I. Why the ADB is Well-Positioned to Build Regional Prosecutorial Capacity

The ADB was established in 1966. The organization was born from a recognition among Asian leaders that regional economic cooperation and financing would facilitate development in the Asia-Pacific region.4 Today, the ADB has sixty-eight member states—forty-nine from within the Asia-Pacific region.5 Of those forty-nine regional members, nineteen are also States Parties to the Rome Statute.6

At its core, the ADB is an economic institution seeking a “prosperous, inclusive, resilient, and sustainable Asia and the Pacific.”7 But while its ends are ultimately economic, its means are varied. As part of its development strategy, the ADB seeks judicial reform among its member states. The ADB accomplishes this work largely through its Office of the General Counsel (OGC) and its Law and Policy Reform Program (LPR program).8 While the LPR program has been justified in various ways over the years,9 it represents an institutional understanding that building rule of law is a key component of the development process. Recent examples of this work include the ADB’s efforts to strengthen judicial capacity in Mongolia.10 The goal of that work was to provide technical assistance to “Mongolia criminal court judges to render informed decisions on court cases involving economic crimes.”11 Another example is the ADB’s work with judges and prosecutors in Afghanistan. There, the ADB partnered with the Supreme Court of Afghanistan and the Attorney General’s Office to train 140 judges and prosecutors “on laws specific to gender sensitization, access to justice, and violence against women.”12 While the OGC stopped publishing annual reports of its LPR program, a survey of the ADB’s efforts in this area from 1990 to 2007 found that by 2007, the ADB managed over four hundred “regional, advisory, and small-scale technical assistance projects in judicial and legal reform with a total value estimated at USD 420 million.”13

In the mid-2000s, the ADB sought to measure the success of these projects. The results were mixed.14 This may explain why the ADB apparently deprioritized the LPR program, shifting resources elsewhere.15 But the ADB has not given up on judicial reform or the LPR program entirely. The projects in Mongolia and Afghanistan mentioned above are evidence of this fact. Further support comes from the ADB’s 2030 strategy, which acknowledges that:

Governance reforms […] and the rule of law are needed to sustain development momentum and to ensure that the benefits of growth are equitably and widely shared.16

Thus, given ADB’s past and ongoing investment in rule of law reform, the LPR program retains the potential to serve as a vehicle for building prosecutorial and judicial capacity among ADB’s member states. While building the capacity to prosecute cases involving core international crimes will no doubt face both internal and external challenges—challenges that are discussed in Part III of this comment—it nonetheless is useful to identify a mechanism that would allow the ADB to perform his work. That mechanism is the LPR program.

II. Implementation

The ADB’s ongoing judicial reform work in the Pacific acts as a useful model for how the ADB would implement a project aimed at building national capacity to prosecute Article 5 Crimes. In 2020, the ADB, through its LPR program, began providing technical assistance to its member states in the Pacific. This project has two goals:

1. “address gender inequality […] by strengthening the capacity of judicial systems to respond more effectively to violence against women and girls,” and

2. “increase knowledge sharing on gender-based violence and access to justice issues for women and girls.”17

To accomplish the first goal, the ADB will conduct an assessment of existing judicial capacity to address these issues, publish a report detailing the findings of the assessment, and then “develop and deliver customized capacity building programs for judges, magistrates, and prosecutors.”18 These programs will review the jurisprudence on crimes involving gender-based violence, including international conventions, legal principles, and legal standards.19 Further, the ADB will develop “bench books, handbooks, protocols, and/or guidelines on handling [violence against women and girls] cases.”20 To accomplish the second goal—increasing regional knowledge on gender-based violence and related legal issues—the ADB will “convene regional knowledge sharing events” on these topics and produce publications about gender-based violence cases and justice issues.21 The ADB is prepared to dedicate close to $1.2 million to carry out this work.22

In many respects, a project aimed at building judicial capacity to prosecute Article 5 Crimes would look identical to this work. The ADB would identify a portion of its member states that it believes would benefit from this work, or perhaps even a single state, then engage in the following:

1. assess existing judicial capacity,

2. publish its findings,

3. create training programs, handbooks, and guidelines based on international conventions for prosecuting Article 5 Crimes, and

4. convene regional events aimed at knowledge sharing on the prosecution of core international crimes. Further, this proposed work would be monitored and evaluated on a similar basis to the above-described projects.

