A diez años de la creación de la Corte Penal Internacional, les acerco este balance de luces y sombras, y con algunas propuestas para el futuro inmediato (en inglés, cortesía de The Federalist Debate).
FAI
International Criminal Court
2.0
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
governments[1],
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 the article 13 of the Rome Statute that has established
the Court, which states that only the citizens of the nations that had signed the
Statute are subjected to the ICC jurisdiction. It is obvious that -if not
provided- this concession to national sovereignties would have wrecked the
entire project of the Court. As obvious as the fact that this capacity of
national states to decide whether or not 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)
expresses of the incompatibility between national sovereignties, on one hand, and
universal justice, human rights and 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 to 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’Ivoire[2];
meaning seven African nations among seven. The some 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 none 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
at the first world than within the third one. Yet, the ICC was created both to
judge 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 by 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 by citizens of the states-members of the ICC in Iraq have
now reached the gravity required to be judged" (ICC resolution, 10/17/06).
Nonetheless,
latest news on the biased perspective adopted by the ICC was the UN Security
Council composed by three permanent members –the United States, Russia and
China- proposing and obtaining from the ICC the prosecution of Colonel Gaddafi[3],
while all the three countries continue to avoid to sign the Rome Statute in
order to keep the immunity of its own officials and public servants. Beside the
undoubted criminality of Gaddafi´s acts, what can the people of the third-world
could possibly think on 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 its murderers? What can any just human being think about by observing that all
the criminals against humanity seem to be African? What when first-world countries’
war crimes –such as starting 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 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 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, crimes against humanity and
war crimes must be prosecuted and their committers be judged guilty by the ICC.
The fact that insofar they cannot be punished should not be an obstacle for
their moral and symbolic impeachment. You think, for instance, on 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.
To
be short: if the ICC prosecution to Gadaffi and Omar al-Bashir[4]
were feasible –as they effectively were- there are no good reasons in favor of
keeping first-world public functionaries, commanders and troops out from the
court if they are responsible of war crimes. The advantages for the credibility
of the Court would be evident: the biased conviction of only Africans and the
partisan judging of third-world tyrants would be publically assigned to the responsible
ones: national states and their pretension that national sovereignty is over
human rights. The alternative to such a measure is continuing to devaluate the ICC´s
prestige, its degradation to another “tribunal of the winners” and the erosion of
basic concepts such as human rights, international rule of law and global
justice.
As
well as these measures seem to be essential and urgent to prevent that the
ICC´s current first-worldist bias lead 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”[5].
But
let’s see further on 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 by the creation of representative and democratic political
systems. There is no truly justice-for-all where there is no democracy, meaning
both countries and the whole world. The ICC will be always blamed and in high danger
of being disaccredited and discarded until the creation of representative forms
of democracy at the global level.
The
history of Democracy is clear: at the national level, as well as at the
regional one, the creation of courts was immediately followed by their failure
or by the creation of parliaments. The establishment of a UN Parliamentary
Assembly such 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.
Fernando A. Iglesias
Democracia Global- Argentina vicepresident
Cattedra Altiero Spinelli director
World Federalist Movement council
chairman
[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, is made to
2,500 NGOs from 150 countries.
[2]According to the same ICC. See http://www.icc-cpi.int
[3] “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).
[4] 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).
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