The world today is faced with threats, challenges and problems that cannot be resolved by individual nations. Such challenges pertain to violation of human rights, international terrorism, wars, environmental degradation and poverty issues which have to be addressed at the global level. The occurrence of a large number of events in this regard has triggered extensive anxiety and ramifications throughout the world thus underlining the serious apprehensions for global governance. This paper will delve into global governance issues pertaining to public accountability and the challenges imposed by developments and innovations in global governance. The relevant debates in this regard will be examined that influence politics and international relations while exploring important and crucial questions that have a bearing on bringing about a legitimate and viable system of global governance.
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In this context it will be pertinent to analyze the extent to which leaders who influence global public policies are responsible in answering to those who are affected by their decisions and actions. This is so because it is the leaders in any country that decide the course of public policies and their effective implementation for the welfare of citizens. They are leaders in the country because of the support they enjoy from the majority and hence it is their moral duty to keep up with their expectations. This aspect is directly related to the issue of jurisdiction of the International Criminal Court in relation to international criminal proceedings since any leader cannot be allowed to practice inhuman practices on the people. He has no right to deny them the basic human rights and justice deserved by humanity. If the leader does engage in crimes against humanity it becomes the duty of the world community to bring him to justice. There is thus need to examine the perspective of enabling the ICC to exercise more power and authority over the leaders of different countries. Recent international issues will also be examined such as the issue of arrest warrant against Sudan’s President Omar al-Bashir, by the International Criminal Court.
During the last few decades a visible pattern has emerged whereby the conventional mechanism of governance has started to destabilize and new governance systems have emerged. The changes have happened in almost all spheres including private and public as also the national and global levels which have brought about extensive changes in the style and capacity of governance. Such changes have become the subject matter of different studies but all such literatures and disciplines have something in common from the perspective of governance. All research done in regard to governance lead to the conclusion that there have been shifts in governance at different levels and sectors of the society. Most of the complications in governance happen due to changes in the traditional structure of the national institutions.
The history of governance in the last century can be seen as a continuous shift pattern between government and governance which is largely influenced by the changing perceptions between civil society and the state. According to Stoker (1998, pp. 22), community associations have been evolving in the past few decades in creating associational democracy, although there is no certainty whether such communities represent all sections of society. There is, however, a need to see such associational and representative democracy systems in being more effective for local governance. The implementation of guidelines, recommendations and policies in regard to global governance is not entirely the responsibility of the local or central governments but the process has to be introduced by way of horizontal and interactive networks that should be reliant on interdependence, trust and negotiations. Such efforts should include different actors such as “quasi non-governmental agencies, inter-organizational networks, public-private partnerships and quasi-markets” (Mazza, Quattrone & Riccaboni, 2008, pp. 115). Global governance can be legitimate only when a significant basis for external accountability is adopted in the long term, because restrictions have to be imposed on powerful nations and organizations which frame the conditions of governance. It is required that powerful states such as the USA should adopt for themselves certain degree of accountability even though they may not be inclined to do so.
Crimes that are characterized as being in the nature of genocide, war crimes and crimes against human beings can hardly ever be carried out without the active role and consent of the concerned governments. It is well known that crimes by the Khmer Rouge, Nazis, faction of former Yugoslavia and the 1994 caretaker leadership of Rwanda, as also several others were perpetrated at the instance of state policies and authority. Such acts of commitment by governments pose a serious problem in the implementation of the international laws to prohibit such astonishing crimes, the need for which does not arise in respect to other matters of law enforcement. Governments that have a hand in committing such crimes will never take initiatives in bringing the guilty to book, and it is for this reason that the law pertaining to such crimes becomes very difficult to be effectively implemented. There are thus very few means available for international law enforcement authorities to bring the guilty to justice.
Such circumstances create complications in ascertaining the jurisdiction of international criminal systems and the question arises as to how such jurisdictional structures can be designed so that there is circumvention and obstruction to the perpetrators, while at the same time maintaining the legitimacy of the judicial machinery. In this context, there are two mechanisms of jurisdiction which are put forward in finding solutions to such problems. One is universal jurisdiction and the other is jurisdictions pertaining to the International Criminal Court (ICC). These jurisdictions place power in prosecuting authorities in governments that are implicated in the stated crimes.
When external authorities are given powers and authority to prosecute perpetrator regimes, their strength in shielding perpetrators from justice is considerably reduced. This paper will focus on the International Criminal Court in examining its role in being an example of democratic global governance, especially in the context of the broader dilemmas relating to some identified issues. Essentially global governance is concerned with enabling multi lateral solutions in the present environment of challenges and threats. An evaluation of the democratic accountability of the International Criminal Court will be done in regard to the recent issue pertaining to the news that “The International Criminal Court has issued an arrest warrant against Sudan’s President Omar al-Bashir”. The role of the ICC will also be examined in terms of its jurisdictional structure pertaining to the theme of democracy and punishment.
