IJCentral: International Justice Central

Hariri’s Assassination and the Ayyash et al. case

Last week marked the seven-year anniversary of the assassination of Lebanon’s former Prime Minister, Rafik al Hariri, whose alleged killers will be tried in absentia at the Special Tribunal for Lebanon. On February 14, 2005, Hariri was killed along with 22 others by a bomb blast in the center of Beirut. Because the Lebanese government was unable to reach a national consensus on how to hold the perpetrators accountable, an external rather than domestic tribunal was deemed the best means to ensure a fair trial. The Special Tribunal for Lebanon (STL) was established following a request by the Lebanese government to the U.N. on December 13, 2005.

Albeit a transitional institution established through international procedures such as U.N. Resolution 1757, the tribunal is a hybrid court in that it applies national law and provisions of the Lebanese Criminal Code. This is significant in that it allows for in absentia trials for the four accused members of Hezbollah: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra, for whom a defense council of eight lawyers was assigned. By fulfilling its primary mandate of holding trials for the accused, the STL, with the cooperation of the Lebanese government, is meant to promote accountability and take steps toward building a peaceful society based on the rule of law. The STL has been entrusted with fair trial, but what are the prospects for fairness in this seemingly unusual case reliant on the cooperation of a politically divided Lebanon?

Trials in absentia

In absentia trials occur without the accused being physically present and are deemed fair according to Lebanese law. This procedure, seeming at first unfair for the defense, is argued to also put the prosecution at a disadvantage as his case often relies on testimony by the defendant himself. In absentia hearings are allowed by the STL’s statute if the accused has waived his right to be present, has not been handed over by the state, has absconded, or cannot be found. On February 1st, the STL Trial Chamber had reached a conclusion that “each of the four accused has absconded”. Before reaching this decision, the STL Trial Chamber affirms that it had consistently requested assistance from the Lebanese authorities to do more to locate and arrest the accused.

The precedent of in absentia trials dates back to Nuremberg, when Hitler’s secretary, Martin Bormann, was tried, convicted, and sentenced to death in his absence. Trials in absentia are also allowed by the European Court of Human Rights, and well established in the former Yugoslavia. Seen as an alternative to the prolonged and sometimes endless pursuit of war criminals which often does not bring victims due justice, in absentia trials might be an efficient and effective means of enforcing human rights.

Possible Outcomes of the in absentia Trials

Thus far, there is no telling how the STL trials will proceed past this decision. Whether or not the tribunal has come short of its purpose can probably be determined based on the possibilities of seeking punitive measures for the indictees if found guilty. Lebanon has an ongoing obligation to search for, detain and transfer the accused. If the accused are found in the course of the proceedings in absentia or if they choose to participate in the process, they may be retried in their presence. After the Trial Chamber delivers its sentence, generally speaking, the accused can accept the conviction, seek a re-trial, or appeal the conviction.

As the in absentia trials now stand, labeling the perpetrators as criminals would present a symbolic victory for the victims, as well as a measure of fighting impunity. But it is surely not a way of fully realizing the potential of the STL or allowing the victims to see justice play out in front of their eyes. At the same time, however, the STL lacks a police force as do all other international tribunals, and so a failure to arrest the accused would not attest to its own shortcomings, but to that of the state holding the accused. Can the STL effectively punish the perpetrators in the midst of Lebanon’s divided politics?

International Power Struggle, Hybrid Court and Internal Division

The STL is a court of international character that reflects international power struggles as well. The U.S.’s founding support for the tribunal at the U.N. Security Council has been seen as a political motivation to undermine Hezbollah’s upper hand in Lebanon following Israel’s 2006 war in Lebanon. Although the tribunal was founded on an agreement between the Lebanese Republic and the U.N., this agreement was not ratified by the Lebanese Parliament, as members of the Council of Ministers withdrew and formed an opposition. 

Nonetheless, the viability of this hybrid court has been sustained by Lebanon’s contributions to the STL budget, which it shares with U.N. volunteer states. Spilling in an annual payment of about $30 million, the Lebanese government has shown its commitment for justice and the rule of law. But the in absentia proceedings may be falling short of realizing the STL’s full potential and of strengthening the rule of law in Lebanon. The court, while not a direct political tool, was seen as having the potential for shifting domestic Lebanese politics away from Hezbollah’s influence.

The positive effects that the court might bring to calming civil and political tensions in Lebanon are difficult to determine, involving issues well beyond seeking a fair trial for the victims of the 2005 attack. The court’s decision to try the indictees in absentia comes amidst a regional political struggle of international significance. Should the court hold the four indicted members of Hezbollah accountable, this step toward enforcing the rule of law in Lebanon might be undermined by the ongoing power struggle posed by international players in the region, namely, the U.S. and its allies, and the Syrian and Iranian-backed Hezbollah. The failure of the Lebanese government to bring the accused to trial shows the internal political tensions between pro-Western and Hezbollah-led groups that may just be beyond Lebanon’s grasp. How this international struggle will be played out in Lebanese domestic politics is unpredictable, as the failed Western efforts to weaken the Syrian regime’s steadfast authoritarian grip have shown.

