Hong Kong as a centre for international justice

PUBLISHED : Monday, 02 June, 2008, 12:00am
UPDATED : Monday, 02 June, 2008, 12:00am

Something happened recently which, 20 years ago, would have been in the realm of fantasy. A powerful central African politician and warlord, Jean-Pierre Bemba, was arrested under a warrant issued by the International Criminal Court (ICC) and taken into custody for trial on charges of war crimes and crimes against humanity.

Bemba will be tried in the Netherlands, by a court of judges drawn from the countries which are parties to the international treaty under which the court was set up. His trial is likely to follow those of militia leaders from the Congo. Arrest warrants are outstanding relating to individuals in Uganda and Sudan.

The setting up of the ICC realised a dream of an international system of justice. Since the beginning of history, people who committed a single murder were likely to be punished by the law, while those who murdered thousands in the pursuit of power were labelled statesmen and revered by historians. The trials of war criminals after the second world war made a temporary and limited change but, because of cold war paralysis, there were no more such trials until Yugoslavia and Rwanda in the 1990s. There have since been international tribunals for Sierra Leone, East Timor and Cambodia.

One hundred and six countries are parties to the ICC treaty, which gives the ICC jurisdiction in relation to crimes committed in those countries, by nationals of those countries, or on special reference by the UN.

The United States has bitterly opposed the ICC, and put heavy pressure on allies not to join. Its motivation is fear that its nationals will be tried before a biased, anti-American international court.

This fear is somewhat illogical, as the court will not try people who are to be prosecuted under effective domestic prosecution arrangements. Charles Graner, serving 10 years for his role in the Abu Ghraib torture scandal in Iraq, would not have been tried by the ICC, as effective US trial arrangements were in place.

American pressure on its allies has been generally unsuccessful. Every European Community country is an ICC party except the Czech Republic. So are Australia, Canada and New Zealand. The ICC is also popular in Latin America, with its dark memories of the dirty wars of the 1970s. Every South American country has joined except Chile, where a constitutional amendment is needed to make it possible. For similar reasons, the ICC is popular in Africa, where 30 countries have joined.

The one region of the world lagging behind is Asia. But here, too, the ICC is making inroads. Japan and South Korea are parties, and Indonesia will become one this year.

China does not oppose the ICC on ideological grounds, as the US does, but has not yet made a move to join. It has, however, played a constructive role in the Yugoslavia tribunal.

Here lies an opportunity for Hong Kong. The rule of law has long been our strength, and Hong Kong is in the forefront of other international anti-crime efforts. The ICC statute allows it to conclude co-operation agreements with states which are not parties. The Basic Law allows it to conclude agreements with international organisations in appropriate fields.

It would be good for Hong Kong, which aspires to be a world city but does not yet have any major international organisation located here, to offer itself as an alternate venue for ICC trials, as part of a co-operation agreement also covering evidence and execution of arrest warrants.

The ICC statute permits the court to sit anywhere, and the court may welcome an Asian venue for future Asian trials. The terms of an agreement could be drafted so as to meet any reservations Beijing may have. But, as the agreement would not make mainland China or Hong Kong a party to the ICC, it would not affect the sensitive issue of jurisdiction.

Such an agreement would benefit everyone. I hope the secretary for justice will take action to bring it about.

Paul Harris is a barrister and was the founding chairman of Human Rights Monitor