Editorial | Jamaica and the International Criminal Court

Mark Golding’s pledge to take Jamaica into the International Criminal Court (ICC) if his People’s National Party (PNP) forms Jamaica’s next government deserves a fulsome response from the Holness administration.

For the Government may have compelling reasons, which are not immediately apparent to domestic proponents of the ICC, including this newspaper, for its failure, during its more than nine years in office, to ratify the Rome Statute. Moreover, there is the fact that Jamaica sticks out as the only independent member of the Caribbean Community (CARICOM), other than The Bahamas, that is not a member of the court.

As The Gleaner has reminded in these columns more than once, the idea of the ICC in its current form – a standing court to try individuals accused of genocide, crimes against humanity, and war crimes when domestic courts are either incapable or unwilling to do so – has its genesis in a 1989 speech by a former Trinidad and Tobago prime minister, A.N.R. Robinson. So the ICC has the Caribbean and CARICOM in its DNA.

However, the notion of the universality of justice and an international mechanism for dealing with the most heinous crimes did not start with Mr Robinson. Indeed, the idea was floated after the First World War and was given full expression in the Nuremberg trials of Nazis after Germany’s defeat in World War Two.

PLAYED KEY ROLES

Moreover, Caribbean nationals have played key roles in courts of the kind. For example, Jamaica’s Patrick Robinson, recently a judge on the International Court of Justice (ICJ), was, before his ICJ appointment, a judge on the International Criminal Tribunal for the former Yugoslavia. He sat on the case of the former Serbian president, Slobodan Milošević, who was charged for crimes against humanity and ethnic cleansing during the Balkan Wars. Mr Robinson also served as president of the tribunal.

Dennis Byron, the former president of the Caribbean Court of Justice (CCJ), served on the International Criminal Tribunal for Rwanda (ICTR), which tried people accused in the Rwandan genocide. Sir Dennis served two terms as the president of ICTR.

There has been renewed focus on the ICC over the past fortnight for the speed with which the Philippines government dispatched the country’s former president, Rodrigo Duterte, to The Hague to answer charges of crimes against humanity for allegedly ordering the extrajudicial killing of suspected drug dealers during his government’s ‘War on Drugs’. The ICC maintains that it has jurisdiction in the matter although the Philippines withdrew from the court in 2019. That is because the alleged acts took place while the Philippines was a member of the ICC.

Manila’s action against Mr Duterte was in stark contrast to Israel’s rejection of ICC arrest warrants for its prime minister, Benjamin Netanyahu, and former Defence Minister Yoav Gallant, for alleged war crimes in Gaza. The United States, which, like Israel, is not a member of the ICC, has placed sanctions on the court and its officials for their stance against its ally.

The alacrity with which the Philippines acquiesced to the ICC’s request is particularly significant given that developing countries, especially African states, often complained that the court appeared to target leaders of poor countries while developed economies’ leaders generally got a free pass.

EARLY SIGNATORY

Jamaica was an early signatory to the Rome Statute in 2002, the year the treaty came into force and four years after its adoption. But until Mr Golding’s recent promise that a new PNP government would ratify the treaty, it took 13 years, as we noted in 2019, before a Jamaican official next publicly spoke about the island’s position on the court.

In 2015, Mr Golding, then the justice minister, claimed that the administration was fast-tracking legislation for accession to the court.

It is not clear if that legislation was ever drafted and why the current administration, in office since 2016, has not advanced Jamaica’s accession to the ICC.

Not surprisingly, the Opposition has given the Government’s posture a negative interpretation. In his recent contribution to the Budget Debate, Mr Golding said: “As a small island developing state, Jamaica depends on the rule of international law. We will complete the long-outstanding process of enacting legislation to enable Jamaica to accede to the jurisdiction of the International Criminal Court. It is a missing element in the current accountability framework for those who abuse power in this country.

“As minister of justice, I started that process over a decade ago. Again, it has been abandoned by this Government.”

It may be, as Stephen Vasciannie, professor of international law at The University of the West Indies, Mona, surmises, that Jamaica believes that the ICC is a good concept that has been badly executed, thus “failing to bring the truly culpable to justice”. So the island has been in wait-and-see mode.

However, as Professor Vasciannie noted in an article in this newspaper, “If Jamaica remains outside the treaty regime, other countries may legitimately wonder if we are firmly committed to the international effort to apply criminal law justly to wayward leaders and followers.”

That is why the Government should speak.