The STL was externally established in the Hague due to the factious nature of Lebanon, but it is important to note that past the in absentia trials, the perpetrators can only be fully brought to justice with the cooperation of the Lebanese government, even though the court bypassed Lebanon’s constitutional procedure. When he was alive, Prime Minister Rafik al Hariri’s domestic policy indicated his initiative toward overcoming years of Lebanese civil war through a reconstruction process. It would be truly self-defeating, therefore, to see the STL, which was conceived as a way of seeking retribution for his assassination, plunge the country into a deeper cycle of civil strife. Thus, one can only hope that whatever follows from the in absentia trials, it will not further divide Lebanon.

For more on the STL, please visit:
http://www.un.org/apps/news/infocus/lebanon/tribunal/timeline.shtml
http://www.stl-tsl.org/en/about-the-stl/timeline-of-events
http://www.stl-tsl.org/en/ask-the-tribunal

It’s time, once again, for a mind bending IJCentral quiz!

By Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco*

There are currently 120 States Parties to the Rome Statute of the ICC but this number will increase to 121 in a few months. This Thursday, January 26, Guatemalan Parliament approved the ratification of the treaty. With this decision, Guatemala will join 15 other Latin American countries to be part of the ICC, pending similar efforts by Cuba, El Salvador and Nicaragua.

This vote was welcomed by the civil society, which has been working towards the signature and ratification of the Rome Statute for more than 10 years.

Ratification is a welcoming effort towards the future

As written before for IJCentral, Guatemala is a Latin American country shattered by violence and genocide resulting in the death of 200,000 people and victimizing an entire nation between 1960 and 1996. The report of the Guatemalan Truth Commission (Comisión para el Esclarecimiento Histórico), concluded that government forces under the de facto presidency of General Efrain Rios Montt perpetrated more than 600 massacres, homicides, forced disappearances, and other heinous crimes, particularly against rural and indigenous communities. A quarter of a century later, the country still carries the scars of a violent past with little accountability for those responsible for systematic human right violations.

But things are changing. In an effort towards justice, in August 2011, a local tribunal in Guatemala City convicted four former soldiers from an elite unit of the Armed Forces to 6,060 years each for the massacre of Las Dos Erres, where government forces assassinated 200 people, including women and children. This has been seen as an important advance in the process of the country’s recovery and set an important precedent for justice in Guatemala.

It should be noted that despite the lack of comprehensive legislation on international criminal law and human rights in the country, many of its core principles have been already binding on the state through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. The Rome Statute and several rulings by Ad-hoc tribunals (e.g. the International Criminal Tribunals for the Former Yugoslavia and Rwanda) have been used as interpretative tools for human rights organizations to claim justice before national and foreign tribunals. The most notorious case is the Spanish Audiencia Nacional, which has been trying cases on Guatemala regarding genocide, under universal jurisdiction.

What delayed the accesssion?

In a similar way to the cases of El Salvador and Nicaragua, the delay in the ratification of the Rome Statute had political, rather than legal reasons. In these cases, the argument was the fear that the ICC could investigate crimes against humanity perpetrated during the internal armed conflicts, namely enforced disappearances and torture.

In the case of Guatemala, the Constitutional Court rendered a favorable opinion in 2002 whereby no constitutional amendment is needed in order to ratify the ICC.  Nonetheless, Congress was historically opposed to ratification. Last week, upon entering into office and in his inaugural speech, President Pérez Molina, a former military General, referred to the International Criminal Court and said his administration “was willing”to become party to the Rome Statute.

In this context Congress swiftly included this issue in the agenda, adopting by 129 favorable votes, this Thursday, Decree No. 3-2012, approving the ratification of the Rome Statute. Now, the President must sign and publish the Decree for its final enactment. This is a simple procedural rule that should take place in the following days, considering that the decision to ratify the treaty came directly from the Executive Branch.

At the same time, human rights activists celebrated the fact that former President Rios Montt appeared for the first time in a Guatemalan court, where he will be prosecuted for counts of genocide and crimes against humanity. General Efrain Rios Montt has since been placed under house arrest and the judge announced that there is sufficient evidence for him to stand trial in Guatemala. This is a mighty step towards justice, and a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

ICC for the Future

When a country joins the ICC it does not exclude any other means of justice. Guatemalan and other international organizations should continue to advocate for justice for victims of atrocity crimes and genocide committed in Guatemala.

The ICC is a Court of last resort and states that become parties to the Rome Statute accept that if they are unable or unwilling to prosecute the grave crimes contained in the Statute the ICC shall apply its jurisdiction to bring those criminals to justice.

The human rights violations perpetrated for 36 years must be addressed by the Guatemalan state or by tribunals that have jurisdiction.

Guatemala’s ratification of the treaty will contribute to strengthening its judicial system and rule of law throughout the country.

