit within a judicially manageable trial; the lingering resonance of the “sovereignty” argument vis-à-vis the complementarity principle which says that the ICC is a court of last resort which steps in only after the national state has shown itself “unwilling or unable” to prosecute.
I propose that Asian states hesitate to join the International Criminal Court not because it is international but because it is a court. After all, if domestic courts are seen as politically vulnerable and manipulable, why trust a global court to be any different?