Rules for thee but not for me

 

There is a fundamental question that I would very much like to have answered, what is the rules-based international order? Why such a question you might ask, because the International Criminal Court has finally decided to issue warrants for the arrest of leaders of both Israel and Hamas over the humanitarian crisis going on in Gaza; this comes on the heels of an International Court of Justice ruling that a genocide was indeed taking place in that part of the world.  This is but the second incident in which the ICC has acted in this manner recently, it issued similar warrants for the arrest of Russian President Vladimir Putin for the ongoing situation in Ukraine. That was not the first time that a European leader had been charged with war crimes by an international tribunal, this also happened at the Nuremburg trials that took place after World War II. Such incidents however are exception to the rule as international criminal law has a tendency to target leaders from the Global South such as Bashar Al-Assad of Syria or Omar Al-Bashir of Sudan, leading to criticisms of the courts being biased.

And speaking of criticism, it did not take long for Israel and their US allies challenge this decision on account of bias. This charge however has no merit whatsoever as the ICC warrants have been equally applied to both Israeli and Hamas leaders. This application of the rules in an equitable manner has not satisfied the critics like US President Joe Biden and his Secretary of State Anthony Blinken who have made the argument that it is “wrong” to apply equivalence to the actions of Israel and those of Hamas. The logic behind such an argument goes that because Israel is the “only democracy” in the Middle East then treating it as a pariah state is wrong. I however would argue that since Israel claims to be a democracy then it should be judged by the standard of what is expected of a democracy and when it falls short, it should be held accountable like any other nation. Democracy is inherently linked with the rule of law, yet the argument put forward by Israel and its allies is that the Zionist state should not be subject to the same rules as its adversaries.

On the matter of adversaries, I would like to draw a sharp contrast between how US reacted to the ICC’s warrants against Netanyahu as opposed to the one issued against Putin. The United States in the past has a tendency to be very supportive of international court rulings when applied to their enemies such as the Russians, however as soon as Israel is the one placed on the microscope then all of a sudden the legitimacy and even the integrity of the court is called into question. One of the most egregious examples of this comes directly from the Netanyahu himself who called the court anti-Semitic for daring to hold him accountable. This is hardly the first time he has made such a claim, using that same rhetoric to refer to South Africa when it brought its genocide case before the ICC. He also said something similar regarding protesters around the world calling for justice for the Palestinian people. In fact, one can see it almost as a pattern of the Israeli Prime Minister where every critic is called a neo-Nazi sympathizer. How can Israel plausibly refer to itself as a democracy when it uses such ugly language to smear anyone that dares criticize it?

Israel is not alone in this however as the United States has also taken a similar stance to refer to critics of Israel and its ongoing offensive against the people of Gaza. A week before the warrants were issued, a group of US Republican senators issued threats to staff members of the ICC wishing to impose heavy penalties should they follow through on issuing the warrants. This act of bullying would be clearly unacceptable in other context and quite frankly it is rather disturbing that the same US that commonly refers to its enemies like Putin and Assad as thugs, now has some of its most senior congress members openly and blatantly intimidating court officials and staff in the exercise of their judicial functions.

 If all of this was not already bad enough, some of the most hardline Zionists in the US have even advocated for the US to invoke The Hague Invasion Act (HIA) to deal with the ICC should they attempt to bring Netanyahu or other Israeli leaders to justice. The HIA claims to give the US Armed Forces the “right” to take military action to rescue any US personnel who being held by the ICC. This act has never actually been exercised but the very fact that it even exists on the books is telling as such an action would require the US to invade the sovereign territory of the Kingdom of the Netherlands, a democracy and a NATO ally, an act which clear violates the North Atlantic Charter. The fact that some in the US would advocate using this method to violate international law to defend persons who are not even US citizens sends a clear message that they see themselves as being above the rules based international order.  

Another talking point that demonstrates the hypocrisy of the US and Israel is the argument regarding jurisdiction. According to the US and Israel, the ICC has no jurisdiction because Israel is not a signatory of the Rome Statute. This argument falls flat for two reasons, first of all, the Rome Statute in Article 13 states that once ONE of the affected party is a signatory to the statute then the ICC does have jurisdiction and in this case Palestine is a signatory to the statute therefore its jurisdiction in this matter is perfectly legal. Secondly, the same US which claims that Israel is exempt from ICC rules had no problem supporting the ICC warrant against Putin for the Ukraine War although in that case neither Russia nor Ukraine were signatories of the Rome Statute which means that the ICC genuinely had no jurisdiction there.  US stance on the ICC’s case against Netanyahu is rooted in its decision to refuse to recognize Palestinian statehood which in their view makes Palestine’s signature of the statute illegitimate. However, it must be pointed out that the US is not the arbiter of international law and in an environment where more and more countries are increasingly recognizing the legitimacy of a Palestinian state, its competence to sign the Rome Statute is therefore perfectly legal.

In a democratic world order, all are meant to be equal, but clearly some are more equal than others, which goes against the very spirit of a rules-based international order in the first place. Idea that some nations can pick and choose when to apply rules, how to apply rules and who the rules apply to are all clear signs of a broken system. There can be no justice in the world, so long as law is not respected by all, otherwise what we end up with as a two-tiered hypocritical system where the rules can “apply to thee but not to me” .