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* Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa, Legal Adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

10 years on and the ICC is yet to find its place in the world

By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco

2012 marks the tenth anniversary of the entry into force of the Rome Statute; it is an appropriate time to make a critical, yet constructive, balance of the most important international organization created since the United Nations. Needless to say, when the Rome Statute was adopted on July 17, 1998 followed by its swift entry into force on July 1, 2002, expectations were high. But it would prove impossible for a nascent and exceptional International Criminal Court (ICC) to meet the demands of human rights violations around the globe.

A decade in a nutshell

Almost 10 years after its entry into force, muchof that enthusiasm has been lost, replaced with demands for the ICC to begin to fulfill its duty. But it is not easy to create an institution from scratch, especially when the Court’s mandate is the “power to exercise its jurisdiction over persons for the most serious crimes of international concern”.

As of today, 120 countries have ratified the treaty and the voices criticizing the existence of the Rome Statute have substantially diminished. The ICC is currently investigating 14 cases in 7 different situation countries, and during the 2010 Review Conference the Crime of Aggression was adopted. The United Nations Security Council has referred the situations of Darfur and Libya, granting the ICC jurisdiction over two of the most desperate humanitarian and political crises in the 21st century. In addition, the ICC has triggered the so-called “peace vs. justice debate”, concluding that justice and peace are not in existential opposition.

Despite these significant achievements, the ICC is yet to conclude a single judgment (the ruling on the Lubanga case is expected in the coming weeks), the Office of the Prosecutor (OTP) has failed to open an official investigation in any country outside Africa, despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America. Furthermore, the final drafting of the Crime of Aggression could suggest that it will take a long, long time for this crime to come into force.

In this context, 2012 could not be any less welcoming

The global economic crisis hampered the increase of its annual budget needed to conduct more investigations in the field; the last election of six ICC judges at the Assembly of State Parties showed old and bad habits by States struggling to elect their own officials and the recent release of Callixte Mbarushimana because of deficiencies in the way the OTP handled the case. These have triggered a number of criticisms towards the ICC.

Implementation and Complementarity: Who helps whom? 

One of the most important aspects in the adoption of the Rome Statute is the principle of complementarity and the need for States to adopt implementing legislation regarding international crimes and judicial cooperation with the ICC. This has prompted countries around the world, including those under preliminary examination and situation countries, to discuss and/or enact laws regarding the application of International Criminal Law, as well as the triggering of national prosecutions.

Perhaps it is Latin America where the most significant progress has been made in this field, both at the national level as well as within the framework of the Inter-American Court of Human Rights. Despite the fact that most cases in this region concern international crimes perpetrated outside the temporal jurisdiction of the ICC, the significance of the Rome Statute has prompted this significant judicial and legal accomplishment.

However, this cannot be considered to be enough. As a court of last resort, prosecuting only those alleged to be most responsible for committing the most heinous crimes, the ICC should also work to strengthen its role in capacity building within national judiciaries. If the Court aims to comprehensively strengthen the current international justice system and the rule of law, it must work (without compromising its independence) to ensure that State Parties are capable of investigating and prosecuting international crimes.

From Preliminary Examination to Official Investigation: No clear standard, no clues, lost efforts…

One of the major criticisms that academics and NGOs have made of the ICC and the OTP is the lack of a clear policy regarding the identification of situations that may lead to an official investigation by the Court. Although it would be impossible to harmonize standards for places as different as Afghanistan and Colombia or Palestine and Nigeria, as of now the decision to open an investigation seems to reside on elements outside the sole legal framework of the Rome Statute.

Colombia, continued Unresolved Business

Colombia has been under the ICC radar for 6 years now. Its domestic Criminal Code has a substantial regulation regarding international crimes. But, the country has been suffering an internal conflict for more than four decades; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic.

In 2006, the OTP declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against […] paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added that it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. But the Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.

After back and forth, meetings and exchange of information, the ICC concluded the Colombian judiciary was both willing and able to carry out its own investigation of the crimes. Therefore, the situation in the country is classified as a “situation under analysis.” In its December report on Preliminary Examinations, the OTP states that “There is no basis at this stage to conclude that the existing proceedings are not genuine”.

However, civil society organizations consider that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly. Despite several visits by the OTP and other ICC officials, local NGOs continue to call for ICC action in Colombia, with as yet no official response from the Court.

Honduras, the Forgotten Coup

Honduras is party to the ICC and seven years after ratifying the Statute, President Zelaya was forcibly removed from his office by the military in 2009. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras later that year.

NGOs sent communications to the ICC on crimes against humanity being committed since September 2009. But in November 2010, the Argentine ICC Prosecutor Luis Moreno-Ocampo announced publicly his decision to conduct a preliminary analysis of the situation. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

NGOs continued to call on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence.

Before turning 10…

In spite of the above, we must not forget that the Rome Statute is the most important instrument presently available in the international criminal justice system to prevent mass atrocities and to bring justice to victims of heinous crimes. It is also the first institution to put forward high standards in terms of monitoring gender crimes, fairness of proceedings and victims’ rights.

