In the domestic dimension, one of the severe setbacks for the efficacy in the discharge of the responsibilities of the ICC, International War Crime Tribunals and all ad hoc International Criminal Tribunals, can stem from the unscrupulous legislative practice of the States concerned, viz, a "self-proclaimed" amnesty, which is a common occurrence in the Third World countries, Thailand included. In effect, after a coup d'Etat or as a sine qua non for their stepping down from power, tyrants, military junta and despot always demand an enactment of Amnesty Act to ensure their impunity for violations of Human Rights and war crimes that they have or could have committed in the course of their coup d'Etat or while they were in power. Albeit its invalidity and non-recognition on international plane in regard of outrageous and systematic violations of Human Rights and war crimes, an amnesty can, nonetheless, obstruct the course of justice on international as well as municipal planes, viz it renders the extradition in due process of law of the indictee inconceivable, because, primo, once given an amnesty the indictee is legally deemed to have never committed the crimes falling under the ambit of that amnesty, consequently, there would no longer be a legal ground for his arrest. Secundo the double criminality criterion which is a prerequisite for any extradition can no longer be fulfilled. Besides, given that a person can neither be prosecuted nor tried in any national criminal court for the crimes that he is deemed, by the law of the country, to have never committed(50), there is no room for the application of the aut de dere, aut judicare principle.

AD HOC TRIBUNALS AS ALTERNATIVE OPTION

The I.C.C. has failed to recognize or improve upon the weaknesses that are so apparent in the operation of the ICTY. Simply providing greater powers of jurisdiction and scope, and giving the Court a "permanence" should not suffice to rehabilitate it from its inherent shortcomings. What is needed is not a mere standing court ready to mete out justice, but also the genuine conviction and understanding among nations that serious crimes against humanity are international problems, not local ones. Nothing may dissuade the next Milosevic or Saddam Hussein from committing genocide, but the possibility exists that the on-going trial of Milosevic by such a court could have some deterrent effect.

An ad hoc international tribunal from the viewpoint of its proponents would have several advantages over an I.C.C. inter alia Firstly, it would be limited in scope and purposes-not requiring those nations agreeing to its terms to commit themselves to a standing body with impenetrable statute. Secondly as it would not have members with lengthy period of appointment it should be less vulnerable to being biased and distorted by political concerns, and "career" jurists with their individual agendas. It would therefore be free to impanel those with the expertise and experience needed to deal specifically with the issues at hand - none of which could be fully and accurately envisioned beforehand.

In their view, rather than a standing I.C.C., a watchdog group comprised of rotating representatives from member nations should be commissioned and empowered by the UN to collectively convene an investigative body should there be reasonable ground to believe that a crime of international concern was committed by an individual. Furthermore, if at all possible, the investigation should be performed together with the host nation. Once the investigation is completed, this group would then present their findings to both the "host" nation and a newly convened international ad hoc court assembled for the limited purpose of addressing this one issue - a court with the authority to indict, extradite, prosecute and punish the criminals. Should a probable cause be found that such a crime has been committed, the "host" nation should be given an opportunity to utilize the international court and its resources to prosecute the alleged offenders, or to choose to prosecute them in its national courts. This would maximize the likelihood of their cooperation. Lacking such cooperation, the previously agreed upon international sanctions should be imposed on the uncooperative nation.

This problem will never be an easy one to address because the issues of a nation's sovereignty and cooperation will always be at the forefront. Failing the cooperation of the host nation, there is little that can be accomplished. The effectiveness of such a plan will rest primarily in the shared principles and goals of the signatories to an agreement establishing such an ad hoc court system. However, given the less intrusive nature of the body coupled with greater authority vested in the host nation there is a greater likelihood that such cooperation would be forthcoming.