Constitutional Kerfuffle: Republic or Democracy

 

I have following the recent discussions going on re the Constitutional Reform Committee where it has come to light that the opposition People’s National Party has refused to sign the final recommendations of the committee due to its dissention regarding whether our final appellate jurisdiction should be retained by the Judicial Committee of His Majesty’s Privy Council or be transferred to the Caribbean Court of Justice.

The disagreement lies in what the opposition sees a haphazard approach to reform in that the current ruling Jamaica Labour Party wishes to separate the issue of the head of state from that of the final court. In the PNP’s view, it is impossible to do one without the other but the JLP does not see it that way. This has led to great debate as to whether or not, it is possible for both to be done simultaneously, with no clear settlement on the matter. My own position is somewhat similar to the government’s position to have them separated however my version would have us getting rid of the Privy Council but retaining the monarchy which is exactly what Canada, Australia and New Zealand have all done so there is plenty of precedent for such a stance.

To further complicate the debate is the matter of timeline. If the government had it gotten its way earlier, all of this would have taken place before the monarchy had even changed hands in 2022 from Elizabeth II to Charles III. The timeline then shifted to 2025 when we are due to have our next general election but therein lies another problem as we would have to hold a popular referendum which is unlikely to take place in that time window, therefore the time would have to go beyond that unless we go the Barbados route.

And what is the Barbados route?, you might ask,  That is where the government unilaterally changes the constitution without asking the people’s permission at all. No doubt there are some who would love for this to be the case given the history of referenda in the region? What history is that? Currently, Dominica, Barbados, Guyana and Trinidad, all made the transition from realm to republic. While Barbados, Belize, Dominica, Guyana and St. Lucia have moved from the JCPC to the CCJ. In every single one of those cases, these changes have been done without calling a referendum. Conversely, the monarchy referendum in St Vincent (2009) and the final court referenda in Antigua (2018) and Grenada (2018) all flopped with the population voting in favour of the status quo.

 How you interpret these events is dependent entirely on your point of view, do you value democracy more than republicanism? or do you think republican aspirations should override the democratic will of the people? Because contrary to what we are told, the two are not synonymous, especially not when we are so often told that having a president is more democratic than having The King yet in countries like Barbados, Dominica and Trinidad, presidents are selected and not elected. To further emphasize the point, I cannot help but notice an area of democratic deficit that no one wishes to talk about. It stems from the fact that when both Barbados and Trinidad became republics, neither country had a viable opposition. Starting with Trinidad, upon independence in 1962, the People's National Movement was already the established party in power with an established grip that it continued to hold for decades culminating in the 1971 general elections where it won more than 80% of the seats in parliament, therefore by the time it established the republic in 1976, there was no entity in the country that could challenge its decision given that its main rival the United National Congress was not established until 1989, well after Trinidad became a republic. Similarly, in Barbados, Mia Mottley’s Barbados Labour Party in the 2018 general election won 100% of the seats in the Bajan Assembly and 3 years later they unilaterally ushered in a republic. The trend here is quite obvious, in both cases the government had no real opposition party to hold it accountable and it both cases there was no popular vote on the matter. Contrast this with the case of St Vincent in 2009 where there was not only a referendum but also where the government had only 55% of seats in parliament meaning there was still viable opposition. Given this history, it should come as no surprise that in Jamaica where we pride ourselves on having a strong opposition as a counterweight to the ruling party that the CRC has ended up with this result. All the talk about how other Caribbean countries have managed to “accomplish” republicanism has never once accounted for the fact that governments were only able to remove The Crown when they had no democratic oversight to prevent them from messing with the constitution in the first place, but that will not be the case in a robust democracy such as ours.

Some would argue that this is less about democracy and more about our sovereignty. I, however would take a different approach by carefully examining this argument and if it has any merit. The common mantra goes that only by replacing His Majesty with a president can we be truly sovereign. But is that argument true?,  first of all let us explore what sovereignty means. According to Article 1 of the Montevideo Convention on the Rights and Duties of States, for a state to be sovereign, it must satisfy four conditions

i.                     a permanent population;

ii.                   a defined undisputed territory;

iii.                 government capable of exercising sovereignty and having a monopoly of the legitimate use of force;

iv.                 the capacity to enter into relations with the other states and be recognized by them.

So my question is, are there any grounds to suggest that Jamaica is lacking in any of these four areas?  Is there any country on earth that disputes Jamaica’s right to exist as an independent entity in the international community due to the lack of president? I can think of several countries who has disputed sovereignty issues such as Palestine, Taiwan and Kosovo and yet they are all republics with presidents. Clearly then there is no evidence whatsoever to suggest that The King makes us less independent and a president would make us more independent. That is but the story that republicans have told themselves (and the rest of us) to justify their own political leanings.

The CRC has once again hit a roadblock which means any attempt by the government to rush through a change in our constitution as it likes will not happen, Jamaica is not Barbados and Andrew Holness is not Mia Mottley. I have no doubt that should the government change at the next general election, the PNP will try to push through its own version of constitutional reform which will face opposition from the JLP therefore unless one party gains control of all 63 seats, our sacred founding document will remain intact, a prospect that no doubt fills republicans with dread. But having seen what took place in our sister islands, it makes me value our democracy even more and I am proud to say that I prize that far more than I do any republican sentiment.