The 1998 Rome Statute, the International Criminal Court’s founding charter, states that one of the critical ICC’s tasks is that “the most serious crimes of concern to the international community as a whole must not go unpunished.” However, under pressure from the US and the European Community, the ICC has avoided opening an investigation into alleged war crimes in Gaza. By doing so, the ICC is not living up to its mandate.
Lawyers for the Palestinians -whose civilian population has been most punished by the ongoing war in Gaza- state that the ICC prosecutor, Fatou Bensouda, has the legal authority to launch an investigation based on a Palestinian request in 2009. However, Bensouda claims that she needs a new Palestinian declaration to do it.
Luis Moreno Ocampo, who was the ICC prosecutor at the time of the Palestinian declaration, supports Bensouda’s position. However, The Guardian quotes a former official from the ICC prosecutor’s office stating, “They are trying to hide behind legal jargon to disguise what is a political decision, to rule out competence and not get involved.”
Moreno Ocampo took three years to decide on the status of the 2009 Palestinian request for an investigation, following the tragic events of the Israeli offensive on Gaza, called Cast Lead. During that time, both the US and Israel intensely pressured him not to allow an investigation, warning him that the future of the ICC was at stake.
According to legal experts, Palestinians were misled in 2009 into thinking that their request for a war crimes investigation would remain open pending confirmation of statehood. However, no investigation was launched after the UN General Assembly (UNGA) voted in November 2012 to grant Palestine the status of non-member observer state.
Although Bensouda initially appeared open to review the standing Palestinian request, in 2010 she issued a statement saying that the UNGA vote made no difference to the “legal validity” of the 2009 request. She has been accused of being under pressure from the US and its European allies (mainly France and the United Kingdom -the ICC’s main contributors to the ICC budget- to prevent the investigation.
The Rome Statute established four main international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Those crimes “shall not be subject to any statute of limitations.” Furthermore, under