The Maldives’ decision to accept the jurisdiction of the International Criminal Court (ICC) will provide many opportunities to improve the country’s domestic legal system but is a significant commitment, according to Evelyn Balais-Serrano, Asia-Pacific Coordinator for the ICC’s advocacy NGO the Coalition for the International Criminal Court (CICC).
Parliament voted almost unanimously on June 14 that the Maldives sign the Rome Statute of the ICC, the founding treaty of the first permanent international court capable of trying perpetrators of genocide, crimes against humanity, and war crimes.
In October 2010, MPs clashed over signing the Rome Statute, using the debate to condemn the “unlawful and authoritarian” practices of the previous government, while MPs of the opposition Dhivehi Rayyithunge Party-People’s Alliance (DRP-PA) coalition MPs accused the current administration of disregarding rule of law and negating parliamentary oversight.
President Mohamed Nasheed had sent the matter to parliament for ratification. Following the hour-long debate, during which time DRP MP and recently-dismissed Judicial Services Commission member Dr Afrashim Ali insisted that the convention should not be signed if it could lead to “the construction of temples here under the name of religious freedom,” a motion by DRP MP Dr Abdulla Mausoom to send the matter to committee was passed 61-4 in favour.
Last week, parliament voted 61-3 in favour of signing the treaty, on the recommendation of the national security committee.
“A major benefit of [ratifying] the treaty is the opportunity for judges and lawyers to participate in exchange and internship programs,” Balais-Serrano told Minivan News, explaining that the domestic legal system of many countries had benefited through exposure to the ICC.
Didactic benefits aside, the decision has ramifications for Maldivian law. Implementing the treaty requires a national commitment to adjust domestic law where it conflicts with the Rome Statute, “or to find ways for it to align,” Balais-Serrano told Minivan News.
One possible reason for the slow uptake of the Rome Statute in Asia is its position on capital punishment – the death penalty – which is legal in many countries in the region but is not present in the ICC treaty, “as are laws concerning immunity, protecting monarchs and members of the royal or ruling family [from prosecution].”
Ratifying the treaty is a pledge to make those revisions, Balais-Serrano said, and to make sure such laws were present whenever crimes under the ICC’s jurisdiction were committed.
She noted that the CICC’s experience was that despite initial concerns in some countries regarding clashes between the legal obligations of ICC signatories and Islamic Sharia law – as in the case of the death penalty – Sharia experts in ICC signatories Afghanistan, Jordon and Malaysia had found no conflict between the Rome Statute and Sharia.
Balais-Serrano acknowledged “frustrations” on behalf of people and governments over misconceptions of what crimes fell under the ICC’s jurisdiction.
“For example, in Bangkok there is a debate between the red and yellow shirts about how to use the ICC to get rid of each other,” she noted.
‘The ICC only covers major crimes, such as genocide, war crimes, crimes against humanity and crimes of aggression. Crimes must be widespread, systemic and of concern to the international community. The ICC does not deal with small cases, even if the victims may be in the hundreds.
“Also present is the concept of command responsibility – the ICC only deals with the big fish. In the past only the small fish may have been sacrificed to show a semblance of justice – but the ICC targets the highest level of responsibility: the head of state, generals, kings.”
Another benchmark for whether the ICC would consider taking on a case was willingness and capacity on behalf of a country’s own judiciary to handle such contentious cases.
Currently the ICC is investigating situations in the Democratic Republic of the Congo, Uganda, Central African Republic, Darfur, Sudan, Kenya and Libya.
Sri Lanka was an emerging candidate, she noted, following the UN’s claim that videos of alleged insurgents being executed by government soldiers were genuine and evidence of war crimes.
“That was how Dafur started,” Balais-Serrano said, explaining that outside an invitation from the Sri Lankan government, the UN’s launching an international investigation would require a mandate from either the UN Security Council, or the UN Human Rights Council.
“China will block [an investigation] in the UN Security Council, so the emphasis is on the Human Rights Council [of which the Maldives is a member],” Balais-Serrano said.
Foreign Minister Ahmed Naseem has previously described the UN’s report into the closing days of Sri Lanka’s civil war as “singularly counterproductive.”
Ratifying the Rome Statute would also have diplomatic ramifications, Balais-Serrano agreed.
“Becoming a member of the ICC can increase a country’s prestige and reputation, through its commitment to human rights,” she said.
“But it also adds pressure to a government to fulfill its obligations as a signatory, and not pay only lip service to human rights and its other international commitments.”