International Criminal Law with Asian Characteristics


INTERNATIONAL CRIMINAL LAW WITH ASIAN
CHARACTERISTICS?
Simon Chesterman

Abstract
The history of international criminal law typically effaces Asian experience of
the topic. This is partly because incidents such as the Tokyo Trial disclose
racial and colonial biases that are now seen as embarrassing. Yet failing to
engage with Asian experience also impoverishes our understanding of the
possibilities and limitations of international criminal law. In particular,
pragmatic adaptation of "universal" principles in various Asian jurisdictions
offers a helpful lens through which to view the inherent tension between
legitimacy and effectiveness in international criminal trials: the desire for
legitimacy that goes beyond a state whose leaders may have engaged in
unspeakable acts; the need for effectiveness at the local level if any resolution
of a conflict is to be enduring. A more nuanced understanding may also help
explain an apparent paradox: despite having a long tradition of restrictions on
the conduct of hostilities, Asian states today are twice as unlikely to have
accepted the jurisdiction of the International Criminal Court when compared
with any other region.

Author
B.A. Hons., LL.B. Hons. (Melb.); D.Phil. (Oxon.). Dean and Professor, National
University of Singapore Faculty of Law. This article was first presented at the
conference "Trials for International Crimes in Asia," organized by the Centre
for Asian Legal Studies at the National University of Singapore Faculty of Law
on 17-18 October 2013. Many thanks to Kirsten Sellars and an anonymous
reviewer for their comments on earlier drafts of this text. Errors and omissions
remain the author's alone.



130 Columbia Journal ofAsian Law, Vol. 27, No. 1 (2013)

INTRODUCTION 131

1. EUROPE AND INTERNATIONAL CRIMINAL LAW 132
A. Medieval Europe to the First World War 133
B. Nuremberg 135
C. The Former Yugoslavia 138
D. International Criminal Court 139

II. THE ASIAN EXPERIENCE 140
A. Prosecutions After the Second World War 142

1. International Military Tribunal for the Far East 143
2. Other Prosecutions by Western Allies 145
3. Russia 146
4. China 147
5. The Legacy of the Post-War Trials 148

B. Hybrid Tribunals 149
1. Timor-Leste: Special Panels of the Dili District Court

(2000-2006) 149

2. Extraordinary Chambers in the Courts of Cambodia (2oo6-) 150
3. Lebanon: The Special Tribunal for Lebanon (2009-) 151

C. Domestic Tribunals 152
i. Bangladesh (1973, 2009-) 153
2. Indonesia (2000-) 153
3. Iraq (2005-) 154
4. Sri Lanka? 154

III. ASIAN CHARACTERISTICS? 155

CONCLUSION 157.

APPENDIX: SELECTED INTERNATIONAL AGREEMENTS BY UN REGIONAL
GROUPING IR



International Criminal Law With Asian Characteristics? 131

INTRODUCTION

The history of international criminal law has been, for the most part, a
European tale. Though it was American insistence that prevented the
summary execution of hundreds or thousands of German officers after the
Second World War-an approach favored by Churchill and seriously
contemplated by Stalin-the United States later backed away from serious
engagement in international criminal law, concerned among other things that
its own citizens should not be subject to its jurisdiction. The iconic venues of
crimes and their prosecution are also European: Auschwitz and Nuremberg
are the touchstones, with modern counterparts in Bosnia and The Hague. The
result is that in most accounts, the non-European experiences of international
criminal law tend to be treated as poorer and more troubled siblings. Lack of
resources has bedeviled African tribunals in Rwanda and their hybrid
counterparts in Sierra Leone and elsewhere. In Asia, political tensions have
featured prominently-whether one is considering the International Military
Tribunal for the Far East or the Extraordinary Chambers in the Courts of
Cambodia.

Any survey of the troubled history of international criminal law highlights
the difficulties facing the tribunals tasked with upholding it: often burdened
with unrealistic expectations of punishing the guilty, resolving societal
conflicts, deterring future misconduct, and providing an authoritative history
of a traumatic period. Yet most renderings of that history overlook some of the
important legal developments that have taken place outside Europe.

There is, however, much to learn from a closer examination of the Asian
experiences of international criminal law. Not all of it is positive. But a clear-
eyed view of this under-studied history offers a provocative lens through
which to view the possibilities and limitations of this relatively new set of laws
and institutions. In particular, the pragmatic adaptation of "universal"
principles in various Asian jurisdictions illustrates the inherent tension
between legitimacy and effectiveness in international criminal trials. On the
one hand, such trials must aspire to a legitimacy that goes beyond a state
whose leaders may have engaged in unspeakable acts. At the same time, those
trials require sensitivity to local context if their results are to be effective and if
any resolution they seek to impose is to be enduring.

It should be noted from the outset that the category "Asia" is not used
here to suggest that there is a single Asian experience of or perspective on
international criminal law. Nevertheless, as a loose regional grouping,' Asian
countries arguably have the longest history of exposure to regulation of the
laws of armed conflict and yet today are the least likely to have accepted the
jurisdiction of the International Criminal Court (ICC). Whereas almost two-
thirds of the states in Africa and more than three-quarters of those in Europe

'For present purposes, the Asia-Pacific Group at the United Nations will be taken to
define the list of "Asian" countries. See the table in Appendix 1.



Columbia Journal of Asian Law, Vol. 27, No. 1 (2013)

and the Americas have ratified the Rome Statute2 , less than one-third of Asian
states have done so.3 Understanding this reticence depends in part on
understanding the history of how international criminal law came to be used
after the Second World War and subsequently applied in selective cases
through the end of the twentieth century and the beginning of the twenty-
first.

To put that experience in context, this article first surveys briefly the
European history of international criminal law. As we will see, that survey
would commonly be regarded as a fairly complete history of the subject. Part 2

then considers the alternative history of international criminal law as it has
been experienced in Asia, focusing on the international tribunals established
after the Second World War, the more recent experiments with hybrid
institutions, and a few cases of domestic prosecutions. Finally, Part o expands
on the legitimacy-effectiveness dynamic and explores whether such an
account can explain the ongoing wariness of Asian states to embrace
international criminal law, either through implementing it in hybrid or
domestic prosecutions or submitting themselves to the jurisdiction of the ICC.

I. EUROPE AND INTERNATIONAL CRIMINAL LAW

Before considering regional variation in the history of international
criminal law, it is first necessary to determine the scope of our subject matter.
"International criminal law" is a novel body of law that addresses an old
problem. Historically, it might have been applied most properly to the crime
of piracy-a problem that continues today, although it tends to be considered
separately in treatments of international criminal law. Today, when we say
"international criminal law," do we emphasize the "international" component:
the institution that tries individuals not in a domestic court but a truly
international tribunal? This appears to have been the view of the International
Court of Justice in its 2002 Arrest Warrant case.5 Or do we stress the
"international criminal" aspect, focusing on the individuals who commit acts
that "shock the conscience" of humanity and may be put on trial by any right-
thinking state? Or is our focus the body of "international criminal law,"
meaning that prosecutions must be for violations of treaties or customary
international law?

2 Statute of the International Criminal Court (Rome Statute), July 17, 1998, U.N. Doc.

A/CONF.i8 3/ 9 , available at http://www.icc-cpi.int/nr/rdonlyres/eagaeff7 -57 52-4 f84 -
be94-oa655eb3oe16/o/rome-statute-english.pdf.
3 See Table i in Part o. Complete statistics are provided in Appendix I.
4 See, e.g., ROBERT J. BECKMAN & J. ASHLEY ROACH, NUS CENTER FOR INTERNATIONAL LAW,

PIRACY AND INTERNATIONAL MARITIME CRIMES IN ASEAN: PROSPECTS FOR COOPERATION

(2012).)

5 Arrest Warrant of ii April 2000 (Dem. Rep. Congo v. BeIg.), 2002 I.C.J. 3, 9 61 (Feb. 14,

2002), available at file:///Users/naralee/Downloads/ 5 .%2oArrest%2oWarrant%200f/
2011%2oApril%202000.pdf., (referring to "certain international criminal courts.")



International Criminal Law With Asian Characteristics?

This article will focus primarily on prosecutions of individuals by
international institutions, as well as prosecutions by hybrid and, to a lesser
extent, domestic institutions for violations of specific international crimes: in
particular, aggression, war crimes, crimes against humanity, and genocide. Not
coincidentally, these are the crimes now codified in the Rome Statute.6 What
this means is that investigations and prosecutions at the domestic or
international level for other wrongs will be excluded-notably piracy, slavery,
torture, and other violations of human rights. These are worthy subjects of
investigation and indeed of particular interest for how they have been
interpreted and applied, or disregarded, in Asia.7 But that would be a topic for
another article.

A. Medieval Europe to the First World War

The history of international criminal law, in particular war crimes, is
inextricably bound to the history of war.8 Rules for the conduct of hostilities
can -be found in most ancient human civilizations and documented
prosecutions of persons for violating accepted limitations on the conduct of
armed conflict are found in the Middle Ages.'0 Yet the history of international
criminal law can be traced back only a few hundred years. One early example
that is often cited-predictably, from Europe-is the trial of Peter Von
Hagenbach in 1474, convicted by a tribunal of twenty-eight judges from
Austria and its allies for crimes against the "laws of God and man" following
his reign of terror over the citizens of Breisach."

6 Rome Statute, supra note 2.

7 See, e.g., RANDALL PEERENBOOM, CAROLE J. PETERSEN &ALBERT H. Y. CHEN, HUMAN RIGHTS
IN ASIA: A COMPARATIVE LEGAL STUDY OF TWELVE ASIAN JURISDICTIONS, FRANCE, AND THE

USA, (2006).

8 Some passages in this section draw upon material first published as Simon
Chesterman, Never Again ... and Again: Law, Order, and the Gender of War Crimes in
Bosnia and Beyond, 22 YALE J. INT'L L. 299 (1997) and Simon Chesterman, No Justice
Without Peace? International Criminal Law and the Decision to Prosecute, in CIVILIANS
IN WAR 145 (2001).

