CLD Criminal Law Basics
Singapore and the International Criminal Court: Myth of a Globalised Criminal Justice?
Introduction
The localisation of criminal justice discourse is inescapable. Understandably, crimes which occur in close proximity to us (one dare say in Yishun, perhaps) and which affect our kin conjures an unparalleled immediacy and urgency compared to crimes happening in, say, the Rakhine state of Myanmar. Naturally, the nuances of “criminal justice” and sentiments of the same are thus nurtured, developed and will continue to evolve almost in a silo—separate from the international order and specific to the legal, social and cultural peculiarities of our nation-state.
This article attempts to discuss Singapore’s oft-overlooked position vis-à-vis the international criminal justice system. International criminal law and in particular, the International Criminal Court (“the ICC”), are examples of frameworks which sit stratospherically above all of the world’s conceivable silos of “criminal justice”. In fact, the earliest forms of the international criminal law framework precede even the formation of some of today’s nations.
After the Armenian Genocide in the 1910s, attempts by the Allied administration in Constantinople to try members of the government of the Ottoman Empire can be construed as setting the stage for replacing a culture of impunity with that of accountability. In the same vein, the Tokyo and Nuremberg trials after the end of WWII can be seen as representing a pivotal transnational effort to punish crimes against humanity and other war crimes. These historical developments thus laid the foundation for future intergovernmental deliberations of a permanent international criminal court.
While the end of WWII marshalled worldwide attention to the atrocities committed by the Axis powers, the overall hostile diplomatic relations during the Cold War halted any effort to establish a permanent international criminal court¹. In the early 1990s, as the machetes started swinging in Rwanda to the tune of close to a million deaths and news of the Balkan brutalities echoed around the globe, the motivations for the Rome Statute became desperately apparent.
What is the ICC?
The ICC was officially created when 160 states convened in Rome, Italy in the summer of 1998 to negotiate the contents of the Rome Statute (“the Statute”), leading to its eventual adoption after five continuous weeks of meetings. The Statute is the founding treaty of the ICC and it entered into force on 1 July 2002.
The Statute comprises 128 articles which are split into 13 parts. Of particular relevance is Part II which details the jurisdiction of the ICC, the admissibility of cases, and the applicable law to be applied by the ICC in its proceedings². The other Parts of the Statute states, inter alia, the Court’s structure, procedural rules, rules of evidence, applicable penalties, role of states in enforcement, and other financing regulations.
The jurisdiction of the ICC, as stated in Article 5 of the Statute, covers the following crimes:
- The crime against genocide;
- Crimes against humanity;
- War crimes; and
- The crime of aggression.
A significant feature of the Statute which empowers the Court (subject to the Court’s procedural requirements) to prosecute individuals or heads of states for the abovementioned crimes ensures that ideally, not even dictators can escape the prosecutorial arm of the ICC². This feature, as enshrined in Article 25 of the Statute, would later on be referenced in criticisms of the ICC as a neo-colonialist endeavour, seen in its disproportionately frequent prosecution of African leaders. It also possibly hints to why the United States, Russia and China have either withdrawn membership or refused to ratify or accede to the Statute.
With respect to other international organisations, the ICC is envisaged to be an independent permanent judicial organ, ideally distanced from potential politicisation of issues involving the United Nations Security Council (UNSC), and at the same time sidestepping prevailing national constitutional bans on the creation of special courts³. We will soon understand that such ideals have been incredibly difficult to satisfy.
It is argued that only the widest ratification from all sovereign nations can truly ensure the Court’s independence. As of October 2017 (when Burundi withdrew as a member state), 123 countries have both signed and ratified the Rome Statute⁴. Singapore is not one of those countries.
Singapore’s role in the creation of the ICC
Singapore’s non-ratification of the ICC appears incongruous with its extensive involvement in both the formation of the Statute as well as in international legal arena insofar as international criminal law is concerned. Around the same time in the early 2000s when states around the world were ratifying the Statute in droves, former Judicial Commissioner SC Amarjeet Singh was nominated by the UN General Assembly as an ad litem judge of the International Criminal Tribunal for the former Yugoslavia (ICTY)⁵. As a Singaporean legal luminary sat in The Hague presiding over monumental cases which were transformative in the realm of international humanitarian law, the Singaporean government was silent on its decision to ratify the very same Statute it had a role in shaping.
