Why The ICC Should Speak Out on Iran

Recent images of brutality and suffering in Iran have again brought to the forefront an on-going global debate -- balancing the doctrine of state sovereignty with today's increasing recognition of universal human rights.

Reaction of political leaders from around the world have run the spectrum from either roundly criticizing the regime's brutal crackdown on civilians to alternatively pronouncing it is a matter of internal sovereignty and that no outside state or institution has proper grounds to comment. However, one international institution, whose very existence is premised on the principle that certain non-negotiable human rights trump state sovereignty has been noticeably silent -- the International Criminal Court.

Recently, a petition was signed by nearly 200 lawyers and other practitioners in the field of international humanitarian and human rights law, including Iranian human rights lawyer and 2003 Nobel Peace Prize winner Shirin Ebadi, requesting the Prosecutor of the International Criminal Court to comment publicly on the situation in Iran . The petition simply asked the Prosecutor to remind all individuals that no matter if their state is or is not a member of the Court, all individuals are still under a legal obligation to not violate international humanitarian and human rights law. The petition is premised on the belief that the International Criminal Court, and specifically the Prosecutor, does and should always remind the world that whether it is in relation to Iran or any other state, all individuals must abide by human rights law, regardless of that state's relationship with the International Criminal Court.

Why does this matter? Of the many criticisms levied against the international community's efforts to promote accountability, perhaps the most pervasive critique is a rather simple one -- the lack of consistency. There is a perception that international justice applies only to some. This has been an issue for all of the various war crimes tribunals constituted in relation to the situations in the former Yugoslavia, Rwanda, Sierra Leone, East Timor and Cambodia and now most recently the permanent International Criminal Court in The Hague. Misinformation about how these institutions were created and how they actually work in practice has allowed some to manipulate public perception by castigating international judicial institutions as political tools. This occurred in the US, when certain politicians painted the International Criminal Court as some "UN new world order" mechanism to target the US . This occurred in relation to Sudan as opportunistic leaders have depicted the same Court as some neo-colonial tool designed to interfere with internal African affairs. It has occurred in relation to the other tribunals where spreading misinformation has suited the respective protagonists. And unfortunately, it works.

Part of the reason why some political actors are successful at obfuscating the work of these institutions, including the ICC, is because the institutions themselves rarely counter this rhetoric publicly. This is why establishing a pattern now is a must. While the old notion, "no one is above the law" is taken for granted in developed domestic legal systems, it simply has not seeped into global public awareness in respect to international human rights law. No matter the politics, no matter the players, it is time for the proponents of human rights law to start establishing a pattern of consistency and repeating one simple truth -- basic human rights are non-negotiable. And today, the one international institution that can potentially promote this principle regardless of political considerations is the International Criminal Court.

For the prosecutor to speak out now on Iran is neither premature nor inappropriate. The limited information available suggests that the regime has extensively employed an untrained quasi-militia group known as the Basij to target unarmed civilians. And there is no indication the violence has stopped, rather more ominously, it has moved behind closed doors, or rather prison walls, potentially in the form of targeted arrests and torture. These recent developments have even prompted ten Nobel Laureates, including former South Korean President Kim Dae-jung and South African Bishop Desmond Tutu, to write to the Secretary General of the United Nations.

How far the regime is willing to go is anyone's guess. But speaking out now is essential, before the world does find out how bad the situation in Iran really is. For the citizens of Iran it is a reminder the world may someday do more than simply express remorse about their suffering. And to the more pragmatic members of the regime, it may even be a deterrent, checking its worst impulses before they occur. While the regime will predictably chafe at any comments from the outside, that should not stop the Prosecutor from reminding individuals that if they go too far, some day, somewhere, there will be consequences. In short, an urgent message is needed to the regime and the world at large -- no one is above the law.

Christopher Santora currently works in The Hague as a prosecuting attorney for the Special Court for Sierra Leone. Gissou Azarnia currently works as a defense attorney in The Hague at the International Criminal Tribunal for the Former Yugoslavia. The petition link is here.