For its work in the Pacific addressing gender-based violence, the ADB has published a monitoring and evaluation framework. Performance for the program will be based on outcomes and outputs, each with corresponding performance indicators, data reporting mechanisms, and assumptions.23 For example, one output identified is “[s]trengthened capacity of judicial systems in responding to [gender-based violence] cases.”24 As a performance indicator, the ADB expects that “[b]y 2024, at least 10 training programs [will be] delivered to judges, magistrates, and/or prosecutors.”25 The data that the ADB will use to monitor this work includes surveys, studies, and reports published by the ADB and its implementing partners.26 The ADB assumes that this work will face “cultural skepticism” and a “lack of support” from implementing partners.27

Again, if we replace the legal issue of gender-based crimes with Article 5 Crimes, we can envision a nearly identical evaluation and monitoring framework—one that seeks to provide training, assess the impact of the training, and operate under realistic assumptions of skepticism and a lack of support from implementing partners. Thus, using the ADB’s project on judicial capacity and gender-based crimes, we have a strong existing model to create a similar program aimed at building judicial capacity to prosecute Article 5 Crimes. Of course, such a program would face many obstacles.

III. Political Considerations

A. External Relationships Between the ADB and Japan, the United States, and China

This comment cannot address every political consideration for the program proposed above, but it will cover three important relationships that are likely to affect the ADB’s policy in this area. These relationships are those between the ADB and the United States, Japan, and China. Over the course of the ADB’s history, the United States and Japan have wielded the greatest influence over the bank’s policy.28 They share the two largest and equal voting positions in the bank29 and were both founding members. Between the two, scholars find that Japan has historically had more influence given its prominence in the region and its financial and political contributions.30 While China was not a founding member of the bank, it has gained influence over the bank in the last two decades and holds the third largest voting power in the ADB.31 It also has a growing regional influence and has founded a competing development bank, the Asian Infrastructure Investment Bank (AIIB).

Scholars have found that Japan has used its position within the ADB to advance its own policy agenda, thus its perspective on a judicial reform program must be considered. That said, it would likely not be a political obstacle. Not only is Japan a States Party to the Rome Statute, but it is also the greatest contributor to the ICC’s budget.32 Since its ratification of the Rome Statute in 2007, Japan has expressed consistent support of the court and has enjoyed close diplomatic ties to the court.33 Evidence of this comes as recently as March of 2022 when Japan elected to refer the situation in Ukraine to the ICC.34 The ICC has likewise expressed its gratitude for this support,35 and the ICC’s president has expressed interest in setting up a regional office in Japan to raise the court’s awareness in Asia.36 Given Japan’s public support for the Court and its embrace for its guiding principles, it seems that Japan would be supportive of efforts to build national capacity to prosecute Article 5 Crimes. One mitigating factor would be whether Japan, with an eye toward its relationship with China, would be sensitive to China’s perspective on such a program. While this comment cannot capture the full complexity of China and Japanese relations, it will address China’s possible perspective on this matter later in this Part.

Like Japan, scholars have found that the United States has used its position within the ADB to pursue its own policy. Unlike Japan, it is not a States Party to the ICC, has voiced opposition to the Court, and has even invoked sanctions against its Chief Prosecutor.37 While the United States has never fully supported the ICC, it seems that as a matter of principle, the United States supports the prosecution of international crimes abroad, so long as those prosecutions do not involve U.S. nationals.38

Rather, it seems that there are reasons why the United States may favor these efforts. First, public support for judicial institution-building abroad would be an easy public relations piece for international and domestic audiences. Second, and if we accept the assumption that prosecuting core international crimes would have a stabilizing effect on conflict-affected or conflict-prone states (see discussion infra, then the United States may have an interest in building national prosecutorial capacity. The United States has increasingly sought to counter China’s influence in the Asia-Pacific.39 Building judicial capacity for core international crimes could be another mode by which the United States exercises that influence. This proceeds under the theory that the more stable these countries are and the more capable their judicial instructions are, the less susceptible they may be to Chinese influence. Further, strong regional judicial intuitions may deter China from taking aggressive actions during territorial disputes in the region.

Moreover, even under a U.S. administration that is hostile to the work of the ICC, building national prosecutorial capacity in Asia-Pacific states may be compelling in that it would in theory shift jurisdiction away from the ICC by way of complementarity. In a way, this would decrease the ICC’s relevance in a region where the ICC is actively seeking40 more influence.