The challenges of the ICC include the efforts to continue the ratification process of the Rome Statute in the Middle East and the Asia-Pacific, to work in the strengthening of national judiciary and to deliver rulings that will become a benchmark to judges worldwide. In this scenario, a more transparent policy regarding preliminary examination and criteria for the selection of cases would also be welcomed.

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Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe
Salvador Herencia Carrasco is the Legal Adviser to the Andean Commission of Jurists. E-mail: salvadorherencia@yahoo.com

El Salvador joins Guatemala and Nicaragua as the only Central American countries that are yet not States Parties to the International Criminal Court (ICC).  These three countries not only share their refusal to become party to the Rome Statute, but also share a common history: all three experienced non-international conflicts during the 70s, 80s and 90s, where several human rights and humanitarian law violations took place.  In each country there are currently different processes of redress underway for the atrocities committed during those conflicts.

In the following article I will only refer to the Salvadorian situation. In that sense, it is important to take into consideration the historical background of this country.  El Salvador suffered one of the most violent non-international conflicts in Latin America that left 75 thousand dead, and included enforced disappearances, extrajudicial executions, and outright massacres.Having those facts as background, one can see that the ICC has a special importance in a country like El Salvador.  In that sense, the preventive and dissuasive elements of the ICC would have a strong significance for El Salvador; not only because these elements will prevent such terrible crimes taking place again in El Salvador. But also in the case of more crimes occurring, and when the state is incapable or unwilling to prosecute the authors, there will be a fair and impartial tribunal that can judge the crimes.

Since the international adoption of the Rome Statute, El Salvador has rejected the Court’s principle of international jurisdiction.  An example of this is that El Salvador was one of the Latin American countries to sign a bilateral immunity agreement with the USA in order to prevent US nationals from being sent to the ICC, even when they have committed crimes within the ICC’s jurisdiction.
In addition, during the ARENA (Alianza Republicana Nacionalista) Government (1989-2009) there was a clear opposition to the Rome Statute; ARENA claimed constitutional obstacles prevented it from ratifying.  However, the real concern of the right wing parties in El Salvador (ARENA and PCN, Partido de Conciliacion Nacional) was that the crimes committed during the Salvadorian internal armed conflict could be judged by the ICC.  Apparently these political institutions did not understand the principle of non-retroactive law (freedom from Ex Post Facto Laws) established in Article 11 of the Rome Statute.

In 2009, the Presidential Elections were won by the main left wing party (FMLN - Frente Farabundo Marti para la Liberacion Nacional).  To many sectors of Salvadorian society, particularly the human rights movement, the new political scenario is seen as conducive to the ratification process.  Thus, the Ministry of International Affairs launched a public survey regarding the pros and cons of ratification.  However, results of this survey are still pending. On the other hand, in September 2011, the President of the National Congress, and member of the FMLN, urged the President of the Republic, Mauricio Funes, to send the Statute to the National Congress for ratification.  As yet, there has been no response from the President. It remains to be seen if and when El Salvador will ratify the treaty.

Original in Spanish at Asuntos del Sur: http://www.asuntosdelsur.org/opiniones/opinion/172

El Salvador joins Guatemala and Nicaragua as the only Central American countries that are yet not States Parties to the International Criminal Court (ICC).  These three countries not only share their refusal to become party to the Rome Statute, but also share a common history: all three experienced non-international conflicts during the 70s, 80s and 90s, where several human rights and humanitarian law violations took place.  In each country there are currently different processes of redress underway for the atrocities committed during those conflicts.

In the following article I will only refer to the Salvadorian situation. In that sense, it is important to take into consideration the historical background of this country.  El Salvador suffered one of the most violent non-international conflicts in Latin America that left 75 thousand dead, and included enforced disappearances, extrajudicial executions, and outright massacres.Having those facts as background, one can see that the ICC has a special importance in a country like El Salvador.  In that sense, the preventive and dissuasive elements of the ICC would have a strong significance for El Salvador; not only because these elements will prevent such terrible crimes taking place again in El Salvador. But also in the case of more crimes occurring, and when the state is incapable or unwilling to prosecute the authors, there will be a fair and impartial tribunal that can judge the crimes.

Since the international adoption of the Rome Statute, El Salvador has rejected the Court’s principle of international jurisdiction.  An example of this is that El Salvador was one of the Latin American countries to sign a bilateral immunity agreement with the USA in order to prevent US nationals from being sent to the ICC, even when they have committed crimes within the ICC’s jurisdiction.
In addition, during the ARENA (Alianza Republicana Nacionalista) Government (1989-2009) there was a clear opposition to the Rome Statute; ARENA claimed constitutional obstacles prevented it from ratifying.  However, the real concern of the right wing parties in El Salvador (ARENA and PCN, Partido de Conciliacion Nacional) was that the crimes committed during the Salvadorian internal armed conflict could be judged by the ICC.  Apparently these political institutions did not understand the principle of non-retroactive law (freedom from Ex Post Facto Laws) established in Article 11 of the Rome Statute.