' Examples of early writings on humanitarian limitations on the conduct of hostilities
are found in Sun Tzu's The Art of War written in the sixth century B.C. See SUN-TZU SUN
PIN, THE COMPLETE ART OF WAR 462-66 (1996). In Ancient Greece, Herodotus describes
an incident in which enemy envoys were killed as "confessedly a transgression of the
[laws of men], as a law of the human race generally, and not merely as a law applicable
exclusively to the barbarians." M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN
INTERNATIONAL CRIMINAL LAW 50 (2nd ed. 1999).

'0 See generally M.H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES (1965); THEODOR
MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS: PERSPECTIVES ON THE LAW OF WAR IN THE
LATER MIDDLE AGES (ist ed.1994).

"See, e.g., 2 GEORG SCHWARZENBERGER, INTERNATIONAL LAW: As APPLIED BY INTERNATIONAL
COURTS AND TRIBUNALS (1968). On the trial of von Hagenbach, See Gregory S. Gordon,



134 Columbia Journal of Asian Law, Vol. 27, No. i (2o13)

Yet international law as such did not meaningfully exist until Europe
emerged from the medieval period and the vertically structured hierarchies
under Pope and Emperor came to be replaced by the horizontally organized
system of sovereign states, formally established in the 1648 Peace of
Westphalia.'" Laws governing the conduct of war continued to develop, but
the content varied from state to state and prosecutions were inconsistent. One
of the first attempts to formulate a codification of the laws of war was the U.S.
Lieber Code,'3 but it was not until the adoption of The Hague Conventions of
1899' and 19o7'5 that the subjects of the international legal system agreed to
international laws of war binding on state parties. At the same time, despite
the lack of collective machinery to enforce the Conventions, there was
evidence of a growing awareness of the humanitarian obligations on states and
of demands for criminal sanctions in response to their violation.'6

It was not until the First World War, however, that widespread calls were
made for the trial of those responsible for perpetrating atrocities of
unprecedented brutality. There were numerous instances of war crimes trials
held by individual Allied States, but it was Turkey's attempts to exterminate
the Armenians that garnered support for truly international action.'7 Despite
the significance of a declaration introducing the notion of "crimes against
humanity,"'8 the failure of the Allies to make good on their threats found a

The Trial of Peter von Hagenbach: Reconciling History, Historiography, and
International Criminal Law, THE HIDDEN HISTORIES OF WAR CRIMES TRIALS 13 2013).

"2 See generally Simon Chesterman, An International Rule of Law?, 56 AM. J. COMP. L. 331

(2008).

"3 Instructions for the Government of Armies of the United States in the Field (Lieber
Code), Apr. 24, 1863, available at http://www.icrc.org/ihl/INTRO/io?OpenDocument.

4 Convention (11) with Respect to the Laws and Customs of War on Land and Its
Annex: Regulations Concerning the Laws and Customs of War on Land (1899 Hague
Regulations), July 29, 1899, available at http://www.icrc.org/ihl/INTRO/5o?
OpenDocument.

,s Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex:
Regulations Concerning the Laws and Customs of War on Land (1907 Hague
Regulations), Oct. 18, 1907, 36 Stat 2277, 1 Bevans 631, available at
http://www.icrc.org/ihl.nsf/INTRO/195.
'6 See, e.g., 1 JAMES WILFORD GARNER, INTERNATIONAL LAW AND THE WORLD WAR 19-35
(1920), available at https://archive.org/details/internationallawolgarnuoft; ERIK J. S.
CASTREN, THE PRESENT LAW OF WAR AND NEUTRALITY 20-22 (1954).

'7 ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 71-74 (1990); cf. Vahakn N.
Dadrian, Genocide as a Problem of National and International Law: The World War I
Armenian Case and Its Contemporary Legal Ramifications, 14 YALE J. INT'L L. 221, 223-29

(1989).
,8 BASSIOUNI, supra note 9, at 168.



International Criminal Law With Asian Characteristics? 135

monument in Hitler's chilling 1939 dictum: "Who, after all, speaks today of the
annihilation of the Armenians?"'9

The Treaty of Versailles, signed in 1919, had contained provisions for an
international tribunal that was to try the German Emperor (Kaiser), though
the Dutch authorities refused to extradite him and the proposed tribunal
never met. Seventeen trials were later held in Leipzig; almost half ended in
acquittals and the maximum sentence handed down was ten years. °

B. Nuremberg

The Nuremberg trials of the major Nazi war criminals after the Second
World War are rightly seen as a pivotal moment in international criminal law.
In his opening arguments before the Tribunal on 21 November 1945, U.S. Chief
of Counsel Justice Robert H. Jackson presented the trials as a historic victory
for the rule of law:

That four great nations, flushed with victory and stung with injury, stay
the hand of vengeance and voluntarily submit their captive enemies to the
judgment of the law is one of the most significant tributes that Power has ever
paid to Reason.

Even in the closing moments of the war, however, it was far from clear
that the Allies would pursue legal avenues to punish the Nazi leadership.
British Prime Minister Winston Churchill, for example, had favored the
summary execution of fifty or so leading members of the Nazi apparatus.
Stalin approved; in a "semi-jocular" recommendation he suggested that 5o,o00
German general staff officers be shot."

This exchange is commonly dismissed as an aberration, but it was a
serious proposition at the time. Such an approach enjoyed the virtues of
simplicity and candor. It would spare the Allies the tedious process of
organizing the mechanisms and material necessary to present a watertight
case, precluding legal rationalizations and dilatory tactics that the guilty might
employ to delay their judgment. Crucially, the victors would not be required to
"disguise a punishment exacted by one sovereign upon another by appeal to

'9 KEVORK B. BARDAKJIAN, HITLER AND THE ARMENIAN GENOCIDE 6 (1985). Following the
conclusion of the war, the Treaty of SRvres, which included special provisions for the
trial of those responsible for the Armenian massacre, was never ratified. The Treaty of
Lausanne, which replaced it, included a "Declaration of Amnesty" for crimes
committed during the war. See generally Treaty of Peace with Turkey, July 24, 1923, 28
LNTS ii.
20 See Alan Kramer, The First Wave of International War Crimes Trials: Istanbul and

Leipzig, 14 EUROPEAN REV. 441, 448 (2006).

212 Trial of the Major War Criminals Before the International Military Tribunal, 99,

(1947).9
22TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 29-30
(1992).



136 Columbia journal of Asian Law, Vol. 27, No. 1 (2o13)

the neutral instrument of the law."2 3 In short, it would be framed as the
conclusion of military activities rather than a trial that would be seen as
"victor's justice."

That this extrajudicial course was avoided was largely due to American
involvement. Henry L. Stimson, the U.S. Secretary for War, believed that a
duly constituted international tribunal would have a greater effect on
posterity; it would be harder for the Germans to claim (as they had of the
Treaty of Versailles) that admissions of war guilt had been exacted under
duress. 4 President Roosevelt wavered, but his successor, Harry S. Truman, had
utter contempt for the British solution of summary executions. Stalin ended
up supporting trials also, in part for the propaganda opportunities such a
spectacle would offer. 5 In any event, the final decision to cede "Power . . . to
Reason" was formalized on a particularly inauspicious date. In one of history's
more brutal ironies, the agreement that established the Nuremberg trials-
power's celebrated tribute to reason-was signed by the Allies within twenty-
four hours of the United States dropping its second atomic bomb on Japan.

These debates highlight competing objectives in the Allies' decision to
prosecute the Nazi leadership for war crimes. 6 The retributive element was
clear from the earliest preparations for war crimes trials. The second desired
outcome of the Nuremberg trials was that they should serve a deterrent
function. This stemmed in part from the view that the Second World War
might have been prevented if the initiators of the First had been justly
punished. 7 Similarly, the International Military Tribunal for the Far East and
other war crimes tribunals allocating individual responsibility were expected
to reach individual actors and, presumably, to deter other individuals from
performing such acts in future.28 The applicability of international law to
individuals came to constitute the first of the "Nuremberg Principles" adopted

23 Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the

Nuremberg Tribunal, 105 YALE L.J. 449, 457-58 (1995). In the case of the Israeli
prosecution of Adolf Eichmann, the difficulties in extraditing him from Argentina led
to "frequent" mention of the alternative of"kill[ing] him there and then, in the streets
of Buenos Aires": HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY

OF EvIL 265 (1963).

'
4 GEOFFREY ROBERTSON, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE 199

(1999).

25 Francine Hirsch, The Soviets at Nuremberg: International Law, Propaganda, and the

Making of the Postwar Order, 113 (3), AM. HIST. REv. 701, 703 (2oo8).

26 It was understood that such prosecutions would also apply to the Japanese, but the

emphasis was on the Nazi leadership.
27See Chesterman, supra note 8, at 304-05.

28 See, e.g., Egon Schwelb, Crimes Against Humanity, 23 BRITISH YEARBOOK INT'L L. 178,

198-99 (1947).



International Criminal Law With Asian Characteristics? 137

in 1950.29 Over the course of the trials in Nuremberg, this was justified by
reference to the precedent established by piracy as an international crime,30 to
international duties that "transcend the national obligations of obedience
imposed by the individual state,"3' and to the results that would flow from
allowing individuals to hide behind the veil of sovereignty:

The principle of personal liability is a necessary as well as logical one if
International Law is to render real help to the maintenance of peace. An
International Law which operates only on states can be enforced only by war
because the most practicable method of coercing a state is warfare .... Only
sanctions which reach individuals can peacefully and effectively be enforced.'

The Nuremberg trials thus marked a significant development in the law,
but the political and historical circumstances that made them possible came to
be seen as unique to the Second World War.33 The trials presaged legal
instruments codifying the crime of genocide in 1948 4 and the laws of war in
1949,"5 but attempts to create a comprehensive regime of individual criminality
soon foundered. The International Law Commission adopted a Draft Code of
Offenses against the Peace and Security of Mankind in 1954,36 but then
suspended work until 1983. With the notable exception of episodic national
prosecutions of Nazi war criminals, the field of international criminal law
remained essentially dormant in Europe for most of the latter half of the
twentieth century.37

9 Principles of International Law Recognized in the Charter of the Niirnberg Tribunal

and in the Judgment of the Tribunal, July 29, 1950, 5 GAOR Supp. (No. 12), UN Doc.
A/1316. )
3°The analogy with piracy is questionable at the least; the prosecution of pirates falls
within international criminal law as their crimes do not fall within the jurisdiction of
any one state: See, e.g., A. Carnegie, Jurisdiction over Violations of the Laws and
Customs of War, 39 BRITISH YEARBOOK INT'L L. 421 (1963).

