Created in Rome (1998), the International Criminal Court (ICC), aims at ending impunity by bringing all the perpetrators of serious crimes to justice. The ICC has to investigate and accordingly prosecute those involved in war crimes, crimes against humanity, genocide and crimes of aggression committed on the territories of its member states or by their nationals, or whenever asked by the UN Security Council. The permanent court was set up following multilateral negotiations with the signature of Rome Statute and thus is different from its predecessor tribunals which were set up on ad hoc basis.
The ICC sits at the intersection of war and peace, politics and law and thus would attract enemies as articulated by professor of Law at the University of California, David Kaye, in his Foreign Affairs (2011) piece “Who is Afraid of ICC?” The writer is prompted by the policy of the U.S. administration regarding the above court. The U.S. government has been opposing the forum since the beginning in 1998. Almost after four years of struggle to obtain the sixtieth ratification of its Charter (Rome Statute), the court has become operational since July, 2002.
In the opinion of Fatou Bensouda, current prosecutor of the ICC, “we have seen an unprecedented integration between peace and security and international justice”.
Encouragingly, the initial resistance to the ICC by the U.S. administration has been declining in the recent past. The American support of the UN Security Council’s referral of the Libyan situation to the ICC, which was demonstrated in its support of the resolution 1973 of the UN Security Council (26 February, 2011), which referred then Libyan leader Muammar el-Qaddafi and his close associates to the ICC. Despite this, it has not been cooperative to assist the ICC investigation of the Libyan officials of the ousted regime in the post-intervention era.
By not signing and not ratifying the court’s charter, America, China and Russia (the only three permanent members of the UN Security Council to do so) have shown their reluctance to abide by the norms of global accountability. They have been joined by some emerging economies, including India and Indonesia. Surprisingly, in the year 2003, John Negroponte, then U.S. envoy to the UN, had issued a threatening call to the member states that his country would shut down UN Peacekeeping operations in different regions, if the UN Security Council did not immunize the American peacekeepers from prosecution by the international criminal court. The subsequent UN resolutions were then drafted taking into account this U.S. concern.
During the administration of George W. Bush the majority of small and weaker nations in Asia and Africa had become the victims of American arms-twisting and were coerced to sign pacts with its government that has prevented them from surrendering the U.S. citizens to the ICC. This illustrates the bullying tactics of a world power, which paradoxically calls itself the champion of human rights.
China, Russia and many others from South Asia including India, and Nepal have not joined the ICC purportedly to protect their nationals from ICC prosecutions. But a country with increasing aid dependency characterised by crumbling economy and growing political stability like Nepal should realize that it will not be treated internationally at par with the veto-wielding world powers, should the letters’ self interests be jeopardized.
What is alarming for us is that last month former Prime Minister Babu Ram Bhattarai unhesitatingly stated that he would have been produced before the international criminal court, had he not been in his post.
Nepal’s failure to establish a credible transitional justice mechanism to investigate the cases of serious human rights violation has also reignited the debate whether we strive for peace at all costs. Last Monday the apex court of the country stayed the move to promulgate ordinance relating to Truth and Reconciliation Commission (TRC), which indicates the lack of determination on the part of the government to punish the perpetrators of serious crimes, let alone those which come under the jurisdiction of the ICC.
In connection with the latest Supreme Court stay order concerning the TRC ordinance, the plaintiffs have demanded that the court should order the defendants (Chairman of the Interim Election Government, Office of the Prime Minister, Minister for Law and the Minister for Peace and Reconstruction) to formulate laws on transitional justice as per the previous court order until war crimes and crimes against humanity are not declared criminal offences and provision for punishment are not put in place.
Although the ICC ignores the crimes committed before its creation, its non-membership does not guarantees that no cases of genocide, or crimes against humanity, or war crimes or crime of aggression would be filed against the nationals of that country. The example is the president of The Sudan, Omar al-Bashir, whose case was referred by the UN Security Council to the ICC even though his country has not joined the court. Nepal can’t afford to have the luxury of incumbent and prospective permanent members of the UN Security Council, in case the future resolutions refer her nationals to the court.
While speaking on a recent conference “International Justice and Diplomacy”, the ICC’s prosecutor Fatou Bensouda, as quoted by the New York Times, has remarked that the debate about peace versus justice or peace over justice are two sides of the same coin”. There is hardly any forceful logic to counter her when she adds that the road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.
As controversy prevails whether there can be an election conducted in a free and fair manner under the present circumstances with a significant political force feeling excluded from the political mainstream reflected in ongoing obstructions to voter registration process, it is imperative that serious consideration be given to convince the disgruntled groups that their legitimate demands are met. No less urgent is to enact laws that declare crimes against humanity, war crimes, genocide and crime of aggression as criminal offences.
Nepal should treat the ICC as a global forum for justice. Peace and justice complement each other and thus are not mutually exclusive.