In 2009, the Presidential Elections were won by the main left wing party (FMLN - Frente Farabundo Marti para la Liberacion Nacional).  To many sectors of Salvadorian society, particularly the human rights movement, the new political scenario is seen as conducive to the ratification process.  Thus, the Ministry of International Affairs launched a public survey regarding the pros and cons of ratification.  However, results of this survey are still pending. On the other hand, in September 2011, the President of the National Congress, and member of the FMLN, urged the President of the Republic, Mauricio Funes, to send the Statute to the National Congress for ratification.  As yet, there has been no response from the President. It remains to be seen if and when El Salvador will ratify the treaty.

Original in Spanish at Asuntos del Sur: http://www.asuntosdelsur.org/opiniones/opinion/172

Revolutions have been sweeping the Middle East and North Africa for a year now, in what has been commonly referred to as the Arab Spring. When looking back and examining which Arab countries have not yet experienced large-scale protests or anything commonly considered a revolution, one realizes that these countries govern through traditional versus legal forms of domination, i.e., they are hereditary monarchies. The Kingdoms of Morocco, Jordan, Bahrain, as well as those of Oman, Saudi Arabia, Kuwait, the U.A.E. and Qatar, have been left relatively unscathed by the regional revolutionary zeitgeist, which begs the question, why? This piece will not attempt to prove if a monarchy as a form of government is more or less prone to popular revolt, or resilient to calls for reform. It will instead explain certain dynamics of such regimes as compared to their republican counterparts, which have already seen large-scale protests or democratic transition. I find that there are structural differences between the two forms of government, but ultimately there might not be such drastic differences in the prospects of change between the two.

Sources of Change

Arab monarchies have not been characterized by the persistent mass mobilization of their populations, but rather, by appeasement policies and repeated promises of reform. In the past year Saudi Arabia has allowed its women to vote (though not yet to drive); cabinets have been continuously reshuffled, constitutional amendments passed, reviews of government performance published, and economic incentives promised. There has been the constant reminder that the government is willing to engage in ‘open dialogue’ and the King of Jordan has even stated that the “failure to change is a lose-lose proposition”. But what kind of change can really emerge from within the regime itself? The government may promise reform, but essentially, the source of the ‘change’ would remain the monarch.

Initial promises of reform in Arab republics were not enough to diminish escalating protests, and ultimately, leaders were forced to resign. Libya was, and Syria remains, an exception. It was citizens of Egypt, Tunisia, and Libya who were the source of change, and who still continue to work toward achieving democracy. Yet even these bottom-up processes toward reform have faced difficulties, especially as competing opinions arise on how to form new governments and manage the democratic transition. Might it be more effective, then, to instate reform in a top-down fashion, as these monarchies claim to be doing?

Leaderless Revolutions versus Top-down Reform

The revolutions which have so far advanced the furthest are those of Tunisia and Egypt. No doubt they were bottom-up processes, with the social advantage of allowing for the participation of a vast array of society; the poor and the well-educated, Muslims and Christians, men and women. A leaderless revolution has its virtue in mass inclusion, bringing it one step closer toward democracy through mass mobilization. But beyond the point of removing the leader is when the leaderless revolution perhaps presents some difficulties, if not disadvantages.

The issue to be taken with mass inclusion is that during times of disagreement on how to put in place a new government, the remaining reform elements are often established upon what the country had already agreed upon, namely, the old regime’s legal system. This is perhaps exemplified by Egypt’s constitutional referendum, where, given the choice of rewriting the constitution or amending certain parts of it, about seventy percent of voters chose the latter, indicating their reversion to the old legal system, and reflecting a prevalent fear of too drastic change. Essentially, even the mass movements of the Arab republics have not yet been complete removals of the old regimes. Thus, when examining monarchies, is it any different when a king attempts to institute certain changes while maintaining the present governing structure?

Forms of Government Structure and Legitimation

Protests in Arab monarchies have on the whole called for government reform rather than the toppling of the leader. Essentially, this difference comes from the different forms of authority that the people attach to their leaders. As described by sociologist Max Weber, the traditional form of legitimate domination results from a leader’s claim to divine or hereditary privilege. The legitimacy of certain Arab kings in the eyes of their subjects rests on their claims of descent from the Prophet Mohamed. Conversely, legal forms, most commonly associated with democracies and republics, are based on legally rational measures, such as elections. If citizens have placed the leader in power though their consent, the removal of their consent therefore rationalizes his removal.

