Fellows Program on Peace, Governance, and Development in East Asia

Author

Alex Dukalskis is a lecturer in the School of Politics and International Relations. He researches and teaches on authoritarian states, transitional justice, Asian politics and international human rights. His work has been published in Human Rights Quarterly, Journal of Peace Research, International Studies Review, Communist & Post-Communist Studies, and Democratization. Previously he was a lecturer at the University of North Carolina at Chapel Hill and a visiting scholar at Columbia University. He earned his dual Ph.D. in political science and peace studies at the University of Notre Dame, a master’s degree in human rights at the London School of Economics, and the undergraduate degree from Willamette University.

His research interests grew out of his professional work with the non-profit International Debate Education Association (IDEA). For several years he worked in over 20 countries in Asia, Europe, the Middle East and Africa to teach debate and promote it among young people as a tool to improve critical thinking and advocacy.

Abstract

This paper aims to understand the policies of three major Asian states toward the norms contained in the Rome Statute of the International Criminal Court. It does so in two ways. First, it traces the interaction of South Korea, Japan, and China with the Court since negotiations on its formation in the late 1990s. To do so it employs a unique measurement index that aims to accurately conceptualize a state’s “disposition” toward a particular international norm or set of norms. Second, it narrows its focus more to understand how the three major Northeast Asian states have responded to recent efforts to bring North Korea into the Court’s orbit. Based on these analyses theoretical implications about the mutually constitutive character of international norms are elaborated with reference to the Northeast Asian region.

Introduction

Now in its second decade, the International Criminal Court (ICC) has become an important institution of international law. The Court represents the revolutionary and sometimes controversial norm of individual accountability for perpetrators of genocide, war crimes, and crimes against humanity. Given that the ICC relies on states for its jurisdiction, operation, budget, governance, and ultimately its efficacy, it is important for scholars and policy makers to accurately conceptualize and understand the positions that states take toward the Court.

The Asian region is under-represented in the ICC's Assembly of States Parties (Chesterman 2014). More broadly East Asia is much less thickly institutionalized than other regions of the world and those institutions that do exist are not robustly legalized (Johnston 2012: 63-67). Scholarship on East Asian international institutions emphasizes that they tend to be characterized by relative informality, pragmatism, consensus-building, nonconfrontational styles of bargaining, and an aversion to excessively dense institutionalization (Acharya 1997; ibid.). On the one hand, then, the fact that the ICC is relatively undersubscribed in Asia is not surprising. The ICC is highly legalized in that its norms are clearly elaborated, the obligation to comply is binding, and implementation is delegated to a judicial institution (Abbott et al. 2000). One would therefore expect Asian states to be hesitant to accede to the Court.

On the other hand, Asia’s aggregate undersubscription to the ICC masks significant variation at the sub-regional level as Northeast Asia’s engagement with the ICC has varied over time and across states. Two Northeast Asian states in particular have played leadership roles with regard to the highly legalized and institutionalized ICC: South Korea and Japan. South Korea has been a major supporter of the Court since 2002, having ratified and incorporated the Rome Statute, promoted the Court to other states in Asia, and contributed financially to the ICC. The current president of the Court, Judge Song Sang-hyun, is a South Korean national. Legal and political obstacles prevented Japan from initially acceding to the Rome Statute, but after a lengthy legislative process at the domestic level, it became a party to the Rome Statute and a major advocate and supporter of the Court. China is not a member of the ICC and is unlikely to become one given its understanding of national sovereignty and serious reservations that it has regarding the Court's jurisdiction. Nevertheless, Beijing actively participated in drafting the Rome Statute and has attended meetings of states parties in an observational capacity. Furthermore, China has occasionally supported a role for the ICC such as when it voted in favor of United Nations Security Council Resolution 1970 which referred the situation in Libya to the Court in 2011. Thus Northeast Asia only partially conforms to the expectation that Asian states would be hesitant to join a highly institutionalized and legalized judicial institution with ramifications for security policy.

The empirical aim of this article is to understand how Northeast Asia’s three major states have engaged with the norm of individual accountability for war crimes, genocide, and crimes against humanity as embodied in the Rome Statute of the International Criminal Court. Theoretically, the aim of the article is to shed light on the mutually constitutive relationship between international norms and state agency (Kim and Sharman 2014). Like all states, China, South Korea, and Japan are embedded in an international normative structure that shapes their behavior and preferences in some domains of their foreign relations, but they are also active agents that seek to promote, shape, or undermine norms at the international level. This article will use an index called the Normative Disposition Indicators, or NDI, to accurately measure and assess the policies and dispositions of all three major Northeast Asian states toward the ICC over the past 15 years. This exercise provides a way to sys-tematically assess the between-case and within-case variation over time described briefly above...(Continued)