3122 Trial of the Major War Criminals Before the International Military Tribunal, 466,
(1948).

32 ROBERT H. JACKSON, THE NORNBERG CASE, 88, (1947).

31 Indeed, early criticisms of the Yugoslav Tribunal argued that a juridical resolution to
a conflict is possible only when "an army sits atop its vanquished enemy." Kenneth
Anderson, Nuremberg Sensibility: Telford Taylor's Memoir of the Nuremberg Trials, 7
HARV. HUM. RTS. J. 281, 292 (1994).

'Convention on the Prevention and Punishment of the Crime of Genocide, Dec.
9,1948, 78 UNTS 277.

3 See Convention Relative to the Treatment of Prisoners of War (Third Geneva
Convention), Aug. 12, 1949, available at
http://www.icrc.org/ihl/INTRO/37 5?OpenDocument I Convention (IV) Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug. 12,

1949, available at http://www.icrc.org/ihl/INTRO/38o.
36 [1954] 2 Yearbook of the International Law Commission 140.

37 See TIMOTHY L. H. MCCORMACK & GERRY J. SIMPSON, THE LAW OF WAR CRIMES: NATIONAL
AND INTERNATIONAL APPROACHES (1997).



Columbia journal ofAsian Law, Vol. 27, No. i (2o13)

C. The Former Yugoslavia

The political and legal impediments to international criminal prosecution

after Nuremberg were overcome in 1993 when the United Nations Security
Council adopted Resolution 827 establishing the International Criminal
Tribunal for the former Yugoslavia (ICTY). As in the case of the Nuremberg
Trials this was a quasi-judicial body, established by one group of states to try
the nationals of others. Its creation was made possible by the conjunction of
three factors: the unprecedented unanimity of the Security Council in the
heady days of what U.S. President George H.W. Bush had termed the "new
world order;" the savagery of such a conflict in Europe that recalled the images
of Nazi concentration camps; and the frustration, particularly on the part of
the United States, at the failure of other methods to stem the flow of blood?8

This decision to commence prosecutions while the conflict continued was
a substantial departure from the Nuremberg mold. Some commentators
interpreted this as attempting to achieve through law what the international
community was not prepared to achieve through force. 9 Others saw it as
having far more modest goals. For instance, Richard Holbrooke, architect of
the 1995 Dayton Accords, noted that the Tribunal was initially viewed as "little
more than a public relations device."4"

The ineffectual response to the war in the former Yugoslavia was echoed
in Rwanda with even more devastating consequences for the civilian
population. After hand-wringing inaction during the genocide in April to July
1994, a parallel tribunal was created with almost undignified haste. The
International Criminal Tribunal for Rwanda (ICTR) borrowed most of its
Statute from the ICTY and shared the same Prosecutor-based over 4,000
miles away at the seat of the ICTY in The Hague. There are good reasons to
believe that if a tribunal had not been created a year earlier to address the
European atrocities, none would have been created to deal with Africa's.

A key difference between the tribunals was their political context.
Whereas the Yugoslav Tribunal had ongoing jurisdiction over events in the
former Yugoslavia, its Rwandan counterpart was limited to events that took
place in 1994. The establishment of the ICTY was justified as a necessary step
towards prosecuting those responsible for atrocities in the former Yugoslavia;
given the military and political climate, it is unlikely that many such
prosecutions would have taken place in Yugoslavia itself. The Rwandan
Tribunal, by contrast, was established to try the perpetrators of the Tutsi
genocide in Rwanda during 1994; the target population of these atrocities later
held power in Rwanda and the country commenced its own trials. Indeed,
Rwanda held a rotating seat on the Security Council and voted against the

18 See, e.g., James Crawford, Current Development: The ILC adopts a Statute for an
International Criminal Court, 89 AM. J. INT'L L. 404 (1995).
39 Anderson, supra note 33, at 294.
4 0

RICHARD HOLBROOKE, To END A WAR, 189-9o (1998).



International Criminal Law With Asian Characteristics? 139

creation of the ICTR because of the decision to situate it in neighboring
Tanzania.

D. International Criminal Court

The modest successes of the ICTY raised the comfort level of many states
and encouraged activists to seek to establish a permanent court. Yet the
political questions surrounding possible prosecutions remained. In the
negotiations for the Rome Statute, one crucial question concerned the Court's
relationship to the Security Council. The International Law Commission's 1994
draft had prohibited the commencement of a prosecution if it arose from a
situation that was being dealt with by the Council under Chapter VII of the
Charter, unless the Council decided otherwise.4" This gave each of the
permanent five members of the Council an effective veto over prosecutions.
The Statute as adopted reflects the "Singapore compromise" whereby the
Council's negative veto was replaced by a positive arrangement, providing that
the Council may defer investigation or prosecution for a period of twelve
months by adopting a Chapter VII resolution.4

This is not the place for an assessment of the ICC, but it is telling that
some of the main criticisms of the Court's work to date are that it is unduly
focused on African crimes.43 Underlying this challenge is the perception that it
reflects a European and colonial approach to Africa. In the meantime, the
United States is gradually moving from seeking cast iron guarantees that no
U.S. citizen would ever appear before the Court-with the prospect of a
military strike on The Hague if one did-to reluctant acceptance that the ICC
might in fact be useful in situations where more than sanctions are required
but the use of force is politically or militarily impractical. 4 Meanwhile, Asian
states have been largely absent from the discussions entirely and, as will
described later, Asia has by far the lowest proportion of states that accept the
ICC's jurisdiction at all.45

4' Report of the International Law Commission on the Work of Its Forty-Sixth Session,
Draft Statute for an International Criminal Court, UN Doc. A/49/1o (1994).

"See Lionel Yee, The International Criminal Court and the Security Council: Articles
i3 (b) and 16, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE

(Roy S.K. Lee ed., 1999).

41 See, e.g., Kurt Mills, "Bashir is Dividing Us" Africa and the International Criminal
Court, 34(2) HUM. RTs. Q. 404 (2012).

" Cf Stuart Ford, How Leadership in International Criminal Law Is Shifting From the
United States to Europe and Asia: An Analysis of Spending on and Contributions to
International Criminal Courts, 55 ST. LOUIS U. L.J. 953 (2o11).

4 See infra text accompanying note 51.



Columbia Journal of Asian Law, Vol. 27, No. 1 (2o13)

II. THE ASIAN EXPERIENCE

The foregoing examination of Europe and international criminal law is
telling because - but for the passing mention of the Tokyo Trial and Rwanda,
which were sideshows to the main events in Nuremberg and Yugoslavia -

many observers would regard that European tale as a fairly complete history of
international criminal law. 6 This Part surveys an alternative history of
international criminal law as experienced in Asia. Unlike the European story,
which is sometimes presented as a Whiggish narrative leading inevitably to
the Rome Statute and the ICC,47 the Asian experience is more problematic -

and, arguably, more interesting.
There is not time or space to do justice to the experience of regions other

than Asia. In the strict area of international criminal law as defined for the
purposes of this article, 48 however, that experience is limited. Africa, in
addition to the ICTR, had the Special Court for Sierra Leone which might
properly be regarded as a hybrid tribunal. The Lockerbie Trial of 2000, by
contrast, involved a special court in the Netherlands applying Scots law on a
U.S. airbase, so although the accused were two Libyan nationals it is not
properly categorized as either "African" or truly international. Both Latin
America and Africa have, of course, contributed greatly to our experience and
understanding of transitional justice - most prominently in South Africa's
Truth and Reconciliation Commission. But, again, that is a distinct topic from
international criminal law sensu stricto.4 9

Even with regard to Asia, this article does not purport to be
comprehensive and will only cover the post-war era. Yet two historical
bookends are worth keeping in mind. The first is that one of the earliest
examples of an attempt to formalize restrictions on the conduct of hostilities
was the sixth century BC work of the Chinese general and philosopher Sun Tzu
(Jv). 5 °The second bookend is that, today, Asia has by far the lowest
proportion of states accepting jurisdiction of the ICC of any region. Less than a
third of Asian states have ratified the Rome Statute, compared with almost
two-thirds in Africa and more than three-quarters of other regional
groupings'

46 In light of the role of the United States in prosecuting World War II atrocities, it

might be argued that the term "Western" should be preferred to "European."'Given the
extent to which the practice of international criminal law has been focused on
European geography and history, however, as well as the ongoing ambivalence of the
United States towards international criminal law as it might apply to its own citizens,
the term "European" will be used.

47 See, e.g., BENJAMIN N. SCHIFF, BUILDING THE INTERNATIONAL CRIMINAL COURT (2008).

48 See supra text accompanying notes 4-7.

49 
See, e.g., TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER

REGIMES (Neil J. Kritz ed., 1995).

50SUN-TzU, supra note 9.
51See the summary in Table 1, infra, and the full data in Appendix I.



International Criminal Law With Asian Characteristics? 141

So one interesting question is why Asia, which arguably has the longest
history of restraining the conduct of hostilities, is also the most reluctant to
embrace the court that upholds such norms. The short answer is that such
reticence is not limited to international criminal law. Asian countries also have
by far the lowest rate of acceptance of the compulsory jurisdiction of the
International Court of Justice (ICJ); they are least likely to have signed
conventions such as the International Covenant on Civil and Political Rights
(ICCPR) or the International Covenant on Economic, Social and Cultural
Rights (ICESCR) - or to have joined the World Trade Organization (WTO).
Asia also lacks a regional framework comparable to the African Union, the
Organization of American States, or the European Union; in the United
Nations, the "Asia-Pacific Group" of fifty-three states rarely adopts common
positions on issues and discusses only candidacies for international posts."
Those sub-regional groupings that do exist within Asia, such as the
Association of Southeast Asian Nations (ASEAN), have tended to coalesce
around shared national interests rather than shared identity. 3

Table i Percentage of UN regional groups that have accepted certain
international obli gations. Raw data is provided in Appendix [.