As a final consideration, the United States has limited active military engagements in the Asia-Pacific region, and at this juncture, it is difficult to imagine that the United States would engage in active warfare in a state likely to be affected by this program. Thus, an increase in domestic capacity to prosecute core international crimes would not constitute a threat to U.S. nationals. Given these considerations, it seems that at worse, the United States would be neutral with respect to increasing regional capacity to prosecute Article 5 Crimes. At best, it may be supportive of these efforts.

Of the three, China would likely be the most hostile to ADB projects meant to build regional capacity to prosecute core international crimes, but even that hostility may be limited. Like the United States, China is not a States Party to the ICC. In part, its objection to joining as a States Party involves issues related to sovereign integrity and the belief that the ICC should not have jurisdiction over a state’s internal affairs.41 China’s objection would also stem from its disagreement with the Rome Statute’s definitions of crimes under Article 5.42 To this end, were the ADB to move forward with this project, China would likely try to influence how the program defines the international crimes in question.

That said, given China’s disposition toward the ICC and the belief in sovereign integrity, it may prefer to see states within the Asia-Pacific region develop their own capacity to prosecute these crimes nationally. As mentioned above, this would in theory limit the ICC’s jurisdiction in the region through complementarity and thus lower the odds of perceived ICC encroachment into regional sovereign states. On the other hand, China may oppose this work to the extent that it affects parts of the region where it has territorial disputes, as China would be opposed to having its actions in those areas potentially subject to proceedings by the ICC or another judicial body. In any case, if the ADB elected to pursue this program, it is hard to imagine it would do so in politically sensitive areas.

But even if China opposed this work, the ADB is not helpless. China is the second largest receiver of ADB loans.43 In response to Chinese opposition, the ADB could either limit the number of loans it provides to China or increase the interest rates on those loans. Further, there is precedent for the ADB taking this action, as the ADB has already raised interest rates on higher-income countries, in part as a means of reducing financial aid to China.44

Another complicating aspect of this relationship is the AIIB, which was founded by and is led by China. Increasingly the AIIB has acted as a competitive force to the ADB.45 While the two have co-financed several projects, the AIIB is growing in regional influence as a financier for developing states. Given that the ADB has recognized its waning financial influence in the region,46 it may be hesitant to take any action that would jeopardize its work with the AIIB and its relevance in the region.

While this analysis is necessarily circumscribed, and these three relationships do not constitute the full political picture, they suggest that the ADB’s most influential member states may not provide a significant obstacle to the ADB carrying out this work. Rather, the most significant obstacle would likely come from within the organization.

B. Internal Political Challenges and Institutional Challenges

The prosecution of Article 5 Crimes is a controversial topic in any region.47 Given the regional politics on these crimes, the ADB may find that wading into those controversial waters would be an unjustifiable risk, especially given fears of waning regional relevance. Further, the organization has shown ambivalence to judicial reform generally—this ambivalence may in part explain why the ADB’s LPR program has apparently been deprioritized over the last two decades.48 In addition, internal stakeholders may struggle to explain how the prosecution of core international crimes would facilitate economic development. Doing so would necessarily rest on two assumptions:

1. prosecuting these crimes has a significant deterrence effect—one that would lead armed groups to avoid conflict out of fear of prosecution for those crimes and thus lower the incidence of conflict generally; and

2. conflict has negative economic outcomes.

While the question of deterrence is the subject of much debate49 and beyond the scope of this comment, it nonetheless must be accepted that the threat of prosecution is more credible when there is institutional capacity than when there is not.

Regarding conflict and its effect on the economy, the academic consensus accepts that as a general matter, conflict does have negative economic effects.50 Further, research has shown that conflict in one nation has negative spill-over effects for neighboring countries.51 The ADB seems to accept this scholarship. In 2021, the ADB published a report on its goals to address fragile and conflict-affected situations.52 As part of this work, the ADB has a stated goal to “build resilience, address the underlying causes of fragility and conflict, and promote reconciliation and reconstruction.”53 By developing a program aimed at conflict-affected states, the ADB has shown that it accepts the proposition that conflict harms economic growth. If internal stakeholders can convince ADB’s leadership that the prosecution of core international crimes would likewise contribute to the ADB’s economic mission, then there would be a valid theoretical basis for justifying the program advocated by this comment.

Further, this would not be the first time that the ADB has pursued tangentially related programs in support of its mission. Take the above-described example of the ADB’s efforts on promoting gender equality and reducing gender-based violence. These efforts seek goals that are not per se economic but do have indirect economic effects—research shows that gender equality has a positive impact on economic growth.54 Internal stakeholders could use this work as justification for taking other tangential paths toward economic growth and stability, such as providing member states with a channel for seeking justice after conflicts and deterring future actors from engaging in further conflict.

