By guest contributor Pravah Ranka, a student at Gujarat National Law University.
More than 50 former foreign ministers, prime ministers, and top international officials, including two former British Conservative ministers, have signed an open letter condemning political interference in efforts by the International Criminal Court (ICC) to investigate alleged war crimes in Palestine. They state that attempts to delegitimize the International Criminal Court and hinder its operation will not be accepted if global justice is to be ensured. They have further stated that “the ICC must be shielded from any external pressures or threats including refraining from public criticism of the ICC’s decisions, which could contribute to undermining the independence of the court and public trust in its authority.” Regardless of the alleged greater good it aims to achieve, the letter holds the potential to trample upon the civil liberties guaranteed by international law to the public at large. In this context, it is argued that the open letter is inconsistent with the internationally recognized rights of freedom of expression.
Through the Prism of International Human Rights Law
The principle of freedom of expression has become a principle of customary international law since it is explicitly stated in so many treaties and soft law instruments. For example the Human Rights Council had its 20th session, during which it unanimously endorsed a resolution to defend individuals’ right to free expression on the Internet, the first such U.N. resolution of its kind and the 44th regular session of the Human Rights Council where it reaffirmed that the right to freedom of expression constitutes one of the essential foundations of democratic societies and development.
Article 19 of the International Covenant on Civil and Political Rights guarantees every individual the right to hold opinions without interference. Even article 19 of the Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference. Insofar as the judiciary’s work, in general, and judges’ work, in particular, is in the public domain and thus is of public interest, the value of freedom of expression applies, in principle, with equal force. Freedom of expression helps maintain the integrity of democratic norms that demand that government institutions be transparent and responsible, so that the judicial realm, like other realms of governance, benefits from a healthy exchange of ideas.
Well-informed participants serve the administration of justice better than those who are ignorant, and freedom of expression can contribute to a thorough and rigorous appraisal of information in the judicial setting. Apart from the aforementioned reasons, there have been criticisms of the judges, the former Prosecutor and other officials, as well as concerns over particular decisions of the court. In its 19-year run, the ICC has only had a few cases on its docket, with a modest record of ten convictions and four acquittals. Reports show that the ICC’s procedures are inefficient, and its jurisprudence has been criticized for being inconsistent. They further state that the Court has a racist agenda, a flawed investigation process and a prosecutorial strategy, as well as suffering from unacceptable delays. In the given context, this is certainly not a positive development. Therefore, it is imperative not to stifle criticism. As the UK representative in the UK statement to the ICC Assembly of States Parties 17th session in this context stated, “We cannot bury our heads in the sand and pretend everything is fine when it isn’t”. Democracy is an essential barrier against atrocities against human rights and the ICC upholds this principle more decisively than any alternative arrangement. And it is an established fact that the right to freedom of speech and expression is an important pillar of democracy. Therefore, criticism is imperative to avoid it from being an institution of “unchecked powers.”
For journalists, the danger of harm or loss of sources originates not from the chance of being summoned to testify regarding the articles they publish, but from the act of publishing itself. The European Court of Human Rights has frequently emphasized the importance of the media’s right to report freely on issues of public interest. In Goodwin, the Court considered that the press has a “vital public watchdog” role, and recalled that “freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance.” Ensuring and safeguarding a watch on the ICC’s functioning can also help establish stronger standards for fair trials.
Citizens can also influence the conduct of public affairs by engaging in public debate and dialogue with their representatives, or via their ability to organize themselves. This participation is important. In a modern democratic society, everyone, notably legal journalists, attorneys, and other legal establishment officials, contributes to the architecture of judicial policy by expressing their views. Many criticisms against the ICC have been proven to be valid. In this context, the letter stating that individuals should refrain from criticizing the ICC will be inconsistent with the Human Right to Freedom of Speech and Expression, hindering democratic fulfillment, which is critical for any organization that relies on the principles of democracy.
“FREE SPEECH” by Newtown grafitti is licensed under CC BY 2.0