Historic opportunity for Yemen to ratify the International Criminal Court Treaty [Archives:2004/701/Opinion]

January 8 2004

By Joydeep Sengupta*
The year 2004 has brought the world's attention to human rights in Yemen. Beginning in December, 2003, over 2000 NGOs, from Afghanistan to Zimbabwe, under the umbrella of the Coalition for the International Criminal Court (CICC), selected Yemen as the target country of the month urging its ratification of the Rome Statute of the International Criminal Court (ICC). The establishment of the ICC in July 2002 marked an historic turning point in the quest for international justice. Unlike the International Court of Justice (ICJ), the ICC will have individual criminal jurisdiction over those accused of the worst human rights violations, including war crimes, crimes against humanity and genocide. Primary jurisdiction of these crimes would still fall under national courts, and the ICC would only act when a country is genuinely unable or unwilling to provide a fair trial. The Court is forward looking – its jurisdiction is only for crimes committed after the Statute's entry into force in 2002, and no past crimes can be brought before it. By ratifying the ICC treaty, Yemen would be able to cement its commitment to upholding human rights worldwide and joining a community of 92 nations responsible for the most groundbreaking advances in international law in decades.
UN Secretary General Kofi Annan calls the ICC, “a gift of hope for future generations.” It is particularly troubling that the Arab world is not well represented among the ICC States Parties – only Jordan and Djibouti have ratified, while several countries in the region (Algeria, Bahrain, Egypt, Iran, Israel, Kuwait, Morocco, Oman, Sudan, Syria, United Arab Emirates and Yemen) have only signed the treaty. Without the participation of Arab and Muslim countries in the ICC process, the region's rich and diverse legal traditions, and representation on the staff of the Court will be lacking. Islamic law, in particular, has special relevance to the ICC, given its long tradition of protecting non-combatants and prisoners of war during conflicts. As Justice Weeramantry of the International Court of Justice points out in his book, “Islamic Jurisprudence: An International Perspective”, the Qur'an, hadith and Sunna provide extensive guidelines for upholding many principles of today's international human rights and humanitarian laws. For instance, Islamic jurisprudence on the laws of war forbids, (i) cruel ways of killing, (ii) killing of non-combatants (civilians, women, children), (iii)executing prisoners of war, (iv) mutilation, (v) unnecessary environmental damage (destruction of crops, trees, cattle, etc.), (vi), rape and sexual abuse of captured women, (vii) killing envoys/messengers, including revenge killing, (viii)massacre, and (ix) use of poisonous weapons.
In the past, some countries have stated their unwillingness to join international human rights mechanisms as they accuse them of having a western bias. This claim is questionable, as the west does not have a cultural monopoly over human rights. While the sources of rights and protection mechanisms vary in different cultures, many of the crimes under the Rome Statute are deemed criminal in nearly all legal traditions, and are not culture specific. Islamic jurisprudence, for instance, was far advanced in terms of treatment of civilian and non-combatants during conflicts with both Islamic and non-Islamic states long before the 19th century attempts to codify such laws in Western Europe. Today, government officials and intellectuals from the Arab world continue to advance the ICC process. The President of the ICC's Assembly of States Parties, His Excellency, Prince Zeid Ra'ad Zeid Al-Hussein of Jordan, continues to play a leading role in moving the ICC forward. Likewise, Professor Cherif Bassiouni of Egypt has provided critical technical assistance during and after the 1998 Rome Conference where the ICC treaty was adopted. Her Majesty Queen Rania al-Abdallah of Jordan was recently elected to serve on the ICC's Trust Fund for Victims. Globally respected intellectual and Palestinian activist Professor Edward Said, who passed away last year, was a “Friend” of the Coalition for the ICC as well.
Some powerful Western countries have opposed the ICC by claiming that it could target its citizens by politically motivated trials. Despite being two of the earliest advocates for a permanent ICC, the United States and Israel have now turned around to oppose the Court in order to prevent their citizens from ever facing the Court. In fact, the ICC's numerous checks and balances and strong principle of complementarity makes it most unlikely that politically motivated cases would ever be prosecuted. While former US President Bill Clinton signed the Rome Statute in 2000, President George Bush illegally “withdrew” the US signature by informing the UN it has no intention to ratify the treaty. Many Americans, including leading experts of international law, remain opposed to the government's policy. Recently, Professor Harold Hongju Koh, Dean of Yale Law School (one of the most respected law schools in the United States) described America's opposition to the ICC as “short-sighted”, and has urged the US to strengthen its commitment to international law as an alternative to war. He has called for international and Iraqi cooperation in devising a hybrid domestic-international tribunal to bring Saddam Hussein to justice, instead of a solely domestic court largely influenced by the US. Leading Democratic Presidential candidates challenging George Bush in 2004, namely Howard Dean and Wesley Clark have also questioned the Bush administration's withdrawal from the ICC, as an arrogant move which alienates democratic allies around the world, especially the European Union.
For too long, lack of a permanent ICC and abuse of the principle of sovereignty has perpetuated the impunity gap, but strengthening international justice in recent years offers new hope for justice. The trial of Slobodan Milosevic in The Hague sends a clear message that the international community is committed to prosecuting grave human rights violations regardless of the position or power of the perpetrator.
Yemen should be congratulated for signing the Rome Statute in December 2000, and for sending observer missions to the last ICC Assembly of States Parties at the UN. Still, unless it ratifies, Yemen will not have the opportunity to nominate or vote in the election of future judges and other high officials of the court, and take part in its decision making. In October 2003, Yemeni NGOs came together in forming the Yemeni Coalition for the ICC, under the inspiring leadership of Sisters' Arab Forum for Human Rights, thereby joining the global campaign to support the Court. By bringing together diverse NGOs from all governorates, the Yemeni Coalition can play a crucial role in raising awareness and understanding of the ICC in Yemen, and in partnership with the government, in drafting effective ratification and implementation legislation.
We stand at a tumultuous time in history, when cooperation, mutual respect and understanding between nations is more necessary than ever before. By ratifying the Rome Statute, Yemen would find itself among countries with excellent human rights records, which support accountability at the global level through the universal rule of law. Yemen's recent commitments to strengthening human rights have been impressive: from the creation of a Ministry for Human Rights, currently headed by a woman, to supporting a culture of participatory democracy among civil society, to co-sponsoring the upcoming regional democracy, human rights and ICC conference, in partnership with the European Commission, No Peace Without Justice, and other governments. The Coalition for the ICC salutes the work of the Yemeni Coalition and the Yemeni government, in moving towards ratification. We would especially like to thank CICC member organizations Sisters' Arab Forum for Human Rights (SAF, Yemen), Amnesty International, Federation Internationale des Ligues de Droits de l'Hommme (FIDH, France), No Peace Without Justice (NPWJ, Italy) and local NGOs for their commitment and dedication to Yemen and the ICC. The Coalition looks forward to Yemen's speedy ratification of the ICC treaty, and welcoming it to the next Assembly of States Parties.

* Joydeep Sengupta is the Outreach Liaison for the Middle East at the Coalition for the International Criminal Court (http://www.iccnow.org), a network of over 2000 NGOs around the world supporting a fair, effective and independent International Criminal Court.