“Genocide”, “war crimes”, “crimes against humanity”. All of these words have been invoked to describe recent events in the ever-tumultuous Arab world where popular movements have resulted in mass protests and the toppling of governments. This marks a dramatic shift for a region that has rarely described events through the rhetoric of justice. It has been rare that these words – and their connection to international criminal law – have been uttered in Arab states, at least when it comes to describing, well, Arab states.
To date, the vast majority of Middle Eastern and North African states have only publicly thrown their support behind the cause of international criminal law (ICL) on an ad hoc and political basis. In practice, this has meant that when Israel was the ‘target’ of criminal law investigations or reports such as the Goldstone Report and investigations into the Gaza Flotilla attack, these states were often the most vociferous proponents of justice. However, when it came to long-term commitments to international justice, very few Middle Eastern and Arab states participated. While, as Steven Roach notes, Arab states played a “largely positive (albeit controversial)” role in the creation of the ICC, to date, amongst them, only Jordan is a member state.
The Arab League has been among the most vocal critics of the arrest warrant against Sudanese President Omar al-Bashir and has openly advocated that Bashir’s warrant be deferred. Over the past few months, justice has been debated in the region as a result of the investigations by the Special Tribunal for Lebanon, with some believing that the Tribunal’s investigations into the 2005 deaths of former Lebanese PM Rafik Hariri and 20 others could destabilize Lebanon and threaten regional peace. Now, however, with unrest spreading like wildfire and so many around the globe watching in solidarity as citizens of Tunisia, Egypt, Bahrain and Libya attempt to topple their autocratic regimes, something has changed. The language of international criminal law, and human rights more broadly, has taken center stage where before it had been relegated to political opportunism.
Given recent events, it is unsurprising to hear comments, like those of Navi Pillay, the UN high commissioner for human rights, who warned that violence in Libya against civilians “amount to crimes against humanity” and called for an international investigation in possible human rights violations. What was surprising was the defections and declarations of Gaddafi’s own government officials. Libyan diplomats at the UN defected and accused Gaddafi of genocide. While it’s more likely that Gaddafi is responsible for crimes against humanity than genocide, the use of the term illustrates the growing application of legal concepts to describe ongoing events.
Libya’s deputy permanent representative to UN, Ibrahim O. Dabbashi, further exclaimed: “We are sure that what is going on now in Libya is crimes against humanity and crimes of war.” He then did something that was unthinkable just weeks ago. Dabbashi said that he believed the International Criminal Court should investigate Gaddafi for crimes against humanity and war crimes. Luis Moreno-Ocampo, the Prosecutor of the ICC has responded that “[t]he decision to do justice in Libya should be taken by the Libyan people” and that either Libya would need to become a state party to the Rome Statute or the situation would have to be referred from the UN Security Council in order for the ICC to investigate. Amnesty International has suggested this could be an appropriate course of action. Regardless, for proponents of international justice, even the suggestion of joining the ICC indicates a sweeping change in regional attitudes towards international law. And, again, rather than external actors, it is the citizens of these states, indeed government officials of these states, employing the rhetoric of international criminal law.
Will Libya join the ICC? It is too early to tell, especially given that Gaddafi, at least for the time being, remains in power. Perhaps, in due course, the country will draw lessons from Tunisia. The vigour in support of human rights in Tunisia has been unprecedented. Not only has the transitional government, which took power after President Zine el-Abidine Ben Ali was ousted, issued an arrest warrant for Ben Ali (although notably not for international crimes), repealed the death penalty, and declared that it would ratify the International Convention for the Protection of All Persons from Enforced Disappearance and the two optional protocols to the International Covenant on Civil and Political Rights; it has declared that it would ratify the Rome Statute of the ICC. If it follows through, it will be the first north African state to ratify the Statute.
While David Rieff recently argued, unconvincingly in my view, against the pursuit of justice in Egypt and Tunisia, he does shed light on the fascinating dynamic that the drive towards justice has been instigated not by normative changes in favour of accountability nor international obligations requiring prosecutions. It has been driven by local demands for justice.
“In the past, changes in international human rights norms were seen as leading, however slowly and painfully, to trials and other practical steps to reform the abusive practices of the past. But the process seems to have been reversed in the Tunisian case: The populist desire to bring Ben Ali and the Trabelsis to justice has led authorities to embrace the broad norms associated with global human rights. And, again, it is certainly possible that a similar dynamic will take hold in Egypt.”
The point here is not to argue about whether or not Egypt, Tunisia and Libya should pursue accountability against their embattled leaders. Others have done so. Importantly, it will be Egypt, Tunisia and Libya who decide how to move forward and to what extent they will embrace international criminal law. Yet, even in a purely discursive sense, we are witnessing a dramatic shift in attitudes towards international criminal law amongst Arab states.
Of course, proponents of international criminal law shouldn’t get ahead of themselves. It is not entirely evident how Arab approaches to law and Islamic ethics can be reconciled with international criminal justice. Indeed, this helps explain the lack of inclusion of Arab states in the ICC. Further, it seems at least somewhat worrisome that invoking the rhetoric of international criminal justice is only occurring against leaders in extremely weak and volatile positions. Where were the voices advocating international justice and ratification of the Rome Statute just weeks ago? Critics of ICL often argue that international law is a tool of the powerful to be used against the weak, and the strongest powers, particularly the US, will never be prosecuted. Adam Branch, for example, has argued that the ICC’s focus on Africa to date:
“has been a function of international power relations which make Africa the only region weak enough so that Western intervention and experimentation can take place there without accountability.”
The focus on accountability in this context has been domestically driven against actors in vulnerable political positions, seemingly reinforcing the idea that only weak leaders can be brought to account for past crimes.
Nevertheless, these events enrich the debates about conflict and justice as well as the pursuit of justice in conflict. While often neglected, the role of Arab states in international criminal justice is vital. If there is hope that the Middle East and Arab states can engage effectively and productively in addressing the challenges of international criminal justice, these states will have to engage because they deem justice an important international cause and goal, and not because the rest of the world tells them it is. This seems to be precisely what is happening.