A decade of reasons why Arab countries distrust the ICC

Many countries around the world have signed on to the International Criminal Court, but few Arab state have done so. While the Arab Spring is changing perceptions of justice and accountability, the ICC is unlikely to benefit.

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Judge Song Sang-hyun, the president of the International Criminal Court, may not need an introduction in The Hague. But in Doha, where court officials gathered late last month to lobby Arab states to join the first permanent war crimes tribunal, he could have used a name tag.

How do you spell your name, one conference organiser asked before hurrying to print an ID card for the ICC chief. "I'm the master of ceremonies," Judge Song replied, clearly not amused.

During a period of Arab revolutions, when calls for justice and accountability have toppled dictators and threatened regimes, the ICC would on the surface seem to be the perfect fit for the region's legal grievances. But as the recent talks in Doha made clear, many Arab leaders are deeply suspicious of the court's impartiality.

There are valid reasons for this scepticism. So far, the ICC has focused narrowly on African cases, and virtually ignored the Israeli-Palestinian struggle, a glaringly deliberate omission to many. Leaders also are cautious, rightly or wrongly, that recognising the court could lead to the lens of international justice being turned on them. With few exceptions, only members of the court fall under its jurisdiction.

Middle East countries are adapting policies of human rights and accepted views on justice in line with international standards. This spring has forced many to do so. In Libya, Colonel Muammar Qaddafi was referred to the ICC for war crimes in record time, with full Arab League backing. And in Egypt's courts, prosecutors plan to try the former president Hosni Mubarak for corruption and the killing of demonstrators during protests earlier this year. Even though it's a domestic case, the prosecution of a former head of state demonstrates the new-found demand for accountability.

Yet these cases are isolated and largely politically motivated. Based on the responses from regional leaders gathered in Doha, the ICC is still far from reversing a decade of Arab alienation.

"The Arab states, within the framework of the Arab League, are eager to continue legal dialogue with the ICC," said Mohamed R Ben Khadra, the head of the Arab League's legal department. "[But] the future of the ICC and its credibility depends on its success in putting an end to states running away from litigation. We have to have impartiality."

This perceived double standard has a name: Israel. Middle East leaders say Israel gets a free pass from the court, a view that has its merits. Despite a damning account of Israel's actions in Gaza by the Goldstone Report, for instance, the ICC has steered clear of investigating any allegations of Israeli war crimes.

That omission puts in doubt the entire principle of broadening the court's membership in the Middle East and North Africa. Created in 1998 by the Rome Statute, the court is the product of a post-Second World War drive to bring an international focus to criminal and humanitarian law. There is no shortage of potential cases either, from Yemen to Bahrain, North Korea to Nicaragua. The sheer scope of possible prosecutions, and opaque selection of targets, makes the court vulnerable to charges of partiality.

Of the 115 states that are currently full members, only three - Jordan, Djibouti and Comoros - are Arab. In his opening remarks to delegates, Judge Song argued that the region's political unrest was a good reason for Arab countries to sign up. His call for the region "to embrace the ICC, an institution that represents justice, security and peace" fell flat.

The court has not always received the cold shoulder in the region, however. Arab delegations were a force behind the court's founding, offering important support at the 1998 Rome Conference by backing the prosecutor's right to initiate cases independently. At the time, they also objected to the UN Security Council's ability to refer and veto cases, out of concern that superpowers could block efforts to investigate their own actions.

Ten years later those initial concerns have been borne out.

Unease with the ICC is not universal in the region. In Tunisia, a new government is considering a plan to ratify the Rome Statute, court officials say. Egypt may be also moving in that direction.

"After the revolution of January, there is a growing interest in supporting human rights and joining old treaties that are giving more human rights to the people. Among these treaties we can include the ICC as one," said Mahmoud Samy, Egypt's Ambassador to the Netherlands. "[But] the joining and ratification is a very complicated legal process."

Egypt and Tunisia may be exceptions moving slowly towards membership, but in reality people's demands for justice and accountability will probably be seen first in national courts. If the ICC wants to play a role, it has a long way to go.

First, it has to prove it is a capable court. In nine years of operation the court has not closed a case successfully. Some doubt its current prosecutor, Luis Moreno-Ocampo, has the political will or ability to try cases successfully. When a new prosecutor is seated next year, he must bring the political capital to demand respect and establish a better record of prosecutions. Legal experts say that without a new prosecutor and a new mandate, the ICC's credibility in the Arab world will continue to suffer.

And there may be no way around the fact that the ICC is, at least in the eyes of Arab states, an apologist for Israeli aggression. A 2009 request by the Palestinian Authority for the ICC to investigate alleged war crimes by Israel in Gaza has not moved forward, and court insiders say they doubt it will. If it does not, it will always be a hard sell to enrol Arab countries.

The Arab spring has shown that in the new Middle East and North Africa, nothing is off the table. New governments are being born while corruption and state-sanctioned violence are being rejected. But it remains to be seen how these developments will affect everyday society, much less the courtroom.