UN Regional ICC ICJ WTO ICCPR ICESCR
Grouping (States (States that (Member (States Parties (States Parties

Parties to have States of the to the to the
the Rome accepted World Trade International International
Statute of compulsory Organization) Covenant on Covenant on
the ICC) jurisdiction Civil and Economic,

of the ICJ) Political Rights) Social and
Cultural Rights)

Asia-Pacific 32% 15% 68% 66% 66%
Africa 63% 41% 78% 94% 89%Eastern
Easter 78% 30% 83% iOO% 1oo%

Latin America
& Caribbean 82% 39% 970/0 88% 85%
States
Western
Europe and 86% 69% 90% iOO% 93%
Others

In part this is due to the diversity of the continent. Indeed, the very
concept of "Asia" derives from a term used in Ancient Greece rather than any
indigenous political or historic roots. Today, regional cohesion is complicated
by the need to accommodate the great power interests of China, India, and

5 in 2011, the group was renamed the "Asia-Pacific Group."

53See Kishore Mahbubani and Simon Chesterman, Asia's Role in Global Governance
(World Economic Forum, Singapore, January 2oo), available at
http://ssrn.com/abstract=1541364.



142 Columbia Journal of Asian Law, Vol. 27, No. 1 (2013)

Japan.5 4 But the limited nature of regional bodies is consistent with a general
wariness of delegating sovereignty to international organizations.55

It would be too much to suggest that Asia's experience with international
criminal law defined attitudes towards international institutions more
generally. Nevertheless, the extent to which that experience contributed to
wariness or suspicion about international law is at. least worth exploring.

A. Prosecutions After the Second World War

The most important and most problematic such experience concerns the
various prosecutions after the Second World War. Allied military courts
conducted 2,200 trials in Asia that sentenced around 3,000 Japanese to
imprisonment and some 920 to death. 56 These tribunals had different legal and
institutional bases. The International Military Tribunal for the Far East was
established by special proclamation of the Supreme Commander Allied Powers
(SCAP), General Douglas MacArthur.57 In addition, however, the United States
established military commissions based on the Articles of War adopted by
Congress;, 8 Australia and Canada adopted domestic legislation authorizing the
creation of military courts;59 Dutch colonial authorities enacted special decrees
that authorized the establishment of temporary court-martials and war crime
courts;6 ° and China adopted legislation giving its courts a broad legal basis
that included, in order of precedence, "international law, special war crimes
rules, and provisions of Chinese common penal law."6'

'See, e.g., David Arase, Non-Traditional Security in China-ASEAN Cooperation: The
Institutionalization of Regional Security Cooperation and the Evolution of East Asian
Regionalism, 50(4) ASIAN SURVEY 8o8 (2010).

55 For a discussion of the changing attitudes towards the expanding role and power of
ASEAN, see Simon Chesterman, From Community to Compliance? The Evolution of
Monitoring Obligations in ASEAN (Cambridge University Press, forthcoming).

56 PHILIP R. PICCIGALLO, THE JAPANESE ON TRIAL: ALLIED WAR CRIMES OPERATIONS IN THE

EAST, 1945-1951 xi (1979).

57 NEIL BOLSTER & ROBERT CRYER, THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: A
REAPPRAISAL 25 (2oo8).

58 Ex parte Quirin, 317 U.S. 1 (1942). See also Louis Fisher, Military Tribunals: Historical

Patterns and Lessons (Congressional Research Service, Washington, DC, RL32 4 58, 9
July 2004), available at http://www.fas.org/irp/crs/RL32458.pdf; Robinson 0. Everett,
The Role of Military Tribunals Under the Law of War, 24 B.U. INT'L L.J. I (2006).

19 War Crimes Act (Commonwealth of Australia, 1945); Respecting War Crimes
(Canada, 1946).

6o PICCIGALLO, supra note 56, at 175.

6 Id. at 159.



International Criminal Law With Asian Characteristics?

1. International Military Tribunal for the Far East

The Tokyo Trial was, of course, the most prominent of these proceedings
but suffered in comparisons to Nuremberg. One can get a sense of the contrast
from how Time magazine described the scene in 1946:

The International Military Tribunal in Tokyo looked last week
like a third-string road company of the Nurnberg show...
Much care had gone into fitting the courtroom with dark,
walnut-toned paneling, imposing daises, convenient perches
for the press and motion picture cameramen. The klieg lights
suggested a Hollywood premiere.
Nurnberg's impresarios had used simpler furnishings, relied
on the majesty of the concept to set the tone. The German
production had a touch of Wagner - elaborate vaunting of
guilt, protestations of heroic innocence. Tokyo's had the
flavor of Gilbert & Sullivan.62

History has not always been kind to the Tokyo Trial - that is, when it was
included in that history at all. Whereas the complete Nuremberg judgment
was published in 1947 in both English and French, the full judgment of the
Tribunal for the Far East remained available only in mimeograph form until
1977. Much of what has been written since the Tokyo Trial is highly critical of
the "victor's justice" that was seen to characterize the proceedings - with
suggestions that the Trial was a means of extracting revenge for the
"treacherous" bombing of Pearl Harbor, or expiating guilt for the use of atomic
weapons in Japan.63 If Nuremberg provided the moral and legal foundations
for the modern prosecution of war crimes, Tokyo remained for many a
shadowy reminder of its limitations.

In addition to the familiar criticisms of victor's justice, the procedural
flaws in Tokyo were also the subject of scathing criticism by Justice Pal and
Justice Roling - including inequality of arms, lack of time, inadequate
translation services, and limitations on defense witnesses among others. 64 But
more relevant for our purposes, perhaps, was the extent to which colonialism
and race played a role in Tokyo - in a way that they did not in Nuremberg.
Though three Asian judges were appointed (from China, India, and the

6, War Crimes, TIME, 2o May 1946, 24.

63See, e.g., PAUL W. SCHROEDER, THE Axis ALLIANCE AND JAPANESE-AMERICAN RELATIONS,

1941 228 (1958); RICHARD H. MINEAR, VICTORS' JUSTICE: THE TOKYO WAR CRIMES TRIAL

(1971); THE TOKYO WAR CRIMES TRIAL: AN INTERNATIONAL SYMPOSIUM (C. Hosoya et al.
eds., 1986); B.V.A. ROLING & ANTONIO CASSESE, THE TOKYO TRIAL AND BEYOND:

REFLECTIONS OF A PEACEMONGER 81 (1993).

64 ROLING & CASSESE, supra note 63, at 5o-6o; Sarah Finnin and Timothy L.H.

McCormack, Tokyo's Continuing Relevance, in BEYOND VICTOR'S JUSTICE? THE TOKYO
WAR CRIMES TRIAL REvISITED 353, 354 (Yuki Tanaka, Timothy L.H. McCormack & Gerry J.
Simpson eds., 2011).



144 Columbia journal ofAsian Law, Vol. 27, No. 1 (2013)

Philippines) the majority of the Tribunal came from the United States and its
Western allies. No legal representative was drawn from Malaysia, Singapore,
Indonesia, Indochina, or Korea. Given the national independence movements
then underway in various colonies of Britain, France, the Netherlands, and the
United States, it was not surprising that Japanese responsibility towards Asia
was framed in a manner that emphasized atrocities rather than colonialism. 6'

Race also featured directly and indirectly. The Allied Powers claimed the
right to speak for "civilization" in the Tokyo Trial. Though few would question
that the crimes on trial would have been condemned by any civilization, the
clear understanding was that "civilization" in this context meant modern
European civilization. 66 Writing soon after the trials, two American authors
criticized Soviet efforts to use them for political purposes, stating - without
irony - that this was "incompatible with the Christian-Judaic absolutes of
good and evil which were the foundation of the Tokyo and Nuernberg [sic]
trials."6 ' Other scholars have discussed the role of race in specific trials,
notably that of General Yamashita. 68

The political context of the Tokyo Trial also differed from Nuremberg. The
decision to protect Emperor Hirohito and keep him on the throne, for
example, was intended to facilitate the occupation of Japan. To this end, he
was presented as having been manipulated by Japan's military leaders; indeed,
General MacArthur cultivated his image as a "peace monarch," who voluntarily
led his country in the formulation of its new constitution that renounced
military force. Though the short term aim of encouraging cooperation with the
occupying powers was achieved, the longer-term consequence was to absolve
the Japanese people more generally of the need to reflect on the colonization
and oppressive rule of Taiwan and Korea, and the atrocities perpetrated there,
in China, and in other Asian states.69 The consequences of this decision
continue today, with periodic calls from China and other states for Japan to
apologize repeatedly for its war-time activities, while nationalist sentiments
within Japan manifest in the ritual of visiting the Yasukuni shrine to Japan's
war dead, including fourteen Class A war criminals.70

As Barak Kushner and others have argued, it is not difficult to see how this
foundation might lead to international criminal law being seen as a tool for
selective engagement with domestic political processes - pursuing some

65 Tanaka, McCormack & Simpson eds., supra note 64, at xxviii.

66 ONUMA YASUAKI, Beyond Victor's Justice, XI JAPAN ECHO 63 (1984).

67 JOSEPH B. KEENAN & BRENDAN F. BROWN, CRIMES AGAINST INTERNATIONAL LAW vii (1950).

68 See, e.g., Anne-Marie Prevost, Race and War Crimes: The 1945 War Crimes Trial of
General Tomoyuki Yamashita, 14 HuM. RTs. Q. 303 (1992).

69 Tanaka, McCormack & Simpson eds., supra note 64, at xxix; OTOMO YORKIO, The
Decision Not to Prosecute the Emperor, in Tanaka, McCormack & Simpson eds., supra
note 64.

70 FUTAMARA MADOKA, Japanese Societal Attitude Towards the Tokyo Trial: From a

Contemporary Perspective, in Tanaka, McCormack & Simpson eds., supra note 64, 35.



International Criminal Law With Asian Characteristics?

ends, such as the stabilization of post-conflict Japan, while effacing others,
such as the ongoing liberation struggles in much of the region.7'

2. Other Prosecutions by Western Allies

In addition to the Tokyo Trial, the Allies carried out other trials that
typically attract even less attention than the International Military Tribunal for
the Far East (IMTFE). The United States, for example, also staged important
trials in the Philippines, notably the Yamashita case, as well as in China, the
Pacific Islands and Yokohama.7" After the Philippines achieved independence
on 4 July 1946, it continued its own prosecutions, though these were
complicated by the political transition underway. Some trials were delayed,
but the focus also shifted, as it did elsewhere, from the guilt of the Japanese to
the responsibility of collaborators, some of whom remained politically active
in independent Philippines.'