Internal stakeholders could also look to ADB’s published 2030 outlook report—the ADB has conceded that to stay relevant as its member states develop, it must increasingly act as a source of knowledge, rather than just a source of financing.55 Helping its member states understand and implement best practices across numerous governance topics, including international conventions on prosecuting Article 5 Crimes, could fit beneath that goal.

Conclusion

The ADB has had a long history in the Asia-Pacific region and has played an influential role in the region’s development. Together with its broad reach among its member states, this gives the ADB a strong foundation to implement a judicial reform program. Further, the ADB has already demonstrated a willingness to engage in judicial reform on several legal topics through its LPR program. Its work in these areas, particularly its work in the Pacific to facilitate judicial reform aimed at crimes of gender-based violence, serves as a useful framework for pursuing judicial reform aimed at building national capacity to prosecute core international crimes. In consideration of the ADB’s three most important state relationships—those between the ADB and Japan, the United States, and China—there is reason to think that there may be minimal opposition to this judicial reform. The greatest opponent may come in the form of institutional apathy at the ADB to pursue this program. Internal stakeholders would need to convince ADB leadership that there is a justification for this work that fits within ADB’s mission of economic prosperity. Given that the ADB has demonstrated a willingness to engage in judicial reform programs aimed at non-economic legal issues and the apparent lack of external opposition from the ADB’s most important stakeholders, the ADB is well-positioned to enable domestic prosecution of Article 5 Crimes. This program would contribute to the principle of complementarity and could serve as an instructive model for engaging with other multilateral development banks.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law, 35 New Eng. L. Rev. 399, 410–18 (2001), available online. ↩

2. 2.

   Examples include the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human and Peoples’ Rights. ↩

3. 3.

   Examples include the African Development Bank, the Islamic Development Bank, and the European Bank for Reconstruction and Development. ↩

4. 4.

   See generally Nihal Kappagoda, The Multilateral Development Banks Vol. II: The Asian Development Bank (1995), paywall. ↩

5. 5.

   Who We Are, ADB, available online (last visited Aug. 29, 2023). ↩

6. 6.

   The nineteen states that are both members of the Asian Development Bank and signatories to the Rome Statute are Afghanistan, Australia, Bangladesh, Cambodia, Cook Islands, Fiji, Georgia, Japan, Kiribati, Maldives, Marshall Islands, Mongolia, Nauru, New Zealand, Republic of Korea, Samoa, Tajikistan, Timor-Leste, and Vanuatu. ↩

7. 7.

   Asian Development Bank, supra note 5. ↩

8. 8.

   See generally Our Work in Law and Policy Reform, ADB, available online (last visited Aug. 29, 2023). ↩

9. 9.

   See Livingston Armytage, Judicial Reform in Asia Case Study of ADB’s Experience: 1990–2007, 3 HJRL 70, 86 (Jan. 2011), available online, doi. ↩

10. 10.

    Asian Development Bank, Mongolia: Strengthening the Capacity of Judicial Training (Nov. 2015), available online. ↩

11. 11.

    Id. at 1. ↩

12. 12.

    Press Release, Asian Development Bank, Judges and Prosecutors in Afghanistan Receive Expert Legal Training, Focused on Rights of Women, from ADB (Dec. 19, 2018), available online. ↩

13. 13.

    Armytage, supra note 9, at 94. ↩

14. 14.

    See id. at 94–95. ↩

15. 15.

    See id. at 100. ↩

16. 16.

    Asian Development Bank, Strategy 2030: Achieving a Prosperous, Inclusive, Resilient, and Sustainable Asia and the Pacific 8 (Jul. 2018) [hereinafter Strategy 2030], available online, doi. ↩

17. 17.

    Asian Development Bank, Promotion of Gender-Responsive Judicial Systems, 1 (Dec. 2020), available online. ↩

18. 18.

    Id. at 4. ↩

19. 19.

    Id. ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Id. at 6–7. ↩

24. 24.

    Id. ↩

25. 25.

    Id. at 6. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    See, e.g., Christopher Kilby, Donor Influence in Multilateral Development Banks: The Case of the Asian Development Bank, 1 Rev. Int’l Org. 173, 192–94 (2006), paywall, earlier version, doi. ↩

29. 29.

    Asian Development Bank, 2020 Annual Report 75 (Appendix 5: Members, Capital Stock, and Voting Power) (Apr. 25, 2021) [hereinafter 2020 Annual Report], available online, doi. ↩

30. 30.