Perhaps it is then more difficult to imagine the monarch’s cross-generational familial ties with the throne severed in just a few months. Perhaps not. Lisa Anderson indicates in her 1991 article, Absolutism and the Resilience of Monarchy in the Middle East, that “monarchy as currently understood in the Middle East is no more indigenous than liberal democracy”. The families of the current leaders- King Mohammed VI of Morocco and King Abdullah II of Jordan- were actually instated by French and British colonial rule in the 20th century. Left with remnants of colonial structures, these monarchies have been able to remain strong and centralized. The removal of presidents like Mubarak and Ben Ali, and not any Arab kings as of yet, essentially comes down to what it means to cause the downfall of the regime, and not merely the head of state. In Egypt, the army, a strong U.S. ally, still holds power after Mubarak’s fall and maintains certain stabilizing policies of the Mubarak era. But when a monarch is toppled, essentially, the state’s legislative, military, and sometimes even religious allegiances shift, allowing for a greater chance of state decentralization and regional uncertainty. Perhaps fear of this uncertainty is what had deterred the call for the monarch’s removal, until now.

The People Demand the Downfall of the…. King?

Throughout the revolutions, people have expressed their will by chanting, “The people demand the downfall of the regime”. Despite the more drastic outcomes that might result from the removal of a monarch as opposed to a president, citizens of kingdoms have begun expressing the same ambitions. Following sustained protests since February, it was only recently that protestors in Bahrain began calling for the removal of the king himself. This call and response to the king’s speech given last week was voiced by the head of the Bahrain Center for Human Rights, who claimed that it was actually the king whom the people faulted and that that it was since his ascendancy to the throne in 2002 that injustice has been rampant.

In Morocco, the desire for the removal of the king has also been displayed during street protests. According to the NYTimes, the country’s motto “God, the Nation, the King,” has been transformed into “God, the Nation, Liberty”; and “Long live the King” has become “Long Live the People.” Morocco, unlike Jordan and Bahrain, was officially an absolutist monarchy. The king’s first step toward reform was announcing a transition to a constitutional monarchy, yet still allotting himself supreme military and religious authority. But top-down reform measures are not effectively appeasing the people. Just today, AlJazeera has reported the self-immolation of unemployed college graduates, echoing the catalytic action of Mohamed Bouazizi at the start of the Arab Spring. Protestors in kingdoms are slowly starting to adopt methods resembling those of their counterparts in republics. Whether these mass movements will be effective in countries with a heavily centralized king, or whether monarchies will prove themselves immune to change by the people, is to be discovered as the movements develop.

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com or to our Facebook page.

History of Political Discontent

Within the context of political upheavals in Egypt, Tunisia, Syria, Yemen, and Libya, the revolution in Bahrain is certainly not an isolated event. Dissatisfaction with the ruling family has been cyclical, and over the years there have been small steps taken toward political reform. But amidst the regional effort for overthrowing authoritarian regimes, the current uprising for reform in Bahrain has persisted since February, ultimately becoming a call for regime change, in the hope that the country will embark on its own democratic transition. The current regime in Bahrain, officially known as the Kingdom of Bahrain, is a monarchy led by the Khalifa family. The chief of state is King Hamad, and while he’s only held his position since February 14, 2002 (only, comparative to the decades-long rule of leaders from neighboring Arab states), the prime minister, also the King’s uncle, has been in power since the country’s independence from Britain in 1971. The revolution has been portrayed as simply an uprising of the country’s Shia majority (who constitute 70% of the population) against the Sunni ruling family, but with a prime minister who’s been in power for 30 years, surely the issues at hand are not only sectarian but of national representation and reform.

Since February 14, 2011, there have been injustices committed against Bahraini citizens advocating for their right to self- expression and for government reform.  Peaceful assemblies of protest have been met with violence. Laws have been passed so that even marching in a protest can warrant an arrest for illegal assembly. Military trials have been called for 47 doctors and nurses accused by the Bahraini government of stockpiling weapons, stealing medicine, and inflicting harm on their patients. In their humanitarian efforts to treat protest casualties , they have been accused of trying to subvert the regime. The trials of the convicted medical personnel were resumed earlier this month, for which foreign coverage was restricted. 

According to Nabeel Rajab, a prominent Bahraini human rights activist, in 2004 the government shut down the Bahrain Center for Human Rights after its director accused the prime minister of responsibility for the country’s systemic corruption. The director was subsequently, and still remains, imprisoned. The current liberation movement has been a collective effort comprising sectarian, political, economic, cultural, and social discontent. Nabeel Rajab has also claimed in an interview with Jadiliyya that “some of them are Communists, others are Shia and Sunni, intellectuals and uneducated, managers and workers. This is the first time that we are able to bring together so many people of such diverse backgrounds and cultures in one movement, one cause, and one uprising”. The 1990s uprisings had ended with the declaration of a National Action Charter, meant to place the country under constitutional rule and toward reform. This led to the first parliamentary elections in 2002 and saw a period of economic advancement, but clearly, this has not been sufficient to address the grievances of those still protesting even after the destruction of one of the physical symbol of the protests – Pearl Roundabout.

