Rule of law is difference – Rendition black sites took hold in one while support for the International Criminal Court has begun to define the politics of the latter. It is not cultural, as both regions have had history of despots, personality cults and laws defined by the prevailing authority, but a divergence can be traced to sometime around July 1998 and September 2001. Perhaps it is only coincidental, however as the Rome Conference began to wind down in the summer of 1998, there has been a marked movement toward greater respect and application for the “rule of law” in many Latin American states. On the other hand, after the “9/11 terrorist” attacks in 2001 many Arab regimes became host to rendition and black sites as the “war on terrorism” was waged frequently by extra-judicial methods not consistent with the rule of law.

When in Rome – Do it As the World
In Rome, the expertise and commitment of legal professionals from both Latin America and the Arab World was in ample evidence toward the goal of establishing the first permanent international criminal tribunal. The political impetus had at least in part come from the conflicts in the former Yugoslavia and Rwanda and the apparent successful start in the work of the ad-hoc Tribunals (ICTY and Rwanda). Only a couple of years earlier an international criminal tribunal was not a realistic option. The ad-hoc Tribunals paved the way to overcome varied political agendas and the complexity of weaving one functional, just legal system (whose judges, prosecutors, defense counsel, registrars and investigators had come from such a different jurisprudence backgrounds).

The Awakenings to Rule of Law Brought About by Bosnia & Rwanda
It was also inconceivable to most that as the Iron Curtain was crumbling and new dark curtain of fascism manifested by ethnic cleansing/genocide would arise not only in Africa but Europe. The presumed “new world order” was really a new global disorder, and there was a fundamental need to bring forth a judicial process that would confront those who would exploit the apparent void and who engaged in grave violations of international humanitarian law.
Cherif Bassiouni, from DePaul University but original from Egypt was one of the leading proponents and architects at and before the Rome Conference. Professor Bassiouni was one of those most responsible for the establishment of ICTY (the International Criminal Tribunal for the former Yugoslavia).

Washington Opts Out
The United States, despite visible involvement of the US delegation in Rome under Ambassador David Scheffer, ultimately failed to adopt the ICC Statute/Treaty. Then Senator Jesse Helms blocked support in Washington. The George W. Bush Administration went one step further: it undermined the ICC even threatening younger democracies with loss of US support.

Latin America as Cornerstone of ICC
The start of the last decade was a key as the ICC worked to achieve the minimum 60 state parties necessary for the Court to become officially functional. Latin American states provided a surge and to this day constitute one of the largest blocks geographically among state parties.
It appeared that a similar pattern might follow in the Arab world. Even Israel was concerned and some Arab capitals foresaw that the methodology of the ICC might turn its attention to events in the occupied territories. (Israel is also not ICC state party unfortunately). Of course, many long embedded Arab regimes also were weary of the consequences for them.

“Suspects” on basis of law or belonging
The 9/11 attacks and the “war on terrorism” provided a rapid change in perspective. Washington did not see the rule of law and potential criminal prosecution of terrorist suspects as an attractive alternative, at least as compared to a relatively free hand to cast a broad net as possible to gather suspicious persons, not even so much suspects. (Purported Islamic fundamentalism and political activism became enough to bring suspicion, rather than illegal action). War defined a confrontation with many fewer rules than the rule of law, and potential targets could be more readily identified by their belonging rather than doing.
This suited many long standing Arab regimes that also employed a similar means to identify enemies of the state. Not certain who co-opted whom, or perhaps it was an affair of opportunity: covert Washington sought willing Arab/Muslim accomplices in its definition and thus means of executing the war on terrorism. Some Arab despots saw this as a way to reduce pressure from western capitals, particularly Washington, for political reform toward more open societies and democracy.

Co-opting in War on Terror:
The end result was that both parties, covert Washington and the host Arab black site were culpable and complicit for each others’ actions that may have been inconsistent under international law. Although the relationship may have resembled that of co-conspirators, the Arab regimes involved certainly had more to fear of the consequences, especially as the ICC became a functional reality. As Washington did, most Arab despots took the opportunity to effectively opt out. The rule of law had been more likely to be melded into Arab systems through its international identity, and thus the evolution of Arab states was stalled. Undoubtedly, to repeat again, most Arab despots saw this as a fortuitous opportunity to deflect the movement toward greater democracy and open societies. Despots globally, and not just Gaddafi, point to a real or fabricated Al-Qaeda link to legitimize state action especially if such is inconsistent with the rule of law.

Emergency Laws and Rule By Decree as Indicators:
Applying generalizations is inevitably dangerous as well as unfair. In Latin America, we can identify contrarian situations, from Venezuela to Ecuador. The trends though are unmistakable in the last decade or so, whether directly linked to the summer of 1998 and the ICC. Most telling though is the indefinite extension of “emergency laws” and “rule by decree” that persisted in many Arab states since whenever . Most Arab citizens were born into such “emergency rule” and the original rationale was long forgotten. It is ironic that now some of these regimes are moving to abolish emergency rule due to the challenges from street uprisings and popular pressure from protesters.

By Ambassador Muhamed Sacirbey
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See previous Reports at diplomaticallyincorrect.org/films/blog_posts
Including: “Part 1 – What Can Arab World Learn from Latin America?” diplomaticallyincorrect.org/films/blog_post/what-can-arab-world-learn-from-latin-america-your-insights-by-ambassador-mo/26499
“International Criminal Court – Kampala Review Conference, Part 1” diplomaticallyincorrect.org/films/movie/international-criminal-court-william-r-pace-part-1-kampala-amendment-conference/20656