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On 4th March 2009, the International Criminal Court issued an arrest warrant for arresting Omar Hassan Ahmad Al Bashir, President of Sudan, for having committed war crimes and crimes against humanity (Hold the Handcuffs, 2009). He has been charged with being an indirect collaborator in perpetrating attacks against civilian people in Darfur, Sudan, whereby inhuman acts such has murder, extermination, rape and torture have been committed against the population of Darfur. He has also been accused of looting the property of people and forcing hundreds of thousands of people to flee from their homes in seeking safety for their lives. This is the first time ever that an arrest warrant has been issued by the ICC against a sitting Head of State.
As per the judges of the International Criminal Court, the crimes by Omar Al Bashir and his government were supposedly committed during a period of five years when the Sudanese government went on a counter insurgency campaign against the Justice and Equality Movement (JEM), Sudanese Liberation Movement and other groups of armed insurgents who opposed the government in Darfur. The violent and bloody campaign by Omar Al Bashir was carried out after the El Fasher Airport was attacked by insurgents in April, 2003. The violent and bloody campaign lasted until an application was filed in July, 2008, at the International Criminal Court for the arrest of Omar Al Bashir.
However, Omar al Bashir has rejected the arrest warrant issued against him by the ICC and called it a plot by the West in trying to target the oil and gas reserves of Sudan (Pflanz, 2009). Omar Al Bashir subsequently expelled most of the international relief organizations from the country which has caused severe food and medicine shortages in Darfur. However experts feel that the war crime charges against Bashir are unlikely to reduce his power and may further worsen the situation in Sudan. The dictator cannot possibly be arrested in his own country and only if he visits a foreign country, there could be chances of his being arrested, which too is considered to be quite bleak. The best impact of the ICC arrest warrant could relate to its being used as a bargaining tool with Bashir’s Chinese and Arab allies. The terms of the ICC permit the Security Council to postpone the prosecution by one year, which can also be further renewed, and this move will be pursued by China and the Arab League.
In considering the role of the International Criminal Court, its jurisdictional structure does pose tension between its democratic accountability and the legal accountability of the perpetrator of the crime. There are many countries which are not party to the ICC Treaty, just as Sudan is, but the ICC can exercise its jurisdiction over such states as well with the help of the signatories to the Treaty. However, in finding such a solution, there is a deep democratic dilemma. The ICC was envisaged to be a permanent international judicial court with authority over crimes against humanity, war crimes and genocide. A complementary regime governs the relationship between the ICC and judicial systems in different states as provided for by the Rome Statute. Under the existing systems, the ICC is to exercise its jurisdiction only in the event of states being unwilling or unable to act.
If the crime occurs in a country that has signed the ICC Treaty, the person can be prosecuted even if his state of nationality is not a signatory to the Treaty. Thus, the ICC has jurisdiction over countries that are not signatories to its Treaty. However, this aspect has come to be heavily criticized on account of the heated controversy that has arisen in regard to its jurisdiction. There is a lot of difference between the human rights embodied in human law and the right to human rights that accrues on account of democratic governance. Hence under the complementary system, the ICC in being an international institution can even prosecute individuals without taking consent from their country of nationality.
In case of the arrest warrant issued for President Bashir, ordinarily he would benefit from the immunity enjoyed by heads of state as granted by international law. (Blair, 2008) Sudan is not a signatory to the Treaty pertaining to the International Criminal Court and unless the prosecution is initiated by the Security Council, Bashir may be granted immunity. Although the Rome Statute gives the right to Bashir to assume innocence, it does impose an obligation on the state to assist the ICC within its own territories. It is in this context that the issues pertaining to global governance become challenging since the issue of an arrest warrant against Bashir entails a whole set of reactions in the international community. It raises the temperature providing impetus and added arguments for those who seek to safeguard the life and interests of vulnerable people in Sudan. Ironically, although the ICC has issued the arrest warrant against President Bashir, it is dependent on the Security Council in having the arrest warrant executed. This is so because the prosecutor and the ICC are now at the mercy of the Security Council which can use the basis of Resolution 1593 which empowers it to enforce the arrest warrant..
Sudan is certainly not a failed state and it has responsibilities to fulfil. The country must respect international law and the resolutions of the Security Council. The civilization of Sudan is very old and the country has a sophisticated set up. There has to be a solution in making compliance of the arrest warrant and if it is not executed by Sudan, President Bashir risks being arrested whenever he visits another country, because the authorities in countries that he visits will be bound to honour the arrest warrant and execute it as per provisions of international law. A movement has been set in motion by Amnesty International and other international NGOs to enhance the power of the International Criminal Court by campaigning and urging countries to sign up in fully implementing the Rome Statute uniformly throughout the world (Schabas, 2008). It is pertinent to understand that a global system of governance that is defunct of a global government must have judges and rules that are respected. It has to be also understood that the global community does not have to limit itself to nationalities but more importantly, values have to be created that match the initiatives and goals of organizations such as the International Criminal Court.
