The International Criminal Court is an instrument of power, not justice, writes Hassan Nafaa* Human societies either live in a "state of law", or what Hobbes used to call a "state of nature", where anything goes and the winner takes all. To live in a state of law you need an elected government, a parliament with oversight over the executive and a judiciary independent of both. In other words, you need a democracy. In the absence of democracy the government is selective in its implementation of laws, the judiciary is beholden to the government, and parliament is manipulated by special interests and even foreign powers. In short, you live in a "state of nature", where not everyone is equal before the law. What about the international community? Until recently experts in international law argued that the world started to move away from the "state of nature" and towards a "state of law" following World War II, when a sufficient number of countries agreed that a means of settling international disputes was needed that did not involve war. It had become glaringly obvious that international interests were so intertwined that giving up some sovereignty for the sake of peace and security was not a bad idea. Many international organisations were born to manage international relations and steer the world away from deadly conflicts. The trend started with the League of Nations then, after WW II, was picked up by the UN. In theory the UN had the seeds of an international global system, if not an international government. Many expected the International Court of Justice to develop into the world's ultimate legal authority. Some wanted the General Assembly to act as a world parliament, overseeing the Security Council. The international system, at least in theory, could function as a democracy. This is what many believed until the Cold War dashed their hopes. Abuse of the power of veto, by the Soviet Union then others, undermined the credibility of the Security Council. As a result the International Court of Justice was unable to maintain its authority. With the collapse of the Soviet Union things changed. The UN Security Council began to assert its power and a new organisation came into being: the International Criminal Court (ICC). But instead of helping upgrade international law the ICC became a tool for its destruction. The ICC cannot act fairly unless: (a) all countries ratify their statutes; (b) the Security Council is overhauled; and (c) the International Court of Justice is given a much wider mandate. As it turned out, the US and Israel didn't ratify the ICC statutes, the Security Council retains the political bias of the post-WW II dispensation, and the statutes of the International Court of Justice remain narrow. Theoretically, any UN member state can remain beyond ICC jurisdiction as long as it refrains from ratifying its statutes. Practically, and this is the good part, the Security Council can refer any crimes to the court, even if the country in question hasn't signed up. What this means in practice is that if a country is strong enough, or has friends in the right places, it can get away with anything. To get away with murder all you need is to be either a UN permanent member or a close friend of one. If that's not a recipe for international blackmail, I don't know what is. Let's say that Israel decides tomorrow to deport Palestinians from their homes, or starts killing Israeli Arabs. Far fetched, perhaps, but with Netanyahu in power nothing can be ruled out. What will the ICC do? Nothing. Because the US and Israel's other friends on the UN Security Council would never refer the case to the ICC. Sudan, however, is different. The Sudanese government may not be above abusing its own citizens. But what it is facing in Darfur is basically an insurgence that threatens to rip the country apart. While the Sudanese are grappling with this admittedly thorny situation, the ICC stepped in with a warrant to arrest the Sudanese president. Now how selective can justice be? The way I see it is that, instead of the ICC taking us away from the "state of nature" it is pushing us further into it. For the international community to have a credible legal mechanism a lot of today's global institutions will need to be reformed. The UN General Assembly should turn into an international legislative body with the power of political oversight over the UN Security Council. The Security Council should become more democratic. The International Court of Justice should acquire a larger mandate, even to the extent of overseeing the constitutionality of Security Council resolutions. Only then will the ICC be able to look us in the face and speak with authority on war crimes and other forms of abuse. Global justice is a good thing, but first we have to ensure that all members of the international community are equal before the law. * The writer is secretary-general of the Arab Thought Forum, Amman, Jordan.