The GCC, Media and International Double Standards

The struggles against the authoritarian regimes of Egypt and Tunisia were largely played out internally, between pro-government and opposition groups of the same nationality. In Libya, the case was different, with NATO’s involvement in toppling Qaddafi, and in Syria, where observers from the Arab League have been sent to monitor government abuse. In Bahrain, however, neighboring countries and even Western powers have shown an interest in maintaining the current regime. As a member of the Gulf Cooperation Council (GCC), Bahrain’s stability is integral to the economic and political well-being of the organization’s member countries which include other monarchies such as Saudi Arabia, Kuwait, Oman, Qatar, and the UAE. Therefore, these countries have taken action, whether direct or indirect, invited or uninvited, to maintain the current status quo in Bahrain. On March 14, Saudi Arabia sent in troops to suppress the revolutionaries. Regional media outlets, while continuing to focus on developments in Yemen and Syria, have largely remained silent on any such developments in Bahrain. Surely this is not only because Bahrain is a relatively small country, but because of the location of AlJazeera and AlArabiya, the most prominent regional media sources, in GCC countries.

The revolutions seem to have taken the U.S. by surprise, and policies toward different Arab countries have oftentimes been contradictory. According to Human Rights First, “Multiple factors ranging from the influence of the U.S. and Saudi Arabian governments to the lack of access allowed to foreign journalists in the country can be blamed” for the limited media coverage that Bahrain has received, as compared to Egypt, Tunisia, Libya, Syria and Yemen. In spite of the injustices that the Bahraini government commits against its own citizens, foreign relations with Bahraini leaders have maintained the status quo. Despite criticizing Russian and Chinese opposition to intervention in Syria, the U.S. itself continues to sell arms to the government of Bahrain, arms that are being used against Bahraini citizens. At the same time, the U.S. has sent a former police chief to “train” the Bahraini police force on crowd control tactics through the use of “non-lethal” methods such as tear gas. Of course, as evidenced by tear-gas supplied to Egypt, we know that these methods can indeed be lethal and are tools of state-sponsored human rights abuses. Bahraini citizens, initially calling for reform, are now realizing the extent of the state-sponsored corruption which goes so far as to humiliate Bahraini citizens at the hands of foreign personnel.

State of Emergency and Foreign “Conspiracy”

The pattern of government oppression in the region has become all too familiar: citizens hold non-violent assemblies, police are unable to impose crowd control, a national state of emergency is declared, violence ensues. The claim by some governments that the revolutionary movements were “foreign conspiracies” has also been predictable; in Bahrain, there have thus far been claims by the government (attributed to the Shia-Sunni divide) of Iranian involvement in the revolution. It is clear that there has been foreign interest, however, in favor of maintaining the authoritarian government. Without the backing of the Gulf Cooperation Council, it seems Bahrain’s government would have a difficult time maintaining its oppressive and increasingly abusive control over its people. As of March, a “state of emergency” had been declared, and was backed by GCC capitals, especially Riyadh and Abu Dhabi. This law prohibits even peaceful public assemblies and permits the military to suppress them. In March, the GCC pledged $20 billion in financial aid to Bahrain and Oman over a 10-year period to assist the two nations in their struggle with Arab protests. In June, in an effort to salvage Bahrain’s image and economy, King Hamad lifted the state of emergency, offered to renew talks with opposition leaders, and formed an independent commission of experts known as the Bahrain Independent Commission of Inquiry (BICI) to investigate abuses during the February and March protests. But this talk of reform accompanied by contradictory state actions has only led protestors to escalate their demand for regime change.

Abuse Persists, Now with more Observers

Most recently, Nabeel Rajab has been beaten by state-hired personnel, some of whom he claims were Jordanian and Pakistani. The government, on the other hand, has stated that it had found the activist lying on the floor and that it took him to the nearest hospital. A representative of the Gulf Council for Foreign Relations claims that Bahrain is different from Egypt and Tunisia, because the situation is “a reform process, not a revolution”. But abuse and shameless lying cannot be steps toward reform. In the face of continued oppression, it becomes clear that the removal of a regime that tortures its citizens and lies to protect its image is perhaps the only means to bring about real change. But in a country facing not only internal oppression but also regional pressures to maintain the status quo and with the U.S. continuing to sell arms to Bahrain, how loud will the collective voice of Bahrain’s one million citizens have to shout? At least now there is hope in that the world is slowly awakening to the abuse in Bahrain, and civil society organizations have been keeping track of abuses which had largely been hidden since the start of the 2011 revolutionary movements.

So far this blog series has investigated the US-ICC relationship from a historical perspective.  It has become evident that this relationship has waxed and waned from one of initial engagement, but not acceptance, under the Clinton administration, to belligerency under the first several years of the Bush administration, to a more engaging, almost accepting approach under the latter years of Bush and the early years of the Obama administration.  With these previous historical perspectives as our foundation, we may now ask what policy towards the ICC is most beneficial for the United States.  In other words, what approach to the Court serves the United States’ national interests?  In order to engage this question, it is imperative that we first understand the concept of ‘national interest’ before discussing how US-ICC relations affect it.