THE PROSPECTIVE OF THAILAND'S RATIFYING THE ROME STATUTE

Given that "The Commission for the Consideration of the Statute of the International Criminal Court"(51) was established on January 19th, 1999, by the resolution of the Council of Ministers to undertake the feasibility study for Thailand's ratification of the Rome Statute of the International Criminal Court, and that its Translation Sub-Committee has already completed the translation of the 128 articles of the Statute(52), and also that symposium and seminars have subsequently been organized by the National Congress of Law, the Ministry of Foreign Affairs and the Senate's International Affairs Commission respectively to probe the public opinion in this respect(53) and to enhance the public awareness of the desirability for Thailand to ratify the Rome Statute, there does not seem to be any doubt that Thailand seriously envisages adhering to the Rome Statute of the ICC(54). The procedure for its ratification of the Statute of the ICC in due process of law is however very complex and time-consuming(55), due to the fact that, unlike the ratification of the Statute of the International Court of Justice (I.C.J.), which does not automatically entitle the Court to have jurisdiction over disputes involving the ratifying members of its Statute without their prior acceptance of its jurisdiction, a ratification of the Rome Statute of the ICC is per se also an acceptance of the jurisdiction of the Court. Consequently, before ratifying the Statute of the ICC, the impacts of its ratification and all relevant legal issues must be meticulously scrutinized, and its procedural requirements have to be fulfilled first, e.g. prior approvals of the Council of Ministers and of the Parliament(56) have to be secured and its implementing legislation has to be enacted, etc., because once ratified, the stipulations of the Statute of the ICC will be legally binding on Thailand forthwith in toto.

In its feasibility study for Thailand's ratification of the "Rome Statute of the International Criminal Court", all facets of its impacts, both on international and domestic planes have to be thoroughly probed by the "Commission". On the international plane, the consequences of the ratification of the ICC Statute would obviously be positive for the country in the sense that not only would it project the image of Thailand as a serious proponent of the respect and protection of human rights, but it could, to some extent, also have a deterrent effect against a temptation for bellicose and hegemonic heads of State to transgress or infringe on its territorial integrity, because heads of State, as the Supreme Commanders of the Armed Forces, could be held personally accountable for crime of aggression or gross violations of human rights committed under their command or instigation(57), or even merely with their laisser-faire when they could have averted them.

On the domestic plane, Thailand's ratification of the Rome Statute would be a good guarantee for Thai people against the war crimes and abuses of power by the public authority that amount to the gross violations of human rights. It would,, however, require the amendments of an unknown number of the existing laws that could not accommodate the implementation of the totality of the stipulations of the Rome Statute. For instance, the prevailing Extradition Act does not permit an extradition requested by an international organization, the universal jurisdiction regime is still to be established, the crime of terrorism is inexistent under the current Penal Code, the Criminal Procedure and the Penitentiary Acts will need to be amended to enable the implementation of many procedural matters under the Statute of the ICC(58), etc. To accomplish such a task, a time-consuming comprehensive inventory of the Thai legislation needs to be made so as to identify the existing laws that have to be amended and the new laws that need to be enacted. Such an undertaking will require a lot of time and will probably take even longer time when the ratification of the ICC Statute is given low priority compared to more urgent matters like the security problems in the Southern part of the Peninsular, etc. Although the resort to a legislative shortcut by enacting a legislation, comprising only 5-6 articles that gives the force of law to the Statute of the ICC appending in annex thereto will ensure a comprehensive and flawless solution to the problem such a convenient legislative practice is unfortunately not so favorably viewed by the Parliament who erroneously regards it as an encroachment on its legislation prerogative. Under such a dilemma, the definitive adherence of Thailand to the Rome Statute of the International Criminal Court would, in all likelihood, not be forthcoming.

CONCLUSION

The establishment of the International Criminal Court is seen by many as an idealistic proposition, advocated by a group of nations attempting to impose their collective will on some selected nations where they could not do so individually. It attacks the sovereignty of the nations and substitutes its ill-defined and untested international corpus of law to the municipal law of a country. Moreover as two nations can never agree on a body of rules that reflect their genuine convictions on what is either just or moral, what pretends to be a body of international legal standards are in fact merely a compromise negotiated in an effort to implement an inflexible agenda of idealistic principles.

For many, a permanent international criminal court is not the ideal answer, being subject to few restrictions and too little oversight. Besides, it can not be held accountable for its decisions and therefore has an added possibility of being authoritarian and reckless. In their view, a nation should be left to address its own ills, and to do so by the values and principles under which it exists. There is no nation that would knowingly sanction crimes against humanity in the absence of their inability to do so.

If those having perpetrated their crimes in the name of the nationalism or a religion remain in power, an international criminal court will still have no means of compelling cooperation with their edicts. All that an international criminal court can realistically provide is a tailored ad hoc forum and, the resources a willing nation can utilize to purge their ills and allow national healing to take place. Neither the I .C.C. nor the ICTY in its present form can do that trick. It is noteworthy in this connection that, to date the world community has still failed to take effective actions to bring to justice those responsible for the atrocities in such places as Cambodia, Argentina, East Timor, Uganda, Iraq, el Salvador, the Philippines, Sudan, and several non-Muslim countries all over the World, such as the remaining Khmer Rouge leaders, the Abu Sayyaf leaders, Idi Amin, Saddam Hussein and Osama bin Laden, and so on and so forth.

