The creation of the International Criminal Court (ICC) has constituted a great demonstration of the unsuspected possibilities opened by the collaboration between the organizations of the global civil society and some few progressive governments1, as well as the highest step achieved by humankind towards universal justice. However, even with its 121 States Parties, its issued 20 warrants of arrest, its 15 cases and its seven ongoing investigations, ten years after its effective creation the ICC continues to show severe limitations in its aim to end impunity for crimes against humanity.
The most obvious of them derives from Article 13 of the Rome Statute that has established the Court, which states that only the citizens of the nations that have signed the Statute are subject to the ICC jurisdiction. It is obvious that – if not provided otherwise – this concession to national sovereignties could wreck the entire project of the Court. As obvious as the fact that this capacity of national states to decide whether or not to adhere to the rules of global justice has predictably led the most warlike and violent of them to not endorse the Treaty, keeping away from international law their political leaders and military officials.
The list of the nations that have not yet signed the Treaty (Rome Statute) is proof of the incompatibility between national sovereignties, on the one hand, and universal justice, human rights and the rule of law, on the other. It includes China, Cuba, Iraq, Iran, Israel, Libya, Pakistan, Syria, Russia and the United States, among others. Needless to say, these are exactly the countries that have been the protagonists of violations of human rights or the focus of recent international conflicts and civil wars. As a predictable result of this concession to national sovereignty, the ICC prosecution has so far opened 16 cases in 7 countries: Uganda, the Democratic Republic of the Congo, Sudan (Darfur), the Central African Republic, Kenya, Libya and Côte d’Ivoire2; meaning seven African nations over seven. The same official source informs that the ICC procurator “is currently conducting preliminary examinations in a number of situations including Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria”, meaning not a single first-world Western country among all of them.
Of course, crimes against humanity and massive violations of human rights are more frequent in Africa than in any other continent, and less usual in the first world than within the third one. Yet, the ICC was created to judge both crimes against humanity and war crimes, such as those committed by the United States (and their allies, in some cases) by invading Iraq, jailing people under inhumane conditions and without any guarantee of a fair trial in Guantanamo, and creating a vast international system of imprisonment and torture. Meaningfully, an initiative in favor of the investigation of war crimes and international aggression committed by the U.S.A. in Iraq, which had been promoted to the Court in 2006, was dismissed because “The available information suggests that a small number of murders and inhumane treatment of people has occurred. However, the crimes committed in Iraq by citizens of the states members of the ICC have now reached the gravity required to be judged”3.
Nonetheless, the latest news on the biased perspective adopted by the ICC was the UN Security Council, composed of three permanent members – the United States, Russia and China –, proposing and obtaining from the ICC the prosecution of Colonel Gaddafi4, while all the three countries continue to avoid to sign the Rome Statute in order to keep the immunity of their own officials and public servants. Beside the undoubted criminality of Gaddafi´s acts, what can the people of the third-world possibly think of the ICC when they saw the cruel Gaddafi’s assassination after he had been warranted to arrest by the ICC, with no further prosecution of his murderers? What can any just human being think when he observes that all the criminals against humanity seem to be African? What when first-world countries’ war crimes – such as starting the war against Iraq based on false allegations of possession of mass-destruction weapons – are ignored or dismissed?
For those who want to preserve the ICC as a fair instrument for the establishment of the international rule of law and global justice, it gets every day clearer that the current structure of the ICC conspires against these high objectives. A new structure – a 2.0 International Criminal Court – is urgently needed but how could it be created when three of the five big powers that command the UN Security Council are against any limitation of their own national sovereignties?
A first step in this direction, however, is simple to achieve: no matter if their own national states have signed or not the ICC Rome Statute, no matter if their states are part or not of the UN Security Council, the perpetrators of crimes against humanity and war crimes must be prosecuted and be judged guilty by the ICC. The fact that so far they cannot be punished should not be an obstacle for their moral and symbolic impeachment. Think, for instance, of the consequences of an ICC verdict of culpability against those who had decided the invasion of Iraq, or the use of Guantanamo as a prison, or the building of an international network of imprisonment and torture, etc. – in terms of their internal political credibility, and you will verify that the ICC is not that powerless as some pretend it to be.
In short: if the ICC prosecution against Gaddafi and Omar al-Bashir5 were feasible – as they effectively have been –, there are no good reasons in favor of keeping first-world public functionaries, commanders and troops outside the court jurisdiction if they are responsible of war crimes. The advantages for the credibility of the Court would be evident: the biased conviction of Africans only and the partisan judging of third-world tyrants only would be publicly charged to the true responsible ones: the national states and their pretension that national sovereignty is above human rights. The alternative to such a measure is continuing to devalue the ICC´s prestige, its degradation to just another “tribunal of the winners”, and the erosion of basic concepts such as human rights, international rule of law and global justice.
Inasmuch as these measures seem to be essential and urgent to prevent that the ICC´s current firstworldist bias leads to its failure, the ICC shift from its 1.0 to its 2.0 stage constitutes the most valuable objective for the Coalition for the International Criminal Court (CICC), which already includes 2.500 civil society organizations from 150 different countries devoted “to ensure that the Court is fair, effective and independent” and “make justice both visible and universal”6.
But let’s see further the political structure of this techno-economically globalised world. In all democratic countries, the creation of an equal justice for all was only possible when the development of courts and tribunals was complemented with the creation of representative and democratic political systems. There is no true justice-for-all where there is no democracy, meaning both in the countries and in the whole world. The ICC will be always blamed and in high danger of being discredited and discarded until the creation of representative forms of democracy at the global level. The Comments history of Democracy is clear: at the national level, as well as at the regional one, the creation of courts was immediately followed either by their failure or by the creation of parliaments. The establishment of a UN Parliamentary Assembly as an embryo of a World Parliament and the future replacement of the current Assembly of State Parties as the ICC’s governing body are, hence, the following necessary step (a 3.0 ICC) towards a universal egalitarian global justice.
1 The ICC was established after a successful campaign developed by the global coalition of NGOs: the Coalition for an International Criminal Court, which is the largest global association focused on the fight for global justice. Coordinated since 1995 by Bill Pace, executive secretary of the World Federalist Movement, it is made of 2,500 NGOs from 150 countries
2 According to the same ICC, see http://www.icc-cpi.int
3 ICC resolution, 10/17/06
4 “On 26 February 2011, the UN Security Council decided unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor. On 3 March 2011, the ICC Prosecutor announced his decision to open an investigation, which was assigned by the Presidency to Pre-Trial Chamber I. On 27 June 2011, Pre- Trial Chamber I issued three warrants of arrest respectively for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity allegedly committed across Libya from 15 until at least 28 February 2011, through the State apparatus and Security Forces. On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to his death” (from the ICC webpage)
5 Despite Sudan is not an ICC state-member, the previous ICC prosecutor, Dr. Luis Moreno Ocampo, asked the ICC judges a warrant for the Sudanese President Omar al-Bashir, alleging him to be guilty of war crimes and genocide in Darfur (Sudan)
6 See http://www.iccnow.org/?mod=coalition