ICC Ratification Patterns in the Middle East
This paper investigates the relationship between the ICC and the Arab states. Based on different existing theoretical explanations of international regimes, the reasons for Arab opposition shall be pointed out, before reaching further conclusions regarding the future relationship between the ICC and the Arab states.
The establishment of the ICC at the beginning of the 21st century and the question why states join the ICC constitute a major puzzle in political science. For some scholars, the ICC represents a milestone on the way to a global judicial system that enforces the implementation of human rights on a global scale. For others, the ICC is a western tool, created to influence in particular the African states, and therefore a rather counterproductive institution on the way towards a global system of justice.
The Middle East has so far rejected the ICC almost unanimously. Out of the 22 member states of the Arab League (AL), only Jordan and Tunisia have ratified the Rome Statute of 2002 until now. Although there are various explanations which states are expected to join the ICC and why they will do so, there has been no significant research focusing on the more or less homogenous behavior of Arab states in this context. This constitutes a gap in political scientists’ research and deserves far more attention, especially in order to be able to provide policy makers with prescriptions of how to overcome the obvious differences between Western and Arab states. Also when considering the recent developments of the Arab Spring and the consequential question of how to deal with former regime members on a judicial basis, this puzzle could deliver relevant contributions. Furthermore, the opposition of Arab states to the ICC seemingly supports the argument, that there are no global norms of justice, and that the ICC merely represents Western values. A better understanding of why the Arab states in the end refused to join the ICC so far could support or undermine this argument.
This paper attempts to bring some light into this field by contesting different theoretical explanations about states’ behavior towards the ICC. In order to do so, two questions shall be addressed. Firstly, how can the Arab behavior be explained by using existing theoretical approaches about international regimes ratification? Secondly, what are the implications of these findings for the relevance, impact and future of the ICC?
This paper argues that it were mainly the authoritarian systems,that prevented Arab states from joining the ICC as opposed to the explanatory approach stressing insurmountable gaps between Western and Arab norms.
2. Existing theoretical Explanations
Although human rights regimes have existed for many decades now, the question why states join the ICC needs to be addressed in a different way than former research offers for example regarding the Convention against Torture of 1984. The character of the ICC itself that differs from former human rights regimes in three essential ways is one reason for this. Firstly, unlike other treaties of human rights, the ICC embodies the form of hard law that possibly results in high sovereignty costs (Dutton 2009, p. 2). This means that, secondly, ICC ratification entails the unprecedented danger of interference in a state’s sovereignty. The ICC therefore, thirdly, breaks with traditional boundaries of international law (Smith 2003, p. 3). Ratification entails few foreseeable benefits, but high potential costs, and this pattern gives ICC ratification its particular relevance.
a) Credible Commitment Theory
Danner and Simmons argue in their paper “Credible Commitments and the International Criminal Court” against the perspective of an irrelevant ICC. Promoting the view that the ICC is more than just a symbolic gesture – like for example the Convention against Torture – they argue that states rationally use the ICC to tie their hands, as they want to make steps toward conflict resolution (Danner/Simmons 2010, p. 227).
They suggest further that undemocratic governments involved in domestic conflicts in particular have problems of achieving a mutually accepted settlement, as they are unable to commit themselves credibly to act accordingly (Danner/Simmons 2010: p. 232). The ICC represents an option for these actors to credibly tie their hands by raising the ex-post costs of defection on a domestic and international scale. Consequentially, their hypothesis suggests that states with a low domestic rule of law (RoL) and recent domestic conflicts will join the ICC (Danner/Simmons 2010: p. 235).
Credible Commitment Theory, as presented by Danner and Simmons cannot be confirmed by this investigation. All Arab countries are more or less autocratic – or have been until now – and in particular countries like Yemen, Sudan or Algeria represent most-likely cases where governments could be in need of making credible commitments to overcome problems, resulting from civil war in the 1990s. Nevertheless, none of those countries has ratified the Rome Statute.
b) Fear of Prosecution Theory
Chapman and Chaudoin question this theory of credible commitments in their paper “Ratification Patterns of the International Criminal Court” and come to an opposing conclusion. They start by investigating the ICC’s structure regarding its depth and breadth, and conclude that the ICC, agreeing with the characteristics mentioned here, is an institution that entails a very deep commitment by its signatory states (Chapman/Chaudoin 2011, p. 14).