With regard to the setback for the ICC, stemming from unethical legislative practices or flaws and lacunae in the legal systems of developing countries, that allow putschists, military junta and tyrants to elude prosecution and punishment for having committed or instigated gross violations of Human Rights through self-proclaimed amnesty, the most efficient and appropriate remedy for such shortfalls is to stipulate expressis verbis in the constitution of the country that "The law shall be of general application and shall not be intended to apply to any particular case or person". Such a stipulation will deprive the persons in power of the possibility to get away with their war crimes and serious breaches of Human Rights with impunity by means of an unethical or abusive use of amnesties(59).

One must not lose sight, however, of the fact that amnesties could, under certain circumstances, facilitate a national reconciliation and avert further bloodshed in a civil war or any internal armed conflicts short of war. The promise to grant an amnesty was in effect an approach, whereby Thailand could induce communist insurgents to lay down their arms and agree to be converted into constructive participants in the "Joint National Development Program" of the country(60). Besides it is hardly conceivable that any despots and military junta would peacefully step down from power without iron clad guarantee for their impunity for the war crimes or gross violation of human rights, which have or could have been committed under their instigation or command while they were still in office. Hence, it would be neither realistic nor pragmatic to expect those who are in power to be genuinely supportive of the insertion of such a stipulation in the Constitution of the country.

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(50) Hence, none of the members of the military junta in Thailand, who were responsible for the "Black May" atrocity perpetrated under their command in a civil upheaval, have ever faced a trial.
(51) Comprising the Director General of the Treaties and Legal Affairs Department of the Ministry of Foreign Affairs, who presides the Commission, the representatives of the Ministry of Defence, the Ministry of Interior, the Ministry of Justice, the Office of the Attorney General, the Office of the Juridical Council, the Office of the National Security Council, the Army, the Navy, the Air Force, the Office of the National Police, and of the Department of International Organizations of the Ministry of Foreign Affairs.
(52) Which is indispensable in the process of the conclusion and ratification of any international agreements, because the rules and regulations governing the official documentation require that all documents in foreign languages to be submitted to the Council of Ministers and the Parliament must always be accompanied by their translation in Thai.
(53) Cf. The proceedings of the seminar on "International Criminal Court and Thai Society: Impacts and Expectation", organized by the International Affairs Commission of the Senate in 2002, published by Forum-Asia, Humanitarian Law and Peace Studies Center of the Faculty of Law, Sukhothai Thammathirat University, p .108.
(54) Thailand signed the "Rome Statute of the International Criminal Court" on October 2nd, 2000.
(55) Which explains why Thailand has not yet ratified the Rome Statute.
(56) In compliance with Article 224 of the current Thai Constitution of B.E. 2540, because its ratification requires an enactment of an implementing legislation.
(57) The concerns in this regard for His Majesty the King repeatedly expressed at the afore-mentioned symposium organized by the National Congress of Law at ESC" were entirely groundless, because although under every Thai Constitution, His Majesty the King is the Supreme Commander of the Armed Forces of the country, such a title of His Majesty is in fact merely symbolic without any real commanding power or control over the Armed Forces of the country.
(58) Especially with regard to the obligations of all UN member countries under Chapter VII of the UN Charter to comply with orders of the Security Council for evidence or the surrender of indicted persons, where the situations are referred to the ICC by the Security Council, in which cases a noncompliance could be enforced by Security Council imposed embargoes, the freezing of assets of leaders and their supporters, and/or even by authorizing the use of force.
(59) This solution was proposed by the present author in the country paper that he presented at the Forum- Asia sponsored international seminar on November 27-28, 2003 under the topic of "Individual Responsibility for Serious International Crime and Criminal Legal System".
(60) According to die delegate of Cambodia to the same Forum- Asia sponsored international seminar on November 27-28, 2003, the Khmer Rouge also agreed to lay down their arms and disintegrated their armed forces on the basis of the promise of the Heng Samrin Administration that they would not be tried for the wrongs that they had previously committed, which was more or less tantamount to a de facto amnesty in the interest of the national reconciliation, failing which, the armed conflicts and bloodshed in Cambodia could continue to drag on and on for only God knows how long.

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