ICC chief lauds Japan’s commitment but is concerned court is underrepresented in Asia

by Jesse Johnson

Staff Writer

On a swing through Northeast Asia over the weekend, Silvia Fernandez de Gurmendi, the first female head of the International Criminal Court, lauded Japan’s commitment to the relatively young institution but voiced concerns about underrepresentation in Asia.

While the ICC boasts 124 countries and regions as members, including Japan — its top financial contributor — the court, which brings to justice individuals accused of genocide, crimes against humanity and war crimes, has faced an ongoing challenge in Asia.

In most regions, more than 60 percent of nations are party to the Rome Statute, the treaty that established the ICC. Asia, however, has fallen far short of this average.

“Asia is indeed the region that is more underrepresented in the system, with only one-third of the states now parties,” Fernandez, 62, said in an interview Saturday in Tokyo.

Major powers such as the United States, Russia and China are also not members.

In an effort to bolster awareness of the court and its activities, Fernandez is scheduled to travel to a regional seminar about the ICC in South Korea on Monday evening.

“We have done several of these seminars in different parts of the world in order to engage with countries which are parties and non-parties in different regions to raise awareness about the court . . . with the hope of enhancing participation in the system,” Fernandez said.

The three-day stop in Japan, which began Saturday, is seen as a kind of thank-you tour for its high level of support to the court over the years.

“Japan in addition to financial contributions . . . contributes in many other extremely important ways. Japan has a judge at the ICC, who is also vice president of the court, Japan has the chairman of the board of directors of the trust fund for victims, an autonomous institution linked to the ICC which is extremely important because it has the mandate to assist the court in the reparations to victims,” she said.

With her election as court president in 2015, Fernandez, together with her vice presidents, Kuniko Ozaki of Japan, Kenyan citizen Joyce Aluoch and ICC prosecutor Fatou Bensouda of Gambia — all women — precipitated what was a watershed moment for women in the ranks of international law. The four posts are widely seen as the court’s most influential legal positions.

Fernandez called this moment “extremely important in terms of reflecting what has been a constant movement from women to ensure that their interests are sufficiently reflected at the court.”

But despite this breakthrough, the ICC continues to face a rough ride amid criticism of its credibility and efficiency amid a worldwide uptick in nationalism.

Some African members have also blasted the court, even threatening to pull out over alleged bias, as the majority of its cases come from the continent.

Fernandez dismissed the accusations, instead highlighting the “enormous cooperation” between the court and member states on the continent.

“The court has opened 10 investigations so far,” she said. Of those, “most of them were opened at the request of African states concerned, which requested intervention of the court. Only in two occasions was the court initiating an investigation on its own.”

In November, it faced a new effort by 11 states to restrict its funding, which saw a proposed 7 percent increase in its annual budget of just over $157 million pared back to 3 percent — a move that could hurt efforts to open investigations in other regions outside of Africa.

Citing the global financial crisis, as well as inefficiencies in the court, the initiative was spearheaded by 11 nations, including Japan, Canada, France, Germany, Italy, Spain and the U.K.

Amnesty International ripped the move shortly after, calling it a “cynical approach” to funding key international bodies.

“The hypocrisy here is at a new level — supporting further ICC investigations (importantly, outside of Africa) one day but refusing to fund them the next,” the rights group said in a statement.

In Asia, two countries — and their leaders — have dominated news about the court: the Philippines’ Rodrigo Duterte and North Korea’s Kim Jong Un.

In the Philippines, prosecutor Bensouda has said that her office is watching for signs of officials “ordering, requesting, encouraging or contributing” to crimes against humanity in the president’s war on drugs that has left thousands dead.

“I am deeply concerned about these alleged killings and the fact that public statements of high officials of the Republic of the Philippines seem to condone such killings and further seem to encourage state forces and civilians alike to continue targeting these individuals with lethal force,” she said.

A self-confessed assassin who testified to being in a “death squad” under Duterte is expected to file a case at the ICC this month, accusing the Philippine president of crimes against humanity, his lawyer said recently.

Asked about the possibility of the North Korean leadership — including Kim himself — being referred to the court, Fernandez noted that because Pyongyang is not a treaty member, the institution has no jurisdiction there.

A United Nations commission recommended last year that the case of possible crimes against humanity by the North be referred to the ICC. Such a referral would only be possible if it receives U.N. Security Council approval, though China, the North’s only patron, would likely veto any attempt to do so.

The Security Council has previously referred situations to the court twice: Sudan in 2005 and Libya in 2011.

“We are a treaty body and as a treaty body, we can only investigate and prosecute within the parameters of the treaty basically when these acts are committed in the territory of a state party or by nationals of a state party,” Fernandez said.

According to Fernandez, there is a constant effort — from the court, the state parties, civil society and the international community as a whole — to try to enhance the universality of the court treaty.

“The court has a global mandate, has a global aspiration but it doesn’t yet have universal participation in the treaty, and that has a great impact on the effectiveness of the institution,” Fernandez said. “We cannot address all situations in an equal manner because of lack of jurisdiction.”

Still, she is optimistic that the court, which began functioning in 2002, has a bright future.

“The court is very young in institutional terms,” Fernandez said. “It’s a permanent court, it’s a global court, so it is unavoidable that sooner or later the court will be moving to other regions.

“We need to give time to the global court.”