International justice, the key to world order, can only be attained by reform of existing institutions -- principally the UN Security Council, writes Hassan Nafaa* Justice is indisputably a universal humanitarian value. Throughout history, people around the world have fought to realise this ideal for their societies. Therefore, no people, culture or civilisation has the right to claim a monopoly on this value and to pretend that it is more representative of this ideal or keener to protect it. However, we must simultaneously draw a distinction between justice as a value and justice as a system. The former belongs to the world of absolutes, the latter to the world of relativity. Since a system capable of realising absolute justice for all those subject to it is, if anything, the property of the angels of the kingdom of heaven and out of the reach of the peoples of the earth, mankind's efforts have naturally focussed on the search for the type of system that would best translate the value of justice from the realm of the ideal into the realm of reality and, accordingly, to put into place the mechanism that would guarantee, to the greatest possible extent, equal rights for all. The lessons of the history of human experience inform us that the system most capable of delivering on the promise of justice offers three essential sets of guarantees. The first pertains to the nature of the authority empowered to promulgate laws. Clearly for this to be legitimate it must express the will of all subject to it, for otherwise the very foundation of justice will be skewed. Only a legislative authority produced by free and fair elections is capable of promulgating laws that realise the greatest possible degree of fairness between the interests of rival social forces and that are therefore more expressive of "national interests" than they are of the interests of any particular group or class. A legislative authority brought into being by processes of repression and coercion, by contrast, is inherently inclined to issue laws that are biased in favour of the ruling elite and the social classes associated with it, to the detriment of other social classes and, sometimes, to the detriment of public welfare. The second set of guarantees is related to the nature of the authority charged with putting laws promulgated by the legislative authority into effect. The executive authority of government is the power that must possess a monopoly on the means of force necessary to implement and uphold the law and the rulings of the judiciary. As such, it too must not only have a basis of legitimacy but also be subject to the principles of and mechanisms for accountability and transparency in the management of public affairs. In the absence of such guarantees, one can never be certain whether the government is applying the law with uniform fairness and impartiality to all segments of society without discrimination. The third set of guarantees pertains to the authority that embodies the law, interprets its provisions and pronounces rulings accordingly. As the authority empowered to arbitrate disputes that arise between individual members of society, between individuals and social institutions, or between various institutions themselves, the judiciary must possess the highest possible degree of integrity and impartiality if it is to issue rulings that conform to the text and spirit of the law. Only a judiciary that is fully independent from both the legislative and executive authorities can possess such traits. From the forgoing one can state without risk of exaggeration that the government that consists of elected executive and legislative authorities, that provides for the separation of powers and a system of checks and balances between the powers, and that exercises its duties within a framework of transparency and accountability is the only type of government that can produce a judicial system capable of realising "justice". Fortunately, the world today has several models of democratic governments that provide their citizens with an autonomous and just (in the relative sense, of course) judicial system. Nevertheless, we must be clear about the fact that what might be achievable at the national level may not be necessarily achievable at the international level. At the international level there are no rulers and ruled bound by a social contract that may be subject to revision in accordance with certain agreed upon procedures. Rather, there are "sovereign" nations each of which seeks to realise what it perceives to be its interests using what it regards as the most appropriate means, which may include recourse to force. Since the rise of the modern nation state in Europe in the mid-17th century there have been numerous and valiant attempts to order international relations on the basis of the force of law instead of the law of force. Unfortunately, mankind has so far failed to achieve a significant breakthrough in this regard. Perhaps this is because of the major setbacks that have sometimes forced us back to square one, the most recent of these being the behaviour of the US administration following the rise to power of the radical neoconservative right under President Bush. This is why a dependable and trustworthy international judiciary, whether in its civil branch, as represented by the International Court of Justice (ICJ), or in its criminal branch, as represented by the International Criminal Court (ICC), is essential, but also a myth. As for the institutions that pretend to stand for a just international judiciary, these are little more than instruments that can be easily wielded by the more powerful nations to promote ends and interests, among which international justice does not necessarily figure. After all, in the absence of a real legislative authority (a parliament) and a real executive