By Habib Nassar

The task of the International Criminal Court is growing daily, particularly in the Middle East and North Africa. Consequently, the ICC must better communicate what is driving its actions in the region.
This is necessary for the institution to develop confidence in its capacity to act as a guardian of international criminal law.

In recent months, the ICC has intervened directly in the crisis in Libya. There is growing potential for its involvement in Israel and the occupied Palestinian territories, and in addressing crimes committed in Syria, Yemen and Bahrain, which ultimately may come under its jurisdiction. The court will also be affected by impending ratifications of the Rome Statute by Tunisia and Egypt.

International courts face enormous challenges in building a sense of ownership among the communities affected by their work.
This is due to numerous factors, including distance (both physical and cultural), use of languages and rules often unfamiliar to the people under their jurisdiction, and, most important, hostile rhetoric often employed by local opinion makers.

The International Criminal Court is no exception to these challenges, especially in the Middle East and North Africa, where its engagement requires a robust outreach effort.On May 16, the ICC prosecutor, Luis Moreno Ocampo, delivered the news of his application for arrest warrants against Moammar Gadhafi, his son Seif al-Islam, and the head of Libya’s intelligence services Abdullah Senussi on charges of crimes against humanity.
The charges relate to the attacks of Gadhafi’s security forces on demonstrators protesting against the Libyan regime since February.

Ocampo explained that the evidence he gathered “shows that civilians were attacked in their homes; demonstrations were repressed using live ammunition, heavy artillery was used against participants in funeral processions, and snipers placed to kill those leaving the mosques after the prayers.”
While the action of the ICC prosecutor was welcomed by all who support accountability for leaders suppressing their own citizens, questions emerged in the Middle East and North Africa, and beyond, about the criteria determining when the ICC gets involved.

Wide sections of the public in the region, including members of civil society groups promoting the rule of law, questioned how Gadhafi’s conduct differed from that of President Bashar Assad in Syria, President Ali Abdullah Saleh in Yemen, or the Al-Khalifa family in Bahrain.
One answer is that the Libyan situation was referred to the ICC by the United Nations Security Council. This is one of the mechanisms triggering the ICC jurisdiction that has not been applied thus far in the cases of Yemen, Syria or Bahrain.

The court can take over a matter only if the state where the crimes have occurred, or from which perpetrators come, accepts its jurisdiction; or if a case is referred by the U.N. Security Council acting under Chapter VII of the U.N. Charter to maintain or restore international peace and security.
Yemen, Syria and Bahrain are not parties to the Rome Statute, and it is difficult to believe that their rulers are eager to accept the ICC’s jurisdiction.

The ICC cannot control what the Security Council refers to it. All it can do is determine if there is a reasonable basis to open an investigation in the case referred.
Nor are Security Council referrals bereft of political considerations. The speed with which the body acted against Libya, like its deafening silence toward similar violence elsewhere in the Middle East, could create an impression that those dominating the Security Council will turn to the ICC only when this is politically convenient to their interests.

These actions threaten to expose the court to accusations, especially in the region, that it is engaged in double standards. This impression will not have been lessened by Ocampo’s lack of response to the Palestinian Authority’s January 2009 recognition of the ICC’s jurisdiction, a move intended to enable the court to investigate alleged of breaches of international criminal law committed during the 22-day conflict in Gaza and southern Israel in 2008 and 2009. The ICC cannot allow such perceptions to gain credence.

A recent conference on the ICC in Qatar and the resulting attention the court received in regional media can be viewed as a positive step. However, a more substantive and diverse engagement will be needed to achieve the desired degree of understanding and acceptance.

The ICC must establish a strong outreach presence in the Middle East and North Africa to disseminate information about its jurisdiction. It has to work with media and civil society groups in this regard as well.
The institution’s online presence must be broadened to the region and Arabic included as a language of communication on the ICC website. More than simply explaining the Rome Statute and distributing its digests and documents, the court needs to engage more.
Prior to the Qatar conference, senior ICC officials, including Ocampo, rarely visited the Middle East. Now is the time to do so more regularly, to demonstrate the ICC’s relevance to events in the region and dispel allegations of bias or politicization.

Involving prominent legal and academic figures from the region and elsewhere, who would be able to speak about the institution and provide analysis without the constraints of being ICC staff, could be a substantive step forward.
The role of civil society in this effort cannot be overemphasized. The Coalition for the International Criminal Court has worked with non-governmental organizations to lobby for ratification of the Rome Statute.
Calls for justice and accountability have been heard in Tunisia, Egypt and elsewhere. Tellingly, one of the first decisions of Tunisia’s interim government was to initiate ratification of the Rome Statute, while Egypt has announced a similar intention.

If the ICC is to engender trust and relay a strong message that there can be no impunity for crimes against humanity, it has to clearly communicate what makes it act in one situation and not in another.
The institution has a responsibility to explain to its potential constituents what factors drive its key decisions, what the court’s reach is and where it stops. This will greatly help the ICC’s credibility in the Middle East and North Africa and bring clarity to a debate polluted with allegations of double standards and politicization.

Habib Nassar is director of the Middle East and North Africa Program at the International Center for Transitional Justice. He wrote this commentary for THE DAILY STAR.