State Violence and the Law: Interview with Mona Rishmawi, International Commission of Jurists

By Metta Spencer

When the Secretary General asked for troops in Rwanda, the response was, "This is Africa. If they don't die of war, they'll die of genocide, AIDS, or famine. Why should we have our people killed for them?"

Mona Abdallah Rishmawi is a lawyer of Palestinian background who practiced law from 1985-88 in Ramallah, West Bank. She defended and litigated numerous human rights cases in military and civil courts. Now she works for the International Commission of Jurists (ICJ), a non-governmental organization based in Geneva that was established in 1952. Its basic mission is to promote the rule of law and the legal protection of human rights. It has 78 sections and affiliates throughout the world, and a Canadian membership of 500 outstanding judges and lawyers. Peace editor Metta Spencer talked with Rishmawi in Toronto recently.

Mona Rishmawi: The ICJ works with the United Nations and on the regional level to draft conventions and set standards on human rights protection. Many people think of lawyers as privileged people and think of the judiciary as a powerful institution. However, if you look at situations such as Rwanda, Ethiopia, Somalia, and Cambodia, the judiciary is ill-equipped to deal with conflict - because it is dominated by one political party or ethnic group, or because it does not have jurisdiction or resources, or because the public does not have confidence in that judiciary. In such situations people resort to violence. Therefore, those judges and lawyers who protect the independence of the judiciary and promote the rule of law are, I think, pillars of peace.

In 1995 alone, according to our documentation, 337 jurists in 51 countries were harassed and persecuted. There are other countries that we know very little about. For example, nobody knows what's going on inside Iraq. Actions against lawyers and judges range from violent acts - by governments, paramilitary groups, guerrillas, militias, drug traffickers - to much more subtle ones, such as removing judicial discretion in Nigeria and giving the military court jurisdiction over civil matters. There you find lawyers and judges tried before the military court and sentenced to long terms of imprisonment.

And there are situations where the executive branch of government tries to dominate the judiciary by limiting resources, so the courts are jammed and delayed. The public loses confidence in the judicial process and does not resort to justice. This works to benefit dictatorships. These techniques are used where those in power do not believe in resolving conflict in a peaceful way. In their own way, they are promoting state violence against civil society.

They will tell you in some countries, "What can we do? We have a problem with fundamentalists," or "We have a problem with separatist groups, and we have to have speedy justice. We have to have deterrent measures." But if you bring people to unjust courts that give death sentences which the population believes are murders, then people will rebel.

Metta Spencer: Do you have members in the former USSR?

Rishmawi: Yes, in a number of Eastern European countries. The issues are different there. These countries are struggling with the concept of the separation of power. Many of them have strong presidential systems - especially the former Soviet countries. At the same time their judiciary is trying to assert itself, and often you find a lot of tension. The judiciary says, "We have the power to review your action as a president." The president says, "I am above the law," and finds other ways to circumvent the situation. The separation of power is not deep in those societies and a lot needs to be done there.

Spencer: Your organization is also involved in promoting the creation of an International Criminal Court.

Rishmawi: Indeed. We need a global mechanism to look at any country in the world where crimes against humanity are committed, and say, "This is not acceptable. Humanity cannot go that low. That is not allowed." The mechanism is an old idea, but now it's gathering momentum. A permanent International Criminal Tribunal is becoming essential; one that is not selective, not political, not established by any political body - the Security Council or anybody else. We need to protect civilians in time of war, whether it's international or civil.

Spencer: How would you enforce international law and humanitarian codes?

Rishmawi: People refer to the "international community," but I prefer to refer to the United Nations. What we've been witnessing in Rwanda, or Burundi, or Yugoslavia, is that in these situations the international community did not exist.

In the case of Rwanda, when the Secretary General asked for the deployment of troops, the implicit response of some superpowers was, "My God, we are not going to get our people killed for the Rwandese! This is Africa. If these people don't die of war, they will die of genocide, or AIDS, or famine, so why should we have our people killed for them?"

We're trying to set some minimum code of behavior for everybody so we attain a true international community. The test is in situations of humanitarian emergencies: Can we translate our words into deeds? We must make enforcement an issue on the international agenda.

Spencer: Do the people devising the International Criminal Court have much prospect of creating an effective enforcement system?

Rishmawi: At the United Nations level the work is progressing in a good way. In 1993 the International Law Commission came up with a statute. A lot of the countries wanted to put it on a shelf, but obviously there has to be an international response to situations such as Yugoslavia and Rwanda. The members of the Security Council feel threatened by the creation of an objective mechanism that is not dominated by the Security Council. They want to control the initiative to respond in times of humanitarian emergencies and when crimes [against humanity] occur. The permanent five see it as their role to be the guardians.

Spencer: One question is whether the International Criminal Court will be able to take up only matters that are referred to it by the Security Council or whether it will be free to go wherever it needs to go. If it could only take things that were referred, that would mean that the permanent members retained a veto.

Rishmawi: If somebody is accused of giving orders for an illegal action - for example, if Saddam Hussein is accused of ordering aggression against Kuwait - if he personally (rather than the state of Iraq) is brought before a court, then somebody has to say he ordered aggression.

At present, the Security Council argues that, according to the Charter, in matters of international conflict, only it can say what constitutes aggression. In the opinion of the ICJ and most of the NGO community, that's not acceptable. Either the court will have to review the determinations of the Security Council, or aggression will have to be left out [of its jurisdiction] at this stage.

Spencer: What do you think will happen?

Rishmawi: These issues were discussed last year by the Ad-hoc Committee for the Establishment of the Court, followed this year by a Preparatory Committee. The issue before the General Assembly is whether we will allow the drafting of this text to go for another 50 years, or whether we will put a deadline on it.

Do states have the political will to draft a workable text for an International Criminal Court? You will find three types of states: the permanent five who are trying to stall the process; the other Western European countries and New Zealand, Australia, and Canada, and a number of Third World countries - South Africa, Egypt, Argentina - who think it is possible to finish this work by 1998; then you have a lot of states that are concerned about the complexity of the matters under discussion, which inhibits their participation because of the cost of bringing experts into the discussions.

The ICJ is calling for a fund to allow the developing countries to attend this kind of debate. It's important to have a universal view on these issues, and to enhance the ratification. What's the use of having a statute signed just by Norway, Sweden, Canada, and New Zealand? For the court to be effective in its mission, we need most of the United Nations' member states. I know that many countries - including, I hope, Canada - are interested in securing the participation of Third World countries in this process.

Peace Magazine Jan-Feb 1997

Peace Magazine Jan-Feb 1997, page 6. Some rights reserved.

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