By Yasser Latif Hamdani
May 18, 2015
The Pakistani state should ratify the Rome Statute, which creates the International Criminal Court (ICC) at The Hague. Even though Pakistan was one of the 120 states that had voted to create an ICC in July 1998, it has failed to either sign or ratify the Rome Statute. Perhaps it is time for the country to reconsider its stance. Given the increasing number of accusations against both state and non-state actors about human rights violations, the state’s legal system has often been found inadequate in dealing with either carrying out a free and fair investigation in the matter or has been rendered irrelevant.
A fair and impartial judicial process like the ICC has benefits not just for the alleged victims but for alleged perpetrators as well. It can separate the grain from the chaff and ensure that one gets to the truth behind allegations of genocide, ethnic cleansing and other crimes against humanity individuals or groups are accused of. The only people who are afraid of the ICC are those who have skeletons in their closet. India, for example, will never accept the jurisdiction of the ICC given its heavy handedness in parts of that country including Kashmir and Nagaland. Are we going to always merely follow India as we have always done or do we aspire to be a more humane, tolerant and progressive society than them? Perhaps that is the real problem. Perhaps everything we do is predicated on whether India has done it first. This approach has always hurt us. The basic structure theory that now plagues our constitutional thinking has been borrowed from India. Our notions of sovereignty and federalism are heavily influenced by the Indian school of thought both in law and foreign affairs. All in all, following India blindly has led us into a dark alley in all legal and constitutional matters.
The Rome Statute opens up a new vista. It defines crimes against humanity as murder, extermination, enslavement, deportation or forcible transfer of the population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible, or any crime within the jurisdiction of the court, enforced disappearance of persons, the crime of apartheid, other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. In this definition of particular interest to Pakistanis is the “persecution against any identifiable group”. The Pakistani state has often been helpless against systemic legal and social persecution against certain groups (like the Ahmedis) in the country. Having an overarching international statute governing the state will help the Pakistani state apply to the ICC to resolve issues it is either unwilling or unable to tackle on its own. As Pakistanis we need to face up to the reality: our human rights record is abysmal and we have willingly or unwillingly become party to some of the most outrageous crimes against humanity in recent times. By accepting the jurisdiction of the ICC, not only will we ensure that much of these wrongs are rectified but will also ensure that all accused have a fair shake when it comes to being adjudged for their crimes.
The advantages of signing on to the ICC for Pakistan far outweigh the disadvantages. No doubt, a number of individuals in Pakistan will become candidates for being tried for crimes against humanity as they rightly should. These may include people from various political parties to even individuals within Pakistan’s feared deep state. However, it will also mean that Pakistan’s institutions, both civilian and military, will have to hold themselves to a higher human rights standard than before. It will also allow Pakistan a say in the running of the affairs of the ICC including the appointments of judicial officers at court. Pakistan, it must be remembered, also contributes one of the largest contingents to peacekeeping missions around the world. Therefore, by not signing on to the ICC we are exposing our troops to its jurisdiction without having a say in how the court adjudicates such cases. Becoming part of the ICC gives a state added protection against aggression on its soil. The Palestinian Authority is the latest member of the ICC and the decision of the Authority to ratify the Rome Statute has been nothing less than a nightmare of the occupying power, i.e. Israel. Now Israel will have to think twice before carrying out the kind of attacks against Palestine that it did last year. The ICC has already begun looking into possible breaches by the state of Israel in Gaza. If Pakistan was a member of the ICC it could in theory bring a case against Indian shelling of villages along the Sialkot border for example.
The idea of a global human rights court like the ICC is the wave of the future. Sooner or later, try as the powerful offenders may against it, its jurisdiction will cover the entire world. All but 44 countries around the world have signed on to the Rome Statute. The 44 countries that have refused to either sign or ratify the instrument are amongst the worst offenders of human rights and international law. Do we as a nation wish to remain on that ignominious list of human rights offenders? No, we should ratify the Rome Statute and boldly say to the world that we have nothing to hide and that we will stand proud in the comity of nations as a responsible member, a member that respects human rights and that does its utmost to ensure that rule of law prevails in our borders. That is the Pakistan we must aspire to and that is the Pakistan we must have.
Yasser Latif Hamdani is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address firstname.lastname@example.org