Indeed, Singapore’s voice on the negotiation table was all but soft. The diplomatic might of Singapore’s representatives in the Rome negotiations came to light when a sensitive issue surfaced regarding the role of the UNSC, a political organ, vis-à-vis the judicial function of the Court.
Conventionally, Articles 24(1) and 103 of the UN Charter recognise the indispensable role of the UNSC to maintain international peace and security. The primacy of this UNSC responsibility in turn informed Article 3(3) of the International Law Committee (ILC) Draft Statute (the precursor to the finalised Statute) which allowed the Council to prohibit any prosecution if it arose from a situation which concerns the Council as being a “threat to or breach of the peace or an act of aggression”, unless the Council approved otherwise⁶. Essentially, the ILC Draft Statute proposed that any decision by the Court to trigger prosecution effectively depends on the UNSC’s approval.
In balancing the two competing considerations of judicial independence and executive authority, a compromise formulation was proposed by the respected representative of Singapore’s delegation, current Deputy Attorney-General Mr Lionel Yee. The proposal occupied the middle ground where the Court’s proceedings in investigation or prosecution may proceed, unless the UNSC formally decides to halt the process, a move requiring the minimum nine affirmative votes in the Council⁶. Further, the prevention or suspension of such proceedings will be limited to a renewable 12-month period. This arrangement eventually became known as the “Singapore compromise” and is enshrined in Article 16 of the Statute².
In his statement to the President of the Diplomatic Conference in Rome, Mr Yee called for the formation of an “institution which enjoys as universal a participation of states as possible”⁷. While Singapore’s unshakeable confidence in the arduous task of authenticating a holistic form of international criminal justice was seemingly evident at the infancy of the Statute, its eventual refusal to engage with the ICC belies this approach. So why is Singapore not a state party to the Statute? The reason might be a confluence of factors, of which some might not be in Singapore’s direct control.
Singapore’s position on the ICC and the Rome Statute
Even though Singapore’s major contribution to the Statue remains preserved in its Article 16, the culmination of the meetings in Rome saw Singapore abstain from the vote to adopt the Statute. Singapore joined 20 other countries in abstinence, while 120 voted in favour and seven rejected the Statute ⁸. The representative from Singapore explained the delegation’s vote after the fact:
It always supported a strong Court; however, in the last hours, provisions were drafted which involved just a small group of countries. There was a strange fix for the question of jurisdiction which had appeared for the first time at the last minutes of the Conference. To our dismay, chemical and biological weapons have been inexplicably dropped. The non-inclusion of the death penalty was also a negative aspect.⁸
The above explanation elucidates the hegemonic presence of a few powerful countries on the negotiation table. Singapore’s wish to have the Court recognise the death penalty as a punishment, as echoed by a vocal minority of other mostly Muslim states, was jettisoned from the final Statute.
To contextualise Singapore’s reticence beyond the whirlwind of the Rome Conference, one would benefit from looking at the response of the wider Asian region. Of the 123 countries which have ratified the Statute, only 19 countries are in the Asia-Pacific. In the Association of Southeast Asian Nations (ASEAN), only Cambodia and the Philippines are state members⁹. Even then, President Duterte has announced the Philippines’ withdrawal from the ICC, while Cambodia’s engagement might be a cautionary reaction to a history of genocide with wounds all too recent¹⁰. Unlike continental unions such as the EU or the African Union, ASEAN exists primarily to serve common national interests, with little to no attempt at unifying principles or values of the myriad identities of criminal justice¹¹.
It is also worth exploring Singapore’s brush with international tribunals in the past before the eventful Rome Conference. Besides the International Military Tribunal for the Far East (IMTFE) after WWII, there were other locally-based trials held in military courts set up in places like Singapore and Hong Kong. Notably, the Singapore Trials saw the participation of Allied lawyers and judges from Australia, the U.S., and Netherlands¹². However, barriers in communication, participation, and argumentation manifested due to cultural differences between trial participants. Cultural relativism therefore impedes the efficacy of such tribunals. Similarly, one can expect such cultural clashes to be amplified as member states try to navigate the sensitive and complex crimes under the ICC’s jurisdiction.