Britain carried out trials in what were then its colonial territories. Twelve
military courts were created in Rangoon, Hong Kong, Malaya, British North
Borneo, and Singapore. Singapore also served as the venue for cases that could
not be held elsewhere. 74 In total the British Eastern war crimes trials
comprised 3o6 cases involving 920 accused; of these 279 were sentenced to
death and a further 532 to prison terms."s This deeply under-studied
phenomenon has only begun to receive the attention it warrants in Cheah Wui
Ling's ongoing work on the subject.76

In the six years after the conclusion of hostilities, Australia carried out 300
trials of 813 enemy nationals. Of those tried, 137 were executed. Trials took
place in Darwin, Singapore, Hong Kong, Malaysia (Labuan), Papua New
Guinea (Wewak, Rabaul, and Manus Island), and Indonesia (Morotai).' As
with other tribunals, these included mass trials, but an Australian tribunal had
the dubious distinction of being by far the largest, such as a trial begun in

7' See Barak Kushner, Ghosts of the Japanese Imperial Army: The "White Group"
(Baituan) and Early Post-war Sino-Japanese Relations, 218, (suppl 8) PAST AND PRESENT
117, 119 (2013).

71 PICCIGALLO, supra note 56, at 68; ALLAN A. RYAN, YAMASHITA'S GHOST: WAR CRIMES,

MACARTHUR'S JUSTICE, AND COMMAND ACCOUNTABILITY (2012).

73 PICCIGALLO, supra note 56, at 185-200.

71 Id. at 103.

71 Id. at 120.

76 See, e.g., CHEAH Wui Ling, Post-World War II British "Hell-ship" Trials in Singapore:

Omissions and the Attribution of Responsibility, 8 J. INT'L CRIM. JUST. 1035 (2010).

' Narrelle Morris, Unexpected Defeat: The Unsuccessful War Crimes Prosecution of Lt
Gen Yamawaki Masataka and Others at Manus Island, 1950, 11 J. INT'L CRIM. JUST. 591
(2013).



146 Columbia Journal ofAsian Law, Vol. 27, No. 1 (2013)

Ambon and concluded in Morotai of ninety-one Japanese officers charged
collectively with mistreatment of Australian and Dutch prisoners of war. 8

Canada had also prepared to conduct war crimes trials, but ran into
difficulties as the relevant regulations required that only senior officers in
command of Canadian forces could convene Canadian military courts. As
Canada did not have occupation forces in the region, it could only commence
prosecutions with British and American cooperation. It was involved in
prosecutions in Hong Kong and Tokyo.7 9 New Zealand also participated in war
crimes trials, but this appears to have been limited largely to the role of a
"passive observer."80

The Dutch also had interests in the region, and indeed the Netherlands
tried more Japanese accused than any other nation bar the United States. The
legal basis for this was regulations applicable only to the Netherlands East
Indies (that is, distinct from municipal law). In all there were 448 cases
involving 1,038 accused, of which 236 were sentenced to death and 733 to
prison."

Another colonial power that held a far smaller number of trials was
France. The reason for the small number of trials was partly the situation of
post-war France, but also the quickly changing political landscape in
Indochina - what is today Vietnam, Cambodia, and Laos. There were thirty-
nine trials of 23o accused, with sixty-three death sentences and 135 prison
terms.B2

3. Russia

Russia's role in post-war trials was, for a long time, viewed in the West
either through the prism of the Cold War - or it was not viewed at all, due to
the unavailability of materials.8 3 Politics appears to have played an important
role in shaping Russian approaches to the trials, in particular unhappiness
with U.S. policies in the occupation of Japan.

In addition to criticism of the Tokyo Trial, however, Russia also convened
an important trial in Khabarovsk, where twelve Japanese were charged with
"manufacturing and employing bacteriological weapons"8 4 

- the only case in

78 Georgina Fitzpatrick, War Crimes Trials, "Victor's Justice" and Australian Military

Justice in the Aftermath of the Second World War, in THE HIDDEN HISTORIES OF WAR

CRIMES TRIALS 327, 336 (Kevin Jon Heller and Gerry Simpson eds., 2013).

79 PICCIGALLO, supra note 56, at 140-41; See now HONG KONG'S WAR CRIMES TRIALS

(Suzannah Linton ed., 2013).

80 PICCIGALLO, supra note 56, at 141-42.

8 Id. at 174-84.

8 Id. at 2O-O8.

83 See, e.g., id. at 145.

84 Id. at 150.



International Criminal Law With Asian Characteristics?

which Japan's wartime biological program was the subject of criminal
proceedings. 8

' All twelve were convicted, but despite the seriousness of the
charges, none was sentenced to death.86

Another area in which Russia had played a significant role was the role of
the criminologist Aron Naumovich Trainin. As Kirsten Sellars has observed,
his scholarship on crimes against peace and complicity had a significant
impact on the formulation adopted in both Nuremberg and Tokyo. 87

4. China

China had more victims of Japanese war crimes than any other nation and,
from an early stage, expressed a determination to participate actively in the
post-war prosecutions. China joined in the establishment of the UN War
Crimes Commission and in 1944 established a Far Eastern Sub-Commission,
based in Chongqing. Though much of the attention in China focused on the
trials of local "puppets" - Chinese who had collaborated with Japan - tens of
thousands of alleged crimes were documented. In part constrained by the
internal convulsions going on at the time, the number of trials in the end was
605, with 883 accused of which 149 were sentenced to death and a further 355
to prison.

8 8

More than a thousand self-confessed Japanese war criminals remained in
custody, but their fate was in limbo after Mao Zedong's forces drove out the
Nationalists and declared the creation of the People's Republic of China in
1949. Parallel tribunals were eventually established in Shenyang and Taiyuan
in June and July 1956. Yet the outcome initially appears astonishing: of 1,o62

detainees, 1,017 were released without trial. Of the forty-five that actually faced
trial, all were convicted but sentences ranged from eight to twenty years, with
the eleven years since the end of the war retroactively applied. The
extraordinary leniency is explicable only by Mao and Zhou Enlai's belief that
geostrategic considerations demanded that China cultivate economic and
political ties to Japan - even as it ran counter to domestic anti-Japanese
sentiment.8 9

85 For a discussion of the failure to prosecute this at the Tokyo Trial, see Gerry Simpson,

Revisiting the Tokyo War Crimes Trial, 78(4) PACIFIC HISTORICAL REV. 6o8, 613 (2009).

86 PICCIGALLO, supra note 56, at 154.

87 KIRSTEN SELLARS, "CRIMESAGAINST PEACE" AND INTERNATIONAL LAW 48-58 (2013).

88 PICCIGALLO, supra note 56, at 158-73.

89 Justin Jacobs, Preparing the People for Mass Clemency: The 1956 Japanese War Crimes
Trials in Shenyang and Taiyuan, 205 CHINA QUARTERLY 152 (March 2011).



•148 Columbia journal of Asian Law, Vol. 27, No. 1 (2013)

S. The Legacy of the Post-War Trials

The political legacy of the post-war trials in Asia is, therefore, richer than
often believed but also deeply problematic.

Of particular interest to lawyers today is, among other things, the findings
on command responsibility. A key reason for the distinctive approach at the
IMTFE was factual. In Nuremberg the Nazi leadership had, conveniently, left
significant amounts of evidence documenting orders to carry out acts that
were international crimes. In Tokyo this was not generally the case. As a
result, charges related to war crimes could not be based solely on explicit
orders.90 Count 54, for example, charged that the various defendants had
"ordered, authorized and permitted" war crimes, but Count 55 used a more
circuitous logic to allege that the defendants, being by virtue of their
respective offices responsible for securing the observance of the said
Conventions and assurances and the Laws and Customs of War in respect of
the armed forces :.. deliberately and recklessly disregarded their legal duty to
take adequate steps to secure the observance and prevent breaches thereof,
and thereby violated the laws of war.9'

Other areas of interest include the interpretation of aggression, 92

conspiracy and joint criminal enterprise, 93 and the defense of superior
orders.94 As with command responsibility, some distinctions were driven by
factual differences from Nuremberg, but the colonial and racial undercurrents
also played a role.

This article will not attempt to examine in depth all of these doctrinal
questions. An interesting underlying theme to consider, however, is the extent
to which these legal divergences can be attributed to one or more of three
possible causes. Was it simply a different fact pattern that emerged in Asia,
forcing a reconsideration of the law in light of these new circumstances? Or
did international law adapt to "local" norms and expectations, for example
concerning attitudes to individual versus group responsibility? Or, more
cynically, was law driven by political exigency - the need to ensure a swift
and sure conclusion to the legal proceedings at the end of a bloody conflict?

In terms of the legacy of the post-war trials, one thing does seem clear:
questions of legal doctrine were less significant in determining attitudes
towards international criminal law than the political context within which the
trials took place, with decolonization and race never far from the surface. That

90 BoLSTER & CRYER, supra note 57, at 227. Cf. Allison Marston Danner & Jenny S.

Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and
the Development of International Criminal Law, 93 CAL. L. REV. 75, 124-25 (2005).

9, IMTFE, Annex 6, Counts 54-55. See generally Gideon Boas, Command Responsibility
for the Failure to Stop Atrocities: The Legacy of the Tokyo Trial, in Tanaka, McCormack
& Simpson eds., supra note 64, 163.

92 BOLSTER & CRYER, supra note 57, at 115-53.

13 Id. at 2o6-27.

94 Id. at 237-38.



International Criminal Law With Asian Characteristics? 149

political framing helps us understand the subsequent checkered history of
trials for international crimes in Asia.