This theory is confirmed when applied to Arab countries. Almost all of them have an autocratic leaderships whose rulers show no or low respect for human rights when dealing with domestic opponents. Furthermore, the conflicts fought in the countries that experienced civil wars, involved severe violations of international human rights law, and would give possibility to ICC investigation or at least pressure to investigate on a domestic basis. According to Chapman’s and Chaudoin’s theoretical approach, those countries with the most to fear from the ICC did not join the ICC. Sudan is a famous example that represents a most-likely case for both of the first theories, but only fits in Chapman’s and Chaudoin’s explanation.
c) Democratic Transition Theory
This approach, elaborated by Moravcsik in 2000 in his paper “The origins of Human Rights Regimes: Democratic Delegation in Postwar Europe”, represents a more specified version of credible commitment theory, applicable only to states in the phase of transition towards democracy. Moravcsik identifies a pattern of supporters of the ECHR in 1949 and 1950. The states most supportive of the new human rights regime were those states that found themselves in the situation of transition towards democracy (Moravcsik 2000, p. 222). He explains this behavior with the domestic political needs of these governments. In times of high political uncertainty – for example after revolutions – governments create quasi-independent judicial bodies as a tactic to
Democratic Transition Theory probably represents the most interesting approach, regarding the current situation in the Middle East. The fact that Tunisia, which so far achieved the most successful and most developed transition to democracy as a consequence of the Arab Spring, joined the ICC officially on the 1st of September greatly supports this theory. In the case of Libya that has also just experienced a successful revolution, the process of transition to democracy is just about to start.
The fact that the National Transitional Council strongly welcomed the ICC arrest warrant against Muamar Gaddafi does not allow for any conclusions – at least not as long as the degree of actual cooperation with the ICC to bring Gadaffi to court has to be questioned, as the unclear circumstances of Gaddafi’s death suggest. Egypt, the third state in a phase of transition toward democracy, made clear signals of a changing its attitude regarding the ICC. “Egypt is currently taking the required steps to join all United Nations agreements on human rights and to join the International Criminal Court“, a high-ranking official said during a press conference with visiting German foreign minister Westerwelle (Almasry Alyoum, 19.04.2011). Although it is not possible to generalize these findings at this point of uncertainty, the on-going developments make clear that democratization is an important possible motor for the commitment to Human Rights Regimes.
d) Regional Norm Diffusion Theory
A fourth explanation of ratification patterns concerning the ICC is promoted by Heather Smith in her paper about “The International Criminal Court and Regional Diffusion”. Smith starts her explanations with two observations. Firstly, the ICC itself offers no obvious material benefits, only obvious costs to its members. Furthermore, the compliance with human rights norms could be achieved unilaterally by states (Smith 2003: p. 3). Secondly, when looking at the ratification patterns concerning the ICC, she identifies certain strongholds of the ICC and certain areas that almost homogenously oppose the ICC – South Asia and the Middle East (Smith 2003: p. 16). According to Smith, there are two types of norms that explain these regional patterns (Smith 2003: 14). On the one hand, there are globally accepted norms like diplomatic immunity or free trade. On the other hand, there are regional norms such as the low level of women’s emancipation or a lower value of human rights in the Arab world. These regional norms influence a state’s decision to join or oppose an international organization. We should therefore see homogenous regional patterns of ratification. In the case of the ICC, this leads to the following hypothesis. In those areas where regional norms involving state respect for human rights can be identified, we should see a high number of states ratifying the Rome Statute, which should not be the case for regions without such norms..
The idea that regional norms constitute another decisive factor regarding the ratification of the ICC is hard to deny. All the countries regarded here inherit common norms of Muslim culture regarding for example the role of women and are furthermore, often unrelated to Muslim culture itself, characterized by low respect for human rights. Although the degrees of respect for human rights differ greatly between for example states like Qatar and Sudan, torture of prisoners and a violent oppression of domestic opposition are fairly common in most of these states, given their authoritarian style of leadership. Those common characteristics and the common outcome of ICC non-ratification support Smith’s theory about the importance of regional norms, which could constitute one of the major problems on the way of achieving a global system of justice.