Further, Professor Simon Chesterman noted that in the Tokyo Trials, the U.S.’ involvement in the trials was seen as instrumentalising international criminal law for “selective engagement” with Japan’s domestic political process with the aim of securing a stable post-war Japan while subduing liberation struggles in the region¹¹.
At bottom, Asia’s brief experience with international criminal justice in the wake of WWII might have fostered in Singapore and other countries in the region a measured wariness to the political reach of such institutions. The operation of these Western-led tribunals in the past, steeped in the political context of decolonisation and race, has ostensibly shaped our attitudes to and expectations of bodies like the ICC.
Prospects of Singapore’s accession to the Rome Statute
How likely, then, is a shift in regional attitude towards the efficacy of international criminal justice? Professor Mark Findlay, by way of an incisive “taxonomy of reluctance”, deciphered the general patterns of non-engagement of Asian states to reason why a “one size fits all” variety of global criminal justice might not be a favourable arrangement¹³.
Among a multitude of reasons, Professor Findlay identifies constitutional legality as a reason for the continued reluctance of some Asian states to engage with the ICC. While domestic criminal justice systems with fragile and compromised capacities tend to gravitate towards the ICC, countries like Singapore with “relatively well-resourced, centralised and resilient criminal juridical institutions” would inversely be comfortable managing its own criminal affairs within the ICC’s jurisdiction¹³. Interestingly, Chapter VIB of the Singapore Penal Code prohibiting the crime of genocide was introduced in 2007. In fact, Section 130D which lists the acts amounting to genocide and Article 6 of the Statute are both in pari materia¹⁴. The Parliament’s move to affirm the criminality of genocide in the Penal Code suggests an attempt at recognising the substantive content of the Statute, short of the institutional, financial, and ideological commitment expected from an ICC membership.
Further, based on Singapore’s initial explanation of its abstinence from the vote to adopt the Statute over 20 years ago in Rome, the lack of any recommended amendment of the Statute which would reflect the Court’s commitment to capital punishment means that Singapore is unlikely to budge towards accession. More broadly, this subscribes to an incompatibility between the proliferation of rights-focused “human rights charters and leadership codes” and Singapore’s stance on the death penalty, which is seen as a major transgression of human rights by UN standards¹³. Once again, constitutional legality trumps any notion of global jurisprudence on criminal law.
A case for accession?
With a lack of grassroots support in civil society calling for the country’s accession to the ICC, there is, in response, no strong indication on whether Singapore will eventually accede to the Statute. In October 2012, Singapore became the focus of the Coalition for the International Criminal Court’s Universal Ratification Campaign (URC). The global coalition, addressing Prime Minister Lee Hsien Loong, called on Singapore to affirm its support for justice and the rule of law by acceding to the Statute¹⁵.
In the coalition’s appeal, the case for accession was substantially argued for. In essence, ratification advocates have continuously stressed that the towering silos of “criminal justice” around the world are more apparent than real. Highlighting the system of complementarity (which concedes to the nation state the primary duty to investigate and prosecute crimes in the ICC’s jurisdiction), the norm setting function of the Court, and the need for state cooperation for evidence collection and witness testimony, Court representatives and advocates urged non-state parties like Singapore to strive for accession¹⁵.
Conclusion
While the present discussion relates to international criminal justice, one should not be trapped by the deceptively easy process of synonymising Singapore’s reticence to accede to the Statute with a disgraceful reluctance to assert punishment against war crimes or genocide.
Instead, disposing a parochial understanding of Singapore’s diplomatic strategy in favour of an appreciation of the government’s behaviour towards other treaties in general assists us to conclude that Singapore’s non-accession to the Statute is representative of its overall attitude towards international institutions and treaties. For instance, Singapore has yet to accept compulsory jurisdiction of the International Court of Justice (ICJ) and is not a state party to both the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR)¹¹. Singapore’s calculated stance is consistent across the board and commands an inter-agency consensus on its realistic role with respect to these international creatures—be they legal, financial, or political.
It remains to be seen what Singapore’s future decision is with respect to the Statute. As with any other transnational endeavour, accession to an international treaty bears significant weight but also comes with major administrative and allocative challenges. Regardless, Singapore is steadfast: the silo will stand, for now.
This article was written by Ahmad Musthofa Bin Murdifi, NUS Law Batch of 2022
*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.
Bibliography
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