B. Hybrid Tribunals

Wariness about international trials and the question of control over
proceedings in particular became a feature of subsequent experiments in Asia
with international criminal trials. This section considers the group loosely
characterized as "hybrid" tribunals in Timor-Leste, Cambodia, and Lebanon. 95

1. Timor-Leste: Special Panels of the Dili District Court (2000-2006)

In what is now Timor-Leste, the violence that accompanied the vote for
independence in September 1999 led to calls by the International Commission
of Inquiry on East Timor for an international tribunal to conduct prosecutions
arising from atrocities committed after the plebiscite. On the same day, an
Indonesian inquiry also recommended prosecutions of senior Indonesian
military officials, but stated that they should be tried by Indonesia. Indonesian
President Abdurrahman Wahid was reported to have said that he wanted to
pre-empt an international tribunal by conducting a credible investigation and
trial within Indonesia.96 In response, the Secretary-General stated that the
Security Council would "keep an eye on the process," but did not plan to
establish a tribunal.97

Two major problems confronted these efforts to pursue accountability.
The first was the fact that many alleged perpetrators were located within
Indonesia. The second was that Timor-Leste lacked meaningful capacity to
investigate or prosecute such crimes without international assistance.

The latter problem was partially addressed by creating Special Panels
within the Dili District Court to try cases of "serious criminal offences"
committed in 1999. The relevant offences were defined as genocide, war
crimes, crimes against humanity, murder, sexual offences, and torture.98 The
Special Panels comprised one Timorese judge and two international judges,99

9' Lebanon is included based on its membership in the Asia-Pacific Group of nations at
the United Nations.
96 This is, to be fair, the purpose of the complementary jurisdiction of the International

Criminal Court. See generally NIDAL JURDI, THE INTERNATIONAL CRIMINAL COURT AND

NATIONAL COURTS: A CONTENTIOUS RELATIONSHIP (2011).

97See Seth Mydans, Jakarta's Military Chiefs Accused of Crimes, N.Y. TIMES, 1 February
2000;Seth Mydans, Governing Tortuously: Indonesia's President Outflanks the General,
N.Y. TIMES, 15 February 2000.

98 Regulation on the Organization of Courts in East Timor, 6 March 2000,

UNTAET/REG/2000/11, S 10.

99 Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious
Criminal Offences, 6 June 2000, UNTAET/REG/2000/15 .



150 Columbia Journal ofAsian Law, Vol. 27, No. 1 (203)

though the lack of consultation with Timorese counterparts was the subject of
criticism. A Serious Crimes Unit was also established within the Public
Prosecution Service. As in the case of the Special Panels, this was dominated
by international staff - which may have facilitated cooperation with
peacekeepers and other international actors, but undermined local
legitimacy."°

A far greater problem was that the entire process depended on the good
faith and cooperation of Indonesia, which had occupied Timor-Leste for
quarter of a century. On any view, this was an optimistic premise from which
to start.' Subsequent assessments of the Timorese experience point to the
disillusionment of many in the community to the meagre outcomes of the
process, and the ongoing vocal calls for justice for crimes of the past.'°2

2. Extraordinary Chambers in the Courts of Cambodia (2006-)

The Extraordinary Chambers in the Courts of Cambodia, better known as
the Khmer Rouge Tribunal, was the product of far more protracted
negotiations. After requesting assistance in 1997 to investigate and prosecute
crimes committed under Pol Pot between 1975 and 1979, Cambodia later
rejected the prospect of an ad hoc tribunal in the mold of the ICTY. In August
1999, the UN released plans for a joint Cambodian-international tribunal. The
tribunal was to have applied Cambodian law, but with a foreign prosecutor
and a majority of foreign judges. Prime Minister Hun Sen rejected the plan,
insisting on co-prosecutors, one foreign and one Cambodian - effectively
giving Cambodia a veto over prosecutions. This was unacceptable to UN
negotiators; at the same time, China stated that it would veto any Security
Council resolution that imposed a tribunal against Cambodia's wishes.

Agreement was ultimately reached in 2003 in a manner that largely
acceded to Cambodia's wishes. The Tribunal's Web site delicately skirts the
question of whether it is an international or domestic tribunal by saying that it
is hybrid because of "certain special features" - a phrase that is not
elaborated. °3 On the one hand, its jurisdiction covers violations of Cambodian
laws as well as "international humanitarian law and custom, and international

" Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-Leste: In
Retrospect (International Center for Transitional Justice, New York, 2oo6), available at
http://www.ictj.org/sites/default/files/ICTJ-TimorLeste-Criminal-Process-2oo6-
English.pdf.

'o' Id. at 40.
112 See, e.g., CHEAH Wui Ling, Forgiveness and Punishment in Post-Conflict Timor, 1O

UCLA JOURNAL OF INTERNATIONAL AND FOREIGN AFFAIRS 297 (2005); Lia Kent,
Interrogating the Gap Between Law and Justice: East Timor's Serious Crimes Process, 34
HUM. RTS. Q. 1021 (2012).
0 3 See Is the ECCC a Cambodian or an International Court?, EXTRAORDINARY CHAMBERS IN

THE COURTS OF CAMBODIA, http://www.eccc.gov.kh/en/faq/eccc-cambodian-or-
international-court.



International Criminal Law With Asian Characteristics? 151

conventions recognized by Cambodia" in the period 1975-1979. °4 On the other,
Cambodian judges constitute the majority in the pre-trial, trial, and appellate
chambers, 105 though the two co-prosecutors are international and
Cambodian.' °6

The Tribunal has been marred by dysfunction and controversy. Well-
intentioned efforts to allow victim participation quickly became unwieldy as
victims attempted to take part in the trials. 7 Its first case was criticized for the
apparent leniency meted out to one of the few people likely to stand trial.oS
Budgetary problems led to accusations of inefficiency. High-profile
resignations and allegations of political influence continue to tarnish its
reputation and, presumably, its legacy.'0 9 And, as is so often the case with
transitional justice mechanisms, an underlying problem is the need to manage
expectations about what any such institution can achieve in the first place."°

3. Lebanon: The Special Tribunal for Lebanon (2009-)

Though it is at the limit of what one might term "Asia," the Special
Tribunal for Lebanon - also known as the Hariri Tribunal - was established
to prosecute those responsible for the 2005 assassination of the former
Lebanese Prime Minister Rafic Hariri and twenty-two others.

Described as a "tribunal of international character," it was originally
devised at the request of the Lebanese government and modelled on the
Special Court for Sierra Leone. Following disagreements with the Lebanese

104 LAW ON THE ESTABLISHMENT OF THE EXTRAORDINARY CHAMBERS, WITH INCLUSION OF

AMENDMENTS AS PROMULGATED ON 27 OCTOBER 2004 (Extraordinary Chambers in the
Courts of Cambodia, Phnom Penh, NS/RKM/1004/oo6, 27 October 2004), available at
http://www.eccc.gov.kh/sites/default/files/legal-documents/KR-Law-as-amended_
27 Oct 2004Eng.pdf, art 2.

105 Agreement Between the United Nations and the Royal Government of Cambodia

Concerning the Prosecution Under Cambodian Law of Crimes Committed During the
Period of Democratic Kampuchea, art. 3, done at Phnom Penh, 6 June 2003, available at
http://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement-between-
UN-andRGC.pdf.
lo6 Id., art 6.

107 Maria Elander, The Victim's Address: Expressivism and the Victim at the

Extraordinary Chambers in the Courts of Cambodia, 7 INT'L J. TRANSITIONAL JUST. 95
(2013).

,o See, e.g., Michael C. Witsch, Legitimacy on Trial at the Extraordinary Chambers, 26

TEMP. INT'L & COMP. L.J. 143 (2012).

log See, e.g., Hanna Bertelman, International Standards and National Ownership?Judicial

Independence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia,

79 NORDIC J. INT'L LAW 341 (2010).

1o See, e.g., Farrah L. Tek, Justice at the Extraordinary Chambers in the Court of

Cambodia?, 23 PEACE REV.: J. SOc. JUSTICE 431 (2011).



152 Columbia Journal of Asian Law, Vol. 27, No. 1 (2o13)

government, however, the Tribunal's mandate eventually had to be formalized
through a Chapter VII Security Council resolution and its location was moved
to the Netherlands. The "international character" of the Tribunal is the reverse
of the ECCC: located outside the country in question, its trial and appeal
chambers are designed to ensure a majority of international judges."' Its
mandate, however, is to apply essentially Lebanese law"2 in prosecuting those
responsible for the Hariri attack."3 Quite apart from its questionable inclusion
in the category of "Asian," then, there is a real argument as to whether such a
tribunal is an "international" tribunal at all."4

C. Domestic Tribunals

The boundaries of our subject matter become even more blurred when
considering domestic tribunals applying - or purporting to apply -
international criminal law. This section will touch on only a few interesting
cases.

S.C. Res 1757 (2007), Annex (30 May 2007). The Trial Chamber has three judges, one
of whom should be Lebanese and two international; the Appeals Chamber has five
judges, of whom two are Lebanese and three international.
1"2 Statute of the Special Tribunal for Lebanon, S.C. Res 1757 (2007), Attachment, art 2

(30 May 2007): "The following shall be applicable to the prosecution and punishment of
the crimes referred to in article i, subject to the provisions of this Statute: (a) The
provisions of the Lebanese Criminal Code relating to the prosecution and punishment
of acts of terrorism, crimes and offences against life and personal integrity, illicit
associations and failure to report crimes and offences, including the rules regarding the
material elements of a crime, criminal participation and conspiracy; and (b) Articles 6
and 7 of the Lebanese law of ii January 1958 on 'Increasing the penalties for sedition,
civil war and interfaith struggle'."

13 Id., art 1: "The Special Tribunal shall have jurisdiction over persons responsible for
the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister
Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other
attacks that occurred in Lebanon between i October 2004 and 12 December 2005, or
any later date decided by the Parties and with the consent of the Security Council, are
connected in accordance with the principles of criminal justice and are of a nature and
gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over
persons responsible for such attacks. This connection includes but is not limited to a
combination of the following elements: criminal intent (motive), the purpose behind
the attacks, the nature of the victims targeted, the pattern of the attacks (modus
operandi) and the perpetrators."

114 William A. Schabas, The Special Tribunal for Lebanon: Is a "Tribunal of an
International Character" Equivalent to an "International Criminal Court"?, 21 LEIDEN J.

INT'L L. 513 (2008). See also Michelle Burgis-Kasthala, Defining Justice During
Transition? International and Domestic Contestations over the Special Tribunal for
Lebanon, 7 INT'L J. TRANSITIONAL JUST. 497 (2013); Jos6 Alvarez, Tadie Revisited: The
Ayyash Decisions of the Special Tribunal for Lebanon, 11J. INT'L CRIM. JUST. 291 (2013).



