Morocco and the International Criminal Court: balancing national and international law

It has been twelve years since Morocco became a signatory to the Rome Statute, the founding treaty of the International Criminal Court (ICC), the world’s first permanent international court to prosecute war crimes, crimes against humanity and genocide. During this time, Morocco has continued to move forward in its commitment to upholding the rule of law and universal human rights, but to date it has not completed procedures necessary to become a state party to the Court.

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Each month, as part of its Universal Ratification Campaign, the Coalition for the International Criminal Court — a global network of over 2,500 member NGOs in 150 countries, campaigning for a fair, effective and independent ICC — calls upon certain countries to ratify the Rome Statute and become members of the Court. Morocco is one of the countries selected as a focus for 2012.

Drawing upon the tolerant precepts of Islam, national cultural values, and international commitments, Morocco has made clear its commitment to the primacy of law and good governance. Justice reforms now underway are slowly bringing national legislation in line with the Rome Statute. Recent amendments to the constitution and penal code underline Morocco’s ambition to ratify the Statute and are preparing the ground to ensure universal acceptance of the ICC. Furthermore, the newly-adopted constitution marks an unprecedented change by declaring the country’s adherence to universal human rights as well as by affirming the preeminence of international law over national legislation, as outlined in article 11 of the new text. Although the term “impunity” is not mentioned, crimes against humanity, genocide and violations of human rights are condemned poignantly.

In my capacity as the Coalition’s new regional coordinator for the Middle East and North Africa (MENA), I spoke recently with several government and civil society stakeholders in Morocco’s capital, Rabat. I wanted to hear first-hand their insights, impressions and aspirations related to the ICC and learned that there is a general fear of the politicisation of the Court which could lead to double standards and loss of credibility. My interlocutors stressed that the situations in Palestine and Iraq had not been examined adequately by the ICC and that both were serious causes of concern in the region. My immediate response to this was to explain that the Court can only act if the state in which the crimes have occurred — or from which the perpetrators come — accepts the jurisdiction of the Court, or if a situation is referred by the UN Security Council acting under Chapter VII of the UN Charter. The Court does not and cannot control what situations are referred to it from the Security Council; it can only determine if there is a reasonable basis to open an investigation in case of a referral.

Why Should Morocco Ratify the Rome Statute?

Ratifying the Rome Statute would be consistent with the commitment of the government of Morocco to uphold human rights as enshrined in the newly-amended constitution. The Moroccan criminal justice system must meet new challenges based on a changed international environment. The police, prosecutors and legal framework must become scrupulous actors in observing evolving standards of human rights and accountability. Equally important, the existing legal framework should be examined to ensure that national legislation conforms with the provisions of the Rome Statute. The ICC must also communicate its mission more effectively to the public in Morocco if it is to garner acceptance of its capacity to act as a guardian of international criminal law. The role of civil society is critical in this effort to promote awareness of the Court, increase media coverage, and dispel allegations of bias and politicisation.

Delegations from states in the MENA region were significant actors in the Court’s founding. They offered important support at the 1998 Rome Conference by backing a fair, effective and independent ICC, to ensure that when the conditions for jurisdiction are met, the ICC judges and prosecutors are independent of political control. Jordan in particular — it ratified the Rome Statute in 2002 — has played a leading role in establishing the Court through its presidency of the Assembly of States Parties, the ICC’s governing body, from 2002 to 2005.

Moving Forward

In Morocco, key stakeholders have been calling for the adoption and implementation of concrete measures that make governance systems more transparent, accountable and effective, and which combat impunity through the echelons of government. The Court represents just that. In the words of ICC President Judge Song Sang-Hyun: “Everywhere, people want peace, justice, rule of law and respect for human dignity. The ICC is the gathering of nations in a community of values and aspirations for a more secure future for children, women and men around the world.”

At a time when the ICC is expanding its important work to end impunity for genocide, crimes against humanity and war crimes, Morocco should take part in this global justice movement by ratifying the Rome Statute. Such a move will motivate more North African and Middle Eastern countries to join the Court, to gain a stronger voice within the world of global justice, and participate in making the ICC a truly effective international mechanism for justice and for peace.

Leila Hanafi is a Moroccan-American international lawyer and the regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.