Oftentimes the literature and debate on US national interest is characterized as contentious and partisan.  I would argue that the contestation concerning national interest is typically not about what constitutes national interest, but the means by which the United States achieves that interest. Generally speaking, there is a commonality that persists in the debate over national interest; and although some (like Ron Paul’s neo-isolationist agenda) remain opposed to this common notion of national interest, others are united around the idea of perpetuating a global liberal order.  The pursuit of what John G. Ikenberry referred to as a “liberal grand strategy” binds together the seemingly different foreign policy agendas of such administrations as Woodrow Wilson, Harry Truman, John Kennedy, Ronald Reagan, Bill Clinton, George W. Bush and Barack Obama.  What they all have in common is the desire to have American liberal values permeate all areas of the global community.  Such values would include: rational leadership, limited and representative government, freedom and liberty of the individual, and substantive equality among these individuals.  Where they differ, as mentioned above, is in the means by which the US achieves this goal.  Should the United States pursue a liberal institutionalist or multilateral policy, a unilateral approach, interventionist policy, or something altogether different?  But in the end, all administrations are trying to perpetuate the global liberal order because it is within this liberal order that the United States remains hegemonic.

So how does US policy concerning the ICC fit into this national interest debate?  In order to address this question, we must first address whether the ICC is a liberal institution.  If US national interest is bound up in the promotion of a global liberal order, then acceptance of international institutions should in some way be predicated on their relationship to liberal principles.  And one only need read the Rome Statute to realize that the ICC is clearly a liberal institution.  This institution accepts the notion of individual equality, protection and equality before the law, election of authority via democratic means, victims’ rights, rights of the accused, and many other legal-liberal principles.  Aside from the use of bench trials as opposed to trial by a jury of peers, the Rome Statute is complementary to the United States Bill of Rights.  Thus, the liberal nature of the Court is simply unquestionable.  This does not eliminate the issues raised by the United States concerning the Court, as discussed in earlier entries in this series, but it stipulates that the ICC retains many of the liberal principles that are inherent in a liberal global order.

How then should this affect US policy concerning the ICC?  This brings us to the final piece of the puzzle, the notion of hegemony.  As I stated earlier, the liberal order is a fundamental part of US hegemony; but what exactly does this mean?  Hegemony is defined as the ability to control outcomes.  Traditionally, this is discussed in a purely material way—which country has the largest military, most advanced technology, strongest economy, etc.  This form of hegemony, not only in its acquisition but also in a state’s ability to sustain this position, is predicated on a more coercive form of authority.  However, another way to conceive of hegemonic authority is via ideational power.  Some, such as Joseph Nye, discuss this as soft power, or power via consent and acceptance as opposed to domination and control.  The Italian philosopher Antonio Gramsci described this form of authority as “intellectual and moral leadership.”  But no matter what we term this form of hegemony, it remains predicated on an intersubjectively accepted understanding of norms and principles that finds its leadership in a hegemonic nation-state working to perpetuate this system.  Thus, its causal source of power is in aligning one’s interests with those of the global community, not in imposing your will on said community in a coercive manner.

If the United States is the current hegemon, and I believe this is empirically accurate, and the causal source of power is the acceptance of a global liberal order, then how should the US approach the ICC?  Bearing in mind the foundational conception of both ideational hegemony and the liberal nature of the ICC, it seems accurate to claim that an oppositional policy towards the ICC is both hindering the international community’s pursuit of global justice and undermining the current status of American hegemony.  This is due to the liberal nature of the ICC and its contribution to the perpetuation of the global liberal order.  As a result, the United States’ ability to pursue its national interest is also being hindered.  One must recall that the basis of American hegemony throughout much of its history has been the pursuit of an international system that reflects its domestic liberal values.  This pursuit exists in both material power and ideational hegemony, or one predicated on soft power.  Thus, US opposition to the ICC and its mandate appears detrimental to the primary goal of American national interest—the perpetuation of a global liberal order.  The only rational policy recommendation is acceptance of the ICC and its pursuit of global justice.  Any other approach to the Court undermines US power as opposed to sustaining it. 

In making this recommendation, it is important to recognize that such a policy originates from a power-based perspective, not a moral one.  Many of the world’s most pre-eminent legal scholars have drafted supportive documents in favor of US support and/or ratification of the Rome Statute based on morality.  As evidenced by the slow and incremental engagement of the ICC by the United States, it is apparent that this line of rational thinking has not fully permeated the mindset of current policymakers.  Thus, this editorial attempts to speak to government officials in a language they can understand—power.  By opposing the ICC, the United States is failing to support its own liberal agenda.  The result of such action is a loss of ideational influence, a decline in hegemonic status, and a defeat for American national interests—in short, a loss of power.  In order to rectify this situation, the US need not openly embrace the ICC and immediately move towards ratification of the Rome Statute; instead, the US should continue to establish a working relationship with the Court and cease its undermining tactics.  The Obama administration has done well to create such an affable relationship with the Court and needs to continue with this approach.  Only such a policy will serve as a foundation for future participation in liberal institution building and as a result, continued promotion of a liberal world order—both of which serve US national interests.

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Read parts One and Two of the special series on the US and the ICC here.