    See, e.g., Daniel Yew Mao Lim & James Raymond Vreeland, Regional Organizations and International Politics: Japanese Influence over the Asian Development Bank and the U.N. Security Council, 65 World Pol. 34, 44–45 (Jan. 2013), available online, doi. ↩

31. 31.

    2020 Annual Report, supra note 29, at 75. ↩

32. 32.

    Press Release, ICC, ICC President Visits Japan, Meets with Senior Officials and Concludes Cooperation Agreement with UNAFEI (Oct. 24, 2022) [hereinafter ICC President Visits Japan], available online. ↩

33. 33.

    See, e.g., Yasumasa Nagamine, Ambassador of Japan to the Netherlands, Statement at the Eleventh Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov. 15, 2012), available online. ↩

34. 34.

    Press Release, Ministry of Foreign Affairs of Japan, Referral of the Situation in Ukraine to the International Criminal Court (Mar. 9, 2022), available online. ↩

35. 35.

    See, e.g., ICC President Visits Japan, supra note 32. ↩

36. 36.

    Junko Horiuchi, Int’l Criminal Court Head “Keen” to Set Up 1st Regional Office in Japan, Kyodo News, Oct. 21, 2022, available online. ↩

37. 37.

    Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online, archived. ↩

38. 38.

    See, e.g., id.; Harry M. Rhea, The United States and International Criminal Tribunals: An Historical Analysis, 16 ILSA J. Int’l & Comp. L. 19 (2009), available online. ↩

39. 39.

    See, e.g., Munir Majid, LSE, Southeast Asia Between China and the United States (Nov. 2012), available online. ↩

40. 40.

    See Horiuchi, supra note 36.

    (The ICC’s desire to install a regional office in Japan is driven by a desire to have more relevance in the Asia-Pacific region). ↩

41. 41.

    See, e.g., Dan Zhu, China, the International Criminal Court, and Global Governance, 73 AJIA 585, 597 (2019), paywall, archived, doi. ↩

42. 42.

    See, e.g., Bing Bing Jia, China and the International Criminal Court: The Current Situation, 10 SYBIL 87, 89–90 (2006), available online. ↩

43. 43.

    Asian Development Bank, Financial Report 2021 (Mar. 2022), available online. ↩

44. 44.

    See Press Release, Asian Development Bank, ADB Introduces New Loan Pricing for Higher Income Countries (Nov. 19, 2019), available online; see also Stanley White, U.S. to Pitch for Higher Lending Rates at ADB Meet as Region Eyes China, Reuters, May 4, 2018, available online. ↩

45. 45.

    See, e.g., Viktor Jakupec & Max Kelly, The Relevance of Asian Development Bank: Existing in the Shadow of the Asian Infrastructure Investment Bank, 5 JRSEI 31, 34–36 (Sep. 2015), available online. ↩

46. 46.

    Strategy 2030, supra note 16, at 24.

    (“Given the rapid changes in Asia and the Pacific and the fact that most [Developing Member Countries] have attained middle-income status, ADB’s continued relevance will increasingly depend on its role as a knowledge institution.”). ↩

47. 47.

    This is due to fundamental differences among states as to what should define core international crimes, the proper jurisdiction over these crimes, and how the prosecution of these crimes contributes to a state’s understanding of justice. ↩

48. 48.

    See Armytage, supra note 9, at 71, 101–03. ↩

49. 49.

    See generally Martin Mennecke, Punishing Genocidaires: A Deterrent Effect or Not?, 8 Hum. Rts. Rev. 319 (Jul. 2007), paywall, doi. ↩

50. 50.

    See, e.g., Olaf J. de Groot, The Spillover Effects of Conflict on Economic Growth in Neighbouring Countries in Africa, 21 DPE 1, 2–2 (Apr. 2010), available online, doi. ↩

51. 51.

    Id. ↩

52. 52.

    Asian Development Bank, Fragile and Conflict-Affected Situations and Small Island Developing States Approach (Jun. 2021), available online, doi. ↩

53. 53.

    Id. at 8. ↩

54. 54.

    See, e.g., Marie-Louise Litmeyer, Leah Bender, Sina Happel, Alexa Peusch, Nicola Spory & Stefan Hennemann, The Effects of Gender Equality on Economic Development in Europe, 76 Erdkunde 21, 29–32 (Jan. 2022), available online, doi. ↩

55. 55.

    Strategy 2030, supra note 16, at 24. ↩