The case of President Bashir has assumed significant importance in the African continent also and human rights campaigners expect a bold step to be taken by the prosecutor of the International Criminal Court, which will considerably enhance its credibility in standing up to meet its objectives of settling issues that have far reaching implications for democratic global governance. By taking a tough stand in making independent decisions, the ICC will set an example in making the world realize that there is no impunity for crimes, whether the charged individual is a head of state or from any other background. It is required from institutions such as the ICC that the confidence of the international community be strengthened so that people confidently stand up for justice and human rights for victims, no matter what the consequences or difficulties may be. Adopting such a pattern would alter the course in making the world to irrevocably change for the better. By taking an appropriate decision in the matter of Darfur, victims will get solidarity and hope, and by indicting Bashir there will be increased confidence in the process of realizing peace, democracy and human dignity. It is indeed the responsibility of the ICC, which must examine the available evidence and take a decision whether the accused deserves to be indicted.
It is known that Sudan is not a signatory to the ICC Treaty, so the big question arises as to what is the democratic basis for the ICC to initiate action against people whose countries have not given their consent for action to be taken against them. The ICC has to be provided with governmental authority. It will punish and prosecute individuals in using the authority and powers of an international judicial body. But there has to be democratic connection between the establishments of governance and governed. All citizens of countries that are signatories to the ICC Treaty are automatically represented through their respective governments but the claim made by ICC of maintaining democratic legitimacy and accountability is broken in the case of individuals whose states are not signatories of the ICC Treaty. There is thus no democratic basis for the ICC in applying its authority over such people and the reasoning given by ICC in this regard pertains to taking action against such individuals only if their states fail to do so. In essence, the authority of ICC is considered to be fairly limited unlike that of WTO, because the ICC is not expected to make laws and policies. Instead, its prime mandate relates to applying clear and undisputed perceptions in regard to international law. Nobody denies that crimes against humanity, war crimes and genocide are crimes; hence there is no need to discuss at length and to decide whether they are democratic or undemocratic.
The reasoning here becomes complex because although it is true that imposing preventive measures against crimes against humanity, war crimes and genocide cannot be questioned, application of the law becomes very complicated and politically motivated. There will be several debates and questions in regard to the interpretation and content of the law. There are also enormous questions in regard to global democracy in relation to the practices of the United Nations. The questions that arise relate to the largest scale on which democracy is possible and whether there is a significant demonstrable political system at the international level. It is however clear that the issues within the purview of the ICC are not of lesser importance.
Nations have to make a strong choice in the context of whether they wish to participate with the ICC. In essence the ICC Treaty aims to make progress in fulfilling its accountability in holding responsible the perpetrators of crimes against humanity, war crimes and genocide. But this is possible only at the expense of the democratic legitimacy of the International Criminal Court itself. The two primary values that come in conflict here pertain to the human right to representative government and the human right to freedom from violent abuse. It is important that none of these fundamental values should be sacrificed in any way. There is no basis to tolerate the suffering and abuse of innocent children, women and men, nor the fading away of democratic governance. The two are inter-related because ultimately it is the fading away of democratic values that lead to incidents of violent abuse. It is not possible to resolve such dilemmas just by way of negotiations, but one has to struggle and come out successfully with the double fold demand for democracy and justice in an emerging global system.
The way forward to bring about effective global governance is to first set plausible standards so that all actors can effectively engage in the process of democratization which also includes credible political conduct and good parliamentary functioning. To achieve such a state it is imperative to first identify the values, paradigms, and the general beliefs that are essential for democratic societies. Civil Society Organizations must have a convincing say in the democratic set up so that governance works with people. Standards of democratic governance and anti corruption measures have to be in place so that like minded countries can commence meetings in efforts to promote democratic governance.
Global governance can be effective only if the powerful states are held responsible for the developments in world politics. More of multilateral and civil society governance is required which will reduce the clout that the powerful countries enjoy in acting as they please in different international situations. To make such efforts successful nations will have to initiate action in collaboration with each other. There is need for different sectors of the civil society, market, and nation to coordinate effectively with each other in making a success of global governance. It is essential to bring good global governance so as to resolve the complex issues. The actors must have the ability to be visible to the public and have the willingness to be truthful to power. If coalitions can be formed that make powerful functionaries to understand and take appropriate action, governance issues can be resolved to a great extent.
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