Calls for reform should include ICC

Some states worry that powerful nations on the UN Security Council will influence who faces arrest from the International Crminal Court [GALLO/GETTY]

Today we bear witness to critical events unfolding in the Middle East and North Africa. Seismic popular discontent and uprisings across these regions have challenged the old political order.

These tectonic events have stirred our collective imagination to look beyond the hopeless reality of the past and to rest our optimism in the belief that such historic currents have the potential to herald a new, more promising era.

As demands for reform and a break with the past – unchecked rule – become more prevalent and widespread, and power slowly gravitates towards the people, there is great hope and promise (though far from certain) that liberal democracies will take hold in these regions.

The dark record of past wars and continuing calamities has given rise to an evolution in socio-political consciousness; an awakening which calls for enhanced civil and political freedoms.

As people across the Middle East and the Arab world search for ways to enhance and safeguard their rights, and as their governments will increasingly look to institute reforms (one hopes) to respond to the people’s aspirations, this regional awakening ought to include joining the International Criminal Court (ICC).

Membership with the ICC would serve as a necessary measure and a useful tool to counter violations of human rights – whether committed by internal or external actors – through accountability, penalty and deterrence.

A record of war

The history of these regions, from the 20th century to the present, has been fraught with innumerable wars, carnage and human torment. From the Arab-Israeli military conflicts (1948-2008) and the devastating Lebanese civil war (1975-1990), to the three Persian Gulf wars, conflicts in the Middle East have crystallised with alarming severity and frequency.

A sampling of civilian casualties arising from conflicts that have beleaguered the region in the last sixty years will illustrate a dire situation – one that is in critical need of remedy.

Take, for instance, the destructive eight year Iran-Iraq war, which generated more than one million casualties, not to mention more than $500bn in economic damages on each side.

This blood-drenched rivalry witnessed trench warfare, the deployment of child-soldiers, the use of prohibited (chemical) weapons by the Iraqi army and a myriad of other violations of the laws and customs of war.

More recently, we have the invasion of Iraq in 2003, a violation of international law that caused chaos and resulted in widespread civilian suffering.

While estimates vary, it is widely believed that at least 100,000 Iraqi civilians died in the conflict. That number could be as high as one million. The 2003 invasion prompted an exodus of 4.5 million Iraqis, forcing them to flee their homes to escape the fighting.

Beyond atrocities triggered by inter-state military campaigns, many of the region’s citizens also have their basic human rights violated by their own states.

Human rights protection

Despite massive suffering, the people of the Middle East have seen no justice to remedy human rights abuses. Without adequate judicial recourse, the impact of this culture of impunity has been to incite further division, conflict and instability.

This gloomy picture is further aggravated by the absence of a regional judicial human rights body or any other viable mechanism to address grave human rights deficits in the region. In this legal vacuum, impunity reigns supreme.

What measures can be employed to protect the region from the repeated spectacle of unchecked foreign aggression and gross human rights violations?

Joining the ICC is one such measure. States from the Middle East can become State Parties of the ICC by ratifying the Rome Statute, the ICC’s founding treaty. They can gain several advantages by ratifying the statute.  

First, they would benefit strategically from the potential deterrence dividend that their ratification would provide against external aggression, thereby reducing conflicts and costs of war in both human and financial terms. 

Second, ratification will enable Middle Eastern and Arab states access to international judicial recourse at the ICC in the event that grave crimes under the court’s jurisdiction are committed in their territory, whether by internal or foreign perpetrators.

Sovereignty questions

Accession to the Rome Statute would contribute to fostering a culture of human rights protection. Membership with the ICC is a constructive step towards the protection and promotion of human rights across the Middle East and the Arab world. 

Ratification of any international treaty – including the Rome Statute – is a question of sovereign prerogative. Geopolitical realities, along with domestic legal and political landscapes, are important considerations. However, the interests and well-being of citizenry must be central to this sovereign assessment.
 
The major obstacles preventing ratification by Middle Eastern governments include a lack of in depth understanding of the court’s legal regime and its inner-workings. 

Commonly held suspicions about its independence, including fears that the UN Security Council may exercise undue influence over ICC proceedings and decision making, also leave some governments sceptical. In the interest of protecting human rights, these perception hurdles must be overcome.

The ICC has been in operation since 2002. It is the first permanent international criminal jurisdiction established in history.

To date, 114 countries have ratified the Rome Statute of the ICC. Of this number, the Hashemite Kingdom of Jordan is the only state from the Middle East and North Africa that has become a State Party to the court. 

Regional interest

In the past few years, however, there has been a growing interest in the court in these regions, including amongst state officials who are increasingly looking to the ICC inquisitively.

Recently, promising developments have emerged in Tunisia, where a post-Ben Ali interim government, in addition to exploring measures to abolish the death penalty, is giving serious consideration to ICC ratification.

By joining the ICC, states from the Middle East will become partners in the development of this important international court. Equally importantly, through their membership and participation they can help keep the balance of international criminal justice neutral and universally applied, irrespective of the nationality of the author of egregious international crimes.

The continued failure of Middle Eastern states to ratify the Rome Statute will leave the region exposed and their people vulnerable. No longer should the people of the region, of all creeds and ethnicities, be subjected to human rights violations whether the culprit is domestic or foreign.

To borrow from the words of the late Whitney R. Harris, the former Nuremberg prosecutor, the “tyrant must be forced to end his tyranny. The aggressor must be punished for his aggressions. And law, not force, must rule the world. Man’s destiny lies in the hands of man.”

Through ICC ratification, we can ensure that during war and autocratic rule, the laws will no longer be silent.

Sam Sasan Shoamanesh is the Head of the Counsel Assistance Unit of the International Criminal Court (ICC).

This piece is a slightly modified version of the original, first published in the Oxford Transitional Justice Research Working Paper Series.

The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court or Al Jazeera’s editorial policy.