International Criminal Law With Asian Characteristics? 153

1. Bangladesh (1973, 2009-)

Bangladesh's International Crimes Tribunal, established in 2009, is

ostensibly an attempt to grapple with the traumatic history of the country's
birth amid genocide in 1971." 5 The legal framework is provided for by a 1973
law that was ground-breaking at the time for its inclusion of crimes against
peace, war crimes, crimes against humanity, and genocide. Analogous,
perhaps, to the decisions of the Chinese government with regard to Japanese
war criminals, "6 however, the desire to prosecute was overcome by the need to
get along with more powerful neighbors. A coup in 1975 that saw the
assassination of the prime minister and his family essentially ended
considerations of prosecuting anyone for a generation." 7 The question was
resurrected in 2007 leading to an amendment to the legislation and the
creation of the Tribunal. The timing and focus of the Tribunal has been
criticized, however, as being both legally uncertain and politically
opportunistic.."

2. Indonesia (2000-)

In parallel with the UN's episodic engagement with international crimes in
Timor-Leste, "' Indonesia established an Ad Hoc Human Rights Court
following the passage of Law 26/2000, with jurisdiction over "gross violations
of human rights," defined as including crimes of genocide and crimes against
humanity.2 From the outset, the Court was criticized for procedural flaws and
inadequate training, as well as possible links between the prosecutors and the
military."' In the end, of eighteen defendants only two were convicted - both
ethnic Timorese. The outcome was severely criticized by Indonesian NGOs,
the United States, the European Union and the UN 22 

- though Timor-Leste
was muted in its criticism. "Almost everything for our daily needs comes from

"5 SIMON CHESTERMAN, JUST WAR OR JUST PEACE? HUMANITARIAN INTERVENTION AND
INTERNATIONAL LAW 71-75 (2001).

i6 See section II.A.4.

17 Suzannah Linton, Completing the Circle: Accountability for the Crimes of the 1971
Bangladesh War of Liberation, z CRIM. L.F. 191, 207 (2010).

n8 See, e.g., Jhuma Sen, The Trial of Errors in Bangladesh: The International Crimes

(Tribunal) Act and the 1971 War Crimes Trial, XIV( 3) HARVARD ASIA QUARTERLY 33, 37
(2012).

"9 See section II.B.i.

2' Law No. 26/20OO Establishing the Ad Hoc Human Rights Court (Indonesia: 2000),

art 7.
121 SUSAN HARRIS RIMMER, GENDER AND TRANSITIONAL JUSTICE: THE WOMEN OF EAST TIMOR

52 (2010).

122 Id. at 67-68.



154 Columbia Journal ofAsian Law, Vol. 27, No. 1 (2013)

Indonesia," then Foreign Minister Jose Ramos-Horta was quoted as saying.
"Therefore, if we have a bad relationship with Indonesia it will affect the living
standard of the people of East Timor. The past is history now ... the future is
more important.'

23

3. Iraq (2005-)

Brief mention should also be made of the Iraqi Special Tribunal, later
rechristened the Supreme Iraqi Criminal Tribunal. Its first incarnation was
established during the occupation of Iraq, under the auspices of the Coalition
Provisional Authority. The Tribunal's jurisdiction ran from the 1968 coup that
brought Saddam Hussein to power until the date his regime fell in 2003. The
crimes included genocide, crimes against humanity, war crimes, and certain
violations of Iraqi law - in particular manipulation of the judiciary,
squandering national resources, and the threat or use of armed force against
an Arab country."

Most famously or notoriously, the Tribunal convicted Saddam Hussein
and sentenced him to death. The Tribunal has been criticized for retaining the
death penalty, but also for the lack of international judges and its questionable
independence from U.S. and later Iraqi political interference.125

4. Sri Lanka?

A final example, moving forward, may yet be Sri Lanka. At present, there
seems little prospect of any meaningful transitional justice mechanism, let
along an internationalized one. The Lessons Learnt and Reconciliation
Commission appointed by President Rajapaksa concluded its work in 2011 with
a report that was deeply critical of the activities of the Tamil Tigers but found
no wrongdoing on the part of the Sri Lankan military. (In fact the Commission
did depart slightly from the government line that there had been zero civilian
casualties killed by government forces, by at least acknowledging that some
had been killed - accidentally - in crossfire.,26)

At an oral briefing of the Human Rights Council in September 2013,
however, the Deputy High Commissioner for Human Rights stated that

'2 "East Timor's foreign minister opposes rights tribunal," AP, 8 September 2004.

' Coalition Provisional Authority, Statute of the Iraqi Special Tribunal (2003), arts ii-
14.

"' See Ilias Bantekas, The Iraqi Special Tribunal for Crimes Against Humanity, 54 INT'L &
CoMp. L.Q. 237 (2005).

,26 Report of the Commission of Inquiry on Lessons Learnt and Reconciliation

(November 2011), at http://www.priu.gov.lk/news-update/CurrentAffairs/ca2olln2/
FINAL%2oLLRC%2oREPORT.pdf.



International Criminal Law With Asian Characteristics? 155

Regrettably, the High Commissioner detected no new or comprehensive
effort to independently or credibly investigate the allegations which have been
of concern to the Human Rights Council. She encourages the Government to
use the time between now and March 2014 to engage in a credible national
process with tangible results, including the successful prosecution of
individual perpetrators, in the absence of which she believes the international
community will have a duty to establish its own inquiry mechanisms.'2 7

The intimation of a deadline was immediately rejected by Sri Lanka, but
sets up an interesting dynamic as there is more international scrutiny of Sri
Lanka's actions - or inactions.

III. ASIAN CHARACTERISTICS?

The title of this article recalls the current official ideology of the Chinese
Communist Party: socialism with Chinese characteristics (+P [ 4 ±-M.).
Though sometimes regarded as mere labelling in a country that has clearly
embraced market forces and encourages entrepreneurialism, socialism "with
Chinese characteristics" actually highlights a key tension between the
competing sources of legitimacy in China today: ideological purity that
justifies one-party rule and economic pragmatism that has led to growth and
prosperity."'

There is a similar tension at the heart of international criminal law. Its
legitimacy derives from its universal nature, but the vast majority of the laws
were written in Europe, the most important trials took place in Europe, and
the academic writing is published (for the most part) in Europe. These
influences were apparent in the Tokyo Trial and feature in the more critical
accounts that were written subsequently. To the extent that histories of
international criminal law as it has been practiced in Asia efface colonialism
and racism, they are incomplete. It is the modest hope of this article to
contribute to a better understanding of that history.'29

But projects like this also highlight that Asian actors were not merely
pawns in a colonial game. Even a brief account such as the one offered here
shows that those actors were agents in their own right. In the post-war era, for
example, various Asian states adopted a pragmatic approach to the role that
international criminal law could play; focused, one could say, on "output"

"27Address by Ms. Flavia Pansieri United Nations Deputy High Commissioner for

Human Rights at the 24 th session of the Human Rights Council (Office of the High
Commissioner for Human Rights, Geneva, 25 September 2013), at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsD=1 3820&Langl
D=E.
128 See generally HUANG YASHENG, CAPITALISM WITH CHINESE CHARACTERISTICS:

ENTREPRENEURSHIP AND THE STATE (2008); Jane Golley, Chinas Evolving Economic System:
What's in a Name?, 70 THE CHINA JOURNAL 188 (2013).

'29 The proceedings of the conference at which this article was first presented will be

published in due course as a book edited by Kirsten Sellars.



156 Columbia Journal of Asian Law, Vol. 27, No. 1 (2013)

legitimacy rather than input legitimacy. Such pragmatic adaptation of
international norms to local political needs can be seen in the Chinese and
Philippines approach to post-conflict trials in particular. China's initial
hesitation to resolve the plight of Japanese prisoners is an example of an
approach to atrocities that is often overlooked: rather than a choice between
prosecutions and impunity, it is also possible to delay action. The subsequent
decision to release the majority of those being held would appear to have been
driven more by considerations of realpolitik than of justice, but also had to
balance the need for regional stability against domestic sentiment.' 0

This context, the tension between legitimacy and effectiveness, provides a
useful lens through which to view the more recent experience of hybrid
tribunals. Popular among donor governments because they are far cheaper
than the international criminal tribunals established for the former Yugoslavia
and Rwanda, they blur the line between the assertions that (i) a crime is so
terrible that it transcends any one jurisdiction and (ii) primary responsibility
to protect a population from genocide, war crimes, and crimes humanity lies
with the state itself. Timor-Leste and Cambodia offer case studies of situations
in which international aspirations and local needs diverged. In Timor-Leste, a
lack of consultation meant that aspects of the criminal justice regime
implemented were largely irrelevant to domestic concerns; in Cambodia, it
may be argued that the ECCC has been made subservient to domestic political
interests. The problems are still greater in domestic trials purporting to try
international crimes, as seen in Bangladesh and Indonesia - and doubtless as
will be seen in Sri Lanka.

From a European (or Western) perspective, it could be argued that many
or all of these trials suffer from legitimacy deficits, because political
calculations were made that ultimately trumped considerations of justice.
Indeed, many of the trials have been criticized, in particular by Western
governments and non-governmental organizations. Bangladesh's International
Crimes Tribunal, for example, was initially supported by Human Rights Watch
but was the subject of several campaigns through 2013 questioning the use of
the death penalty, the failure to protect witnesses, and its independence from
the political agenda of the government.'3 ' The same Tribunal has also been
criticized by the U.S. State Department,'3 the European Union,'3 and the UN
Special Rapporteur on extrajudicial, summary, or arbitrary executions.'3

,30 This was also true of the Chinese Nationalists. See Barak Kushner's description of the

1949 trial of Okamura Yasuji, which included the production of a note from the acting
President of Nationalist China to the effect that "Prisoner Okamura Yasuji is of use,
please find him not guilty": Kushner, supra note 71, at 122.

