Thursday, June 26, 2014

Iran and the International Criminal Court

The question of Iran’s interest in joining the International Criminal Court (ICC) is being presented again by its new policy of greater openness to the rest of the world and its current dealings with the west. AMICC constituents may as a result encounter this development in their advocacy. Iran has publically voiced its support for the Court numerous times and could benefit from ratifying the Rome Statute. Iran vigorously participated in the negotiations of the Rome Statute and is a signatory. In the 2010 ICC Review Conference in Kampala, Iran sent a delegation to participate and once again expressed its support for the Court.

For the first time in decades, political channels between Iran and the United States are open. While the two countries work towards finding a solution to Iran’s nuclear program, the international community now watches to see if the unlikely duo will cooperate to combat the Islamic militant group in Iraq.  Despite its faults, Iran is a relatively stable country in a region marked by chaos.  In recent history, Iran fell victim to war crimes committed by Saddam Hussein, it has long felt that he was not held accountable for his crimes. Today, Iran faces another threat by an extremist Sunni militant group.  Ratifying the Rome Statute would aid in preventing impunity for crimes that this group is committing.

Participation in the Court would also serve another new Iranian goal: acceptance internationally as a responsible country. If Iran truly desires to productively participate in international relations, it must demonstrate to the world that it is trustworthy. Mohammad Javad Zarif, Iran’s Minister of Foreign Affairs, described President Rouhani’s policy as one that “values accountability, transparency, and honesty in dealing with the populace and implies a willingness to reform and improve existing policies.” Becoming a member of the Court would aid in accomplishing such a goal by making its peaceful intentions clear. However, if Iran were to join the Court, the country would thereby accept the Court’s jurisdiction which would hold it accountable for the crimes it commits. 

In 2017, the Court is likely to acquire jurisdiction over the crime of aggression. Iran has repeatedly voiced its support for the inclusion of the crime of aggression in the Court’s Rome Statute. Officials from both the Ministry of Foreign Affairs and the Judicial Power have described crimes of aggression as “the most important international crimes.” During the Iran-Iraq war, which Iran considered a war of aggression, Iraqi forces killed at least 300,000 Iranians and injured more than 500,000. Despite multiple pleas to the United Nations Security Council (UNSC) by the Iranians, the UNSC never found that Iraq had started a war of aggression. Iran’s support for the ICC’s jurisdiction over the crime of aggression is the result of its resentment of Saddam Hussein’s impunity. Had such a court been available to Iran, it would not have had to rely on the UNSC for justice.

Today, Iranians worry about the threat of another war. Predominately Shia Iran fears the Sunni extremist group, the Islamic State of Iraq and Syria (ISIS), which violently opposes Shi’ism. ISIS is waging war against Iran’s ally Syria, as well as unraveling the Shia Iraqi government. Iran has sent officers, including the head of Iran’s paramilitary force, to aid the Iraqi government. Despite their differences, Iran naturally wishes to support its Shia neighbor Iraq. With a threat of war, Iran may well want to have access to a court in a position to punish those who conduct this war.

Negotiations between Iran and the west are both productive and tense. The west’s concern about Iran’s nuclear program results from the west’s lack of trust towards Iran. Sam Sasan Shoamanesh, Senior Special Assistant to Prosecutor Fatou Bensouda, believes that Iran’s ratification of the Rome Statute may be a solution to the west’s distrust. Shoamenesh explained, “ICC ratification would not only clarify Iranians intentions . . . but would also present a clear disincentive for potential malfeasance and concomitant legal accountability in the event … of crimes falling within the Court’s jurisdiction.” Opening itself up to the Court’s jurisdiction would demonstrate that Iran is serious about becoming an active member in the international community- and one who understands that it will be held accountable for failing to play by the rules.

As previously mentioned, high ranking officials inside Iran have voiced their support for the country’s ratification of the Rome Statute. The question remains whether or not those who hold the power to ratify the Statute would consider doing so. The international treaty ratification process in Iran is at least as demanding as it is in the US. The President signs international treaties with the approval of the Majles, Iran’s unicameral legislature. The Majles is composed of 290 elected members. Unfortunately, the democratically elected Majles is limited by the Council of Guardians, which consists of a 12 member body of jurists. Half of the jurists are appointed by the Supreme Leader and are experts in Islamic Law. The Council reviews and determines the constitutionality of all legislation. Furthermore, the Supreme Leader may block the Majles legislation with a state order. Because ratification can be blocked by both the Council of Guardians and the Supreme Leader, ratification of the Rome Statute would require Iranian policy makers at all levels to be on board with joining the ICC.

A further complication arises in respect to Iranian domestic law. The Iranian government interprets and enforces criminal law very differently than the ICC, and “there is no correspondence between its [Iran’s] judiciary and international standards….” The Iranian government is wary of participating in the ICC because it does not apply Sharia Law, Islamic law. However, this has not been an obstacle for many Muslim nations, such as Jordan and Indonesia. These countries can aid Iran in accepting the ICC’s jurisprudence.  

Another challenge to Iran joining the Court is that Iran’s current policies may result in serious charges of human rights violations. Furthermore, Iran would have to change its domestic laws to meet the human rights standards “enshrined in the ICC Statute.” Violence and deaths following the elections of 2009 attracted international condemnation. There appears to have been a systematic policy of violently putting down peaceful post-election protests. Certain groups, such as the Baha’is, Sufis, Mandains, have been subjected to extensive and violent repression. In addition to its domestic policy, Iran’s foreign policy makes it susceptible to charges at the ICC. Particularly, it supports Hezbollah which is almost certainly responsible for extensive crimes against humanity.

These policies indicate that Iran could face charges of crimes against humanity if it were to join the ICC. However, the Court’s jurisdiction is not retroactive, meaning that Iran cannot be tried for crimes committed prior to ratification. Therefore, if the Iranian regime moves in the direction that both President Rouhani and Javad Zarif aspire to, then Iran could ratify the Statute without fear of prosecution if it avoided future crimes.
As Iran attempts to achieve international acceptance as a responsible country it may decide to either use the Court on a case by case basis, or to join it. On one hand, Iran wants the respect of other states and their help in dealing with potential crimes committed against Iran. On the other hand, Iran’s current policies continue to violate human rights law. If Iran joined the ICC it would demonstrate that Iran is trying to resolve this conflict of positions in favor of the positive side.

Written by Lailey Rezai

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