authority (a government), how can the international community have a proper judiciary? Who makes the laws it is supposed to embody and interpret? Who is supposed to enforce them? On what basis does this judiciary derive its autonomy, and from whom? It has been argued that the UN General Assembly is an embryonic international parliament, since all nations of the world are represented in it equally, and that the UN Security Council is an embryonic form of executive, in that it has the powers and jurisdiction to assume, on occasion, the role of an international police in order to prevent unrest and pursue those who threaten peace. Accordingly, they maintain, the ICJ is an embryonic form of an international civil judiciary and there is nothing to prevent the ICC from being an embryonic criminal court system, in view of the Security Council's power to refer certain types of criminal cases to it. This argument, however, is implicitly based on the premise that the institutional structure of the international order, as it currently stands, has an autonomous ability to evolve. Of this there is no evidence, especially in light of Washington's current global imperial aspirations in the pursuit of which it has sought to freeze the institutional development of the international order and take advantage of its existing institutions. Furthermore, the efficacy of international law is founded primarily on the notion of acceptance. Its provisions are binding only in so far as they are approved by member nations and ratified by their parliaments. This applies as well to such international institutions as the ICJ and ICC that are the product of international conventions that are binding only upon signatory states. In fact, because many countries have often been reluctant to become party to international organisations, especially at the outset, such organisations have been generally born weak. The Security Council is a noticeable exception, since it would not be able to perform its function of safeguarding international peace and security unless it had broad and extensive powers and jurisdiction even over non-member nations. With respect to the international judicial system -- the subject of this article -- the Security Council has the power to refer to the ICJ disputes that could threaten international peace and stability if it feels that this may help it contain or remedy such threats. The statute establishing the ICC, in turn, adds weight to this possibility, as it grants the Security Council the right to refer to the court cases involving crimes that fall under its jurisdiction. However, while the intent of this provision may have been to remedy certain structural shortcomings in the institutions of the international order, in my opinion it has had the opposite effect. Indeed, any student of the relationship between the Security Council and the ICJ can readily observe that the former has done nothing to strengthen and develop the international judicial system. To the contrary, it has worked to weaken and undermine it. For one, except for within the narrowest bounds, the Security Council never availed itself of its power to refer certain cases to the ICJ. If it had exercised this authority more frequently and conscientiously it would have contributed effectively to the development of international law and the creation of a solid foundation for resolving international conflicts. In addition, when the Security Council considered disputes that it should have referred to the ICJ, such as the dispute between the US and Libya over handing over the suspects in the Lockerbie plane crash to the US, it not only allowed political considerations to prevail over legal ones, but it sidelined the ICJ from cases that fell squarely within its realm of jurisdiction. Conversely, when the ICJ, in response to a request from the General Assembly, issued its famous ruling on the illegality of the apartheid wall that Israel is constructing in the occupied West Bank, the Security Council did nothing to compel Israel to abide by this ruling. The Security Council's inaction on this and other occasions in which Israel has flagrantly violated international law and conventions has only encouraged Israel in its illegal and immoral behaviour and, simultaneously, undermined the law and conventions that the Security Council is presumably there to protect. There are many other instances -- too numerous to list here -- that lead us to believe that when the Security Council referred the case of human rights violations in Darfur to the ICC it was acting less in the interest of strengthening the international judicial order than it was in the service of political considerations. I should stress here that I am not opposed to prosecuting President Omar Al-Bashir or any other official responsible for perpetrating genocide. My point, however, is that if they are to be tried it should be before a real international court and not a political tribunal. I should also stress that I have no objection, in principle, to the body responsible for safeguarding international peace and security having the authority to refer such cases to the ICC. I merely hold that the Security Council must represent the will of the international community and be prepared to apply international law uniformly upon all. This requires, first, reconstituting the Security Council in a manner that reflects the new balances in the international order, as opposed to the alliance of the victors in World War II; second, introducing regulations on the use of the veto (if not abolishing the veto altogether); and, third, subjecting Security Council resolutions to the political supervision of the General Assembly and the legal supervision of the ICJ in order to ensure their constitutionality. * The writer is secretary-general of the Arab Thought Forum, Amman, Jordan.