,31 See Bangladesh: Post-Trial Amendments Taint War Crimes Process (Human Rights

Watch, New York, 14 February 2013), at http://www.hrw.org; Bangladesh: Halt
Execution of War Crimes Accused (Human Rights Watch, New York, 8 December
2013), at http://www.hrw.org; Bangladesh: Investigate Killing of Witness (Human
Rights Watch, New York, 23 December 2013), at http://www.hrw.org.
'3' Country Reports on Human Rights Practices for 2012: Bangladesh (U.S. State

Department, Washington, DC, 2012), at http://www.state.gov/j/drl/rls/
hrrpt/humanrightsreport/index.htm?year=2o12&dlid=2o 4 39 5.



International Criminal Law With Asian Characteristics?

Concerns about losing control of criminal prosecutions or giving up
sovereign control to outside powers are not, of course, unique to Asia. To be
clear, it is not being suggested that there is a single set of "Asian
characteristics" that explains the history of international criminal law as it has
taken place in the region. Nevertheless, that history - in particular the Tokyo
Trial and the other post-war trials across the region - explicitly framed
international criminal law as a political rather than strictly legal phenomenon.
Unlike Nuremberg, which became the founding myth of modern international
criminal law, Tokyo's embarrassing exception remained a marginal case to be
framed according to the needs of the framer. This at least partly explains the
manner in which more recent hybrid- and domestic tribunal have sought to
bend law to domestic political needs. It may also offer a partial explanation of
ongoing wariness in the region about institutions that have the potential to be
truly universal, such as the ICC. That wariness is not simply driven by fears
that the institution will be dominated by European or American interests; it is
also driven by fears that the institution may not be adaptable to local political
concerns.

CONCLUSION

The history of international criminal law remains, of course, unfinished.
This article has sought to foreground Asian experiences of the subject with a
view to better illuminating the inherent tensions between legitimacy and
effectiveness that have challenged many tribunals that sought to offer justice
at a time when the traditional institutions of the state that would fulfil such a
function either did not exist or could not be trusted. In so doing, it has also
sought to illustrate the way in which Asia's past experiences can help to
understand - though not necessarily to justify - current practices in the area
of international criminal law.

And so we end where we began, with the unfair burdens routinely placed
on such trials. They are set the impossible task of determining the guilt or
innocence of the individual defendant, recording an official history of the most
traumatic events imaginable, and also marking a return to normality, to order,
to law. They must also ensure that states and other stakeholders see them as
legitimate, both in the sense that their origins are pure and their outcomes are
sound. No trials can achieve such lofty goals. And yet somehow they must.

133 European Parliament resolution on the situation in Bangladesh (2o13 /2 5 61(RSP))
(European Parliament, Brussels, 13 March 2013), at http://www.europarl.europa.
eu/sides/getDoc.do?pubRef=-%2F%2FEP%2F%2FNONSGM L%2BMOTIONZBP 7-RC-
2013-0133%2Bo%2BDOC%2BPDF%2BVO%2F%2FEN.

134 Report of the Special Rapporteur on Extrajudicial, Ssummary, or Arbitrary
Executions, Christof Heyns; Addendum: Observations on Communications
Transmitted to Governments and Replies Received, UN Doc. A/HRC/2 3/ 47 /Add. 5 , 31
(2013), at http://documents.un.org.



158 Columbia Journal of Asian Law, Vol. 27, No. 1 (2013)

APPENDIX I: SELECTED INTERNATIONAL AGREEMENTS BY UN REGIONAL
GROUPING

135

Table 2 Acceptance of certain international obligations by UN regional
groups. Note that Kiribati is not a member of any regional group. See

note 136.
State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

Justice) Rights)

Asia-Pacific

Afghanistan Asia-Pac

Bahrain Asia-Pac

Bangladesh Asia-Pac

Bhutan Asia-Pac

Brunei Asia-Pac
Darussalam
Cambodia Asia-Pac

China Asia-Pac

Cyprus Asia-Pac

Fiji Asia-Pac

India Asia-Pac

Indonesia Asia-Pac

Iran Asia-Pac

Iraq Asia-Pac

Japan Asia-Pac

Jordan Asia-Pac

Kazakhstan Asia-Pac

Korea, Asia-Pac
Democratic
People's
Republic of
Korea, Asia-Pac
Republic of
(South)
Kuwait Asia-Pac

Kyrgyzstan Asia-Pac

Laos Asia-Pac

Lebanon Asia-Pac

Malaysia Asia-Pac

135 The five UN regional groups are Asia-Pacific, Africa, Eastern Europe, Latin America

& Caribbean States, and Western Europe & Others.



International Criminal Law With Asian Characteristics? 159

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

justice) I Rights)
Maldives Asia-Pac

Marshall Asia-Pac
Islands
Micronesia, Asia-Pac
Federated
States of
Mongolia Asia-Pac

Myanmar Asia-Pac
Nauru Asia-Pac

Nepal Asia-Pac

Oman Asia-Pac
Pakistan Asia-Pac

Palau Asia-Pac

Papua New Asia-Pac
Guinea
Philippines Asia-Pac

Qatar Asia-Pac

Samoa Asia-Pac

Saudi Arabia Asia-Pac
Singapore Asia-Pac

Solomon Asia-Pac
Islands
Sri Lanka Asia-Pac

Syria Asia-Pac
Tajikistan Asia-Pac

Thailand Asia-Pac

Timor-Leste Asia-Pac
Tonga Asia-Pac

Turkmenistan Asia-Pac

Tuvalu Asia-Pac

United Arab Asia-Pac
Emirates
Uzbekistan Asia-Pac
Vanuatu Asia-Pac

Vietnam Asia-Pac

Yemen Asia-Pac

Africa

Algeria Africa

Angola Africa

Benin Africa



16o Columbia journal ofAsian Law, Vol. 27, No. 1 (2013)

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

Justice) Rights)
Botswana Africa
Burkina Faso Africa
Burundi Africa
Cameroon Africa
Cape Verde Africa

Central Africa
African
Republic
Chad Africa
Comoros Africa
Congo, Africa
Democratic
Republic of
the
Congo, Africa
Republic of
the
C6te d'Ivoire Africa
Djibouti Africa
Egypt Africa
Equatorial Africa
Guinea
Eritrea Africa

Ethiopia Africa
Gabon Africa
Gambia Africa
Ghana Africa
Guinea Africa

Guinea- Africa
Bissau
Kenya Africa
Lesotho Africa
Liberia Africa
Libya Africa
Madagascar Africa
Malawi Africa
Mali Africa
Mauritania Africa
Mauritius Africa

Morocco Africa



International Criminal Law With Asian Characteristics? 161

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

justice) Rights)
Mozambique Africa
Namibia Africa
Niger Africa
Nigeria Africa
Rwanda Africa
Sdo Tom6 Africa
and Principe I
Senegal Africa
Seychelles Africa
Sierra Leone Africa
Somalia Africa
South Africa Africa
South Sudan Africa
Sudan Africa
Swaziland Africa
Tanzania Africa

Togo Africa
Tunisia Africa

Uganda Africa
Zambia Africa

Zimbabwe Africa

Eastern
Europe

Albania East Eur
Armenia East Eur
Azerbaijan East Eur
Belarus East Eur
Bosnia and East Eur
Herzegovina
Bulgaria East Eur
Croatia East Eur
Czech East Eur
Republic I
Estonia East Eur
Georgia East Eur
Hungary East Eur
Latvia East Eur
Lithuania East Eur
Macedonia, East Eur I



162 Columbia Journal ofAsian Law, VoL. 27, No. i (203)

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

_justice) Rights)

Former
Yugoslav
Republic of
Moldova East Eur

Montenegro East Eur

Poland East Eur

Romania East Eur

Russia East Eur

Serbia East Eur

Slovakia East Eur

Slovenia East Eur

Ukraine East Eur

Latin
America &
Caribbean
States

Antigua and Americas
Barbuda II

Argentina Americas

Bahamas Americas

Barbados Americas

Belize Americas

Bolivia Americas

Brazil Americas

Chile Americas

Colombia Americas

Costa Rica Americas

Cuba Americas

Dominica Americas

Dominican Americas
RepublicEcuador 

Americas

El Salvador Americas

Grenada Americas

Guatemala Americas

Guyana Americas

Haiti Americas

Honduras Americas

Jamaica Americas

Mexico Americas



International Criminal Law With Asian Characteristics? 163

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

Justice) _Rights)

Nicaragua Americas

Panama Americas

Paraguay Americas

Peru Americas

Saint Kitts Americas
and Nevis
Saint Lucia Americas

Saint Vincent Americas
and the
Grenadines
Suriname Americas

Trinidad and Americas
Tobago I

Uruguay Americas

Venezuela Americas

Western
Europe &
Others
Andorra WEOG

Australia WEOG

Austria WEOG

Belgium WEOG

Canada WEOG

Denmark WEOG

Finland WEOG

France WEOG

Germany WEOG

Greece WEOG

Iceland WEOG

Ireland WEOG

Israel WEOG

Italy WEOG

Liechtenstein WEOG

Luxembourg WEOG

Malta WEOG

Monaco WEOG

Netherlands WEOG

New Zealand WEOG

Norway WEOG



164 Columbia Journal of Asian Law, Vol. 27, No. 1 (2o3)

State UN ICC ICJ WTO ICCPR ICESCR
(sorted by UN Regional (States (States that (Member (States (States
regional Grouping Parties to have States of the Parties to Parties to
groups) the Rome accepted World Trade the the

Statute of compulsory Organization) International International
the jurisdiction Covenant on Covenant on
International of the Civil and Economic,
Criminal International Political Social and
Court) Court of Rights) Cultural

justice) I Rights)
Portugal WEOG

San Marino WEOG

Spain WEOG

Sweden WEOG

Switzerland WEOG

Turkey WEOG

United WEOG
Kingdom
United States WEOG

Other

Kiribati' 3  none

Total as at
end of 201 193 121 70 155 167 16i

Asia-Pacific 53 17 8 36 35 35

Africa 54 34 22 42 . 1 48
Eastern
Europe 23 7 19 23 23
Latin America
& Caribbean 33 27 13 32 29 28
States
Western
Europe & 29 25 20 26 29 27
Others

136 Kiribati is not a member of any regional group. Located in the Pacific, the fact that it
has not accepted any of the international obligations being evaluated mean that if it
were included for the purposes of this paper it would further lower the proportion of
Asia-Pacific states that have done so.