The ratification patterns of the ICC in the Arab world indeed constitute an interesting puzzle, in particular given the almost homogenous opposition of the Arab States. Only Jordan, the single Arab state that ratified the Rome Statute in 1998, showed support for ICC initiatives and was even ready to conflict with the AL over the issue of Sudan. “We in Jordan wonder, how we would bring Israeli leaders to the ICC following the aggression on Gaza and demand non-execution of the court’s decisions […] in the case of Sudan.”, a Jordanian official said in 2009, clearly conflicting with the AL’s position (Sudan Tribune, 29.03.2009 ). The question why Jordan cooperated with the ICC is not part of this paper, but constitutes an interesting phenomenon for possible future research.
Regarding the four theories applied here, fear of prosecution on the side of governments and regional, i.e. Arab norms or forms of behavior conflicting with ICC interpretation of justice seem to be the major reasons for the Arab opposition. These explanations, proposed by Chapman and Chaudoin as well as by Smith, fit the empirical reality best. Danner’s and Simmon’s Credible Commitment Theory could not be confirmed. Furthermore, Democratic Transition Theory provided useful insights and explanations for the behavior of Tunisia and Egypt. The still on-going Arab Spring and future developments in this region could call for a more intensified research in this direction.
The ICC’s enforcement mechanisms seem indeed effective enough to scare people, who violate human rights laws. This leads to the conclusion, that it were less the Arab values or norms, that prevented states like Tunisia from joining the ICC, but the dictatorships.
On the one hand, this constitutes a positive recognition, as it suggests that the Arab world does not have to be excluded or exclude itself from a global system of justice. The ICC rules and laws can complement existing judicial systems in this region. On the other hand, this shows, that the ICC will also in the future have low impact in those areas, where it would be most needed, as dictators will continue to oppose it. It was not a change of mind of Mubarak or Ben Ali, that paved the way for a better cooperation with the ICC, but simply their removal. Although the Arab Spring is still ongoing, a Middle East without dictators – and therefore probably with a regionally accepted ICC – may remain a dream for quite a long time.
Matthias Scholz hat seinen Bachelor in Neuerer und Neuester Geschichte (HF) sowie Islamwissenschaft (NF) im August 2011 an der Universität Freiburg abgeschlossen und studiert nun im ersten Semester International Relations and Diplomacy an der University of Leiden, sowie dem Netherlands Institute of International Relations Clingendael in Den Haag.
Chapman, Terrence and Chaudoin, Stephan: Ratification Patterns of the International Criminal Court; unpublished manuscript, 2011.
Danner, Allison and Simmons, Beth: Credible Commitments and the International Criminal Court; International Organization 64, 2010.
Dutton, Yvonne: Commitment to the International Criminal Court: Do States view strong Enforc Mechanisms as a Credible Threat?; One Earth Future Foundation Working Paper, Boulder 2009.
Mansfield, Edward and Pevehouse, Jon: Democratization and International Organizations; International Organizations 60, 2006.
Moravcsik, Andrew: The origins of Human Rights Regimes: Democratic Delegation in Postwar Europe; International Organization 54, 2000.
Smith, Heather: The International Criminal Court and Regional Diffusion; Paper for the Fifth Pan European Conference on International Relations, San Diego 2003.
Articles and Sources:
Arab League Resolution on the decision of PreTrial Chamber 1 to the International Criminal Court against the President of the Republic of Sudan, Hassan Ahmad AlBashir, from 04.03.2009; unofficial CICC translation. (available at: http://www.iccnow.org/?mod=leagueofarabstates)
Egypt to join International Criminal Court , in: Almasry Alyoum English Edition of 19.04.2011. (available at: http://www.almasryalyoum.com/en/node/406224)
Global Security: Past Wars (available at: http://www.globalsecurity.org/military/world/war/past.htm).
Jordan dissents from Arab position on ICC warrant for Sudan’s Bashir, in: Sudan Tribune from 29.03.2009 (available at: http://www.sudantribune.com/Jordan-dissents-from-Arab-position,30619).
The Arab Coalition for the ICC urges the Arab Summit to ratify and accede to the Rome Statute, from 26.03.2008; unofficial CICC translation (available at: http://www.iccnow.org/?mod=leagueofarabstates).
The Green Party of England and Wales: Global Human Rights Index 2008 (available at: http://www.greenparty.org.uk/assets/files/reports/ReportHRI_-4-2.pdf).
Freedom House: Freedom in the World 2010 (available at: http://en.wikipedia.org/wiki/Freedom_in_the_World_%28report%29).
World Governance Index 2010 (available at: http://info.worldbank.org/governance/wgi/sc_chart.asp).