by Richard Goldstone on 26 Jun 2012 | Comments
Globally, the application of the rule of law is patchy. Let’s take the opportunity to address this
The current arrest in Libya of four officials of the international criminal court is quite clearly a violation of international law. The four were in Libya to meet with Saif al-Islam Gaddafi, the son of the former Libyan leader, who has been charged with war crimes as a result of an investigation instigated at the request of the UN security council.
Libya is bound by that resolution and obliged thereby to cooperate with the court; its actions clearly violate the international rule of law. Talk of securing a “deal” for the release of the four risks compromising the global authority of the court, which is backed by the full authority of the UN and the international community.
What is effectively an act of kidnapping also regrettably demonstrates that there is as yet no rule of law in Libya domestically. Ultimately, what has happened has justified the insistence by the ICC that Saif should be tried in The Hague.
The ICC’s Libyan crisis is a good example of the patchwork nature of the rule of law globally. While the court itself represents the best aspirations of the international community, events on the ground in a troubled state have been dictated not by law, but by the power of the gun and local political interests.
Contrast the recent positive example of the rule of law in action in Malawi. The government there has refused to invite President al-Bashir of Sudan to attend a planned summit meeting of the African Union, citing the arrest warrant in his name issued by the ICC over the situation in Darfur. To their discredit, the AU leaders are not prepared to hold the summit without al-Bashir and have moved it to Addis Ababa. Malawi is clearly acting in accordance with its international treaty obligations, and the rule of law. The African Union is not.
So what is to be done to encourage nations to be more consistent in developing this most important principle? World leaders have an opportunity to make progress this September, when they gather at the UN general assembly in New York, with the topic of the rule of law up for discussion at a parallel UN conference.
Sceptics will argue that these discussions will be theoretical and pointless. Surely might, not right, determines what happens in the world? But since the 19th century, the rule of law has been making, and continues to make, steady gains. At the national level the rule of law has become accepted as the bedrock of democracy. A state can be considered a democracy only if all people and organisations within it are subject only to laws of general application and those laws are applied fairly and equally by open and independent courts. Whether a state is recognised as a democracy depends on its adherence to the rule of law.
Internationally, too, states are judged by the extent to which they adhere to their obligations under international law, which is by no means confined to criminal law. There is no shortage of international laws that touch on many aspects of our lives that are universally respected and applied. There are the laws that control civil aviation, laws relating to posts and telecommunications, the law of the sea and laws of international trade.
And, of course, the rapid growth of literally hundreds of treaties on aspects of international criminal law that have nothing to do with the commission of war crimes - drug trafficking, trafficking in people, extradition, refugees, and terrorism. In global trade, the World Trade Organisation has become a widely used judicial institution that rules on alleged violations of trade agreements. Its rulings are almost invariably respected and its orders carried out.
This growing recognition of the rule of law at the international level is a natural consequence of our fast contracting world. States have become more dependent than ever upon each other.
This September’s meeting in New York provides an opportunity to advance the cause of the rule of law – by placing it at the center of the world’s agenda as it faces turmoil in regions of rapid transition and regions battling to avoid economic chaos. The recognition and application of the rule of law would add a measure of stability and security. Leaders of all nations should ensure that the conference leads to an emphatic and unanimous position that the rule of law is essential for peace, development and stability in the 21st century.
A minimum outcome should include the adoption of rule of law goals for UN members, such as ensuring effective separation of powers between the legislative, executive and judicial branches of government, guaranteeing an independent judiciary with all people being subject to the law; entrenching rights protecting minorities; and at the global level, tracking the extent to which states act in accordance with their international law obligations.
Such goals can be achieved over the coming years with the opportunity for periodic reviews of the progress toward meeting them. A mere statement of good intentions is not enough.
Richard Goldstone is co-chair of the Rule of Law Action Group of the International Bar Association and former chief prosecutor of the UN criminal tribunals for the former Yugoslavia and Rwanda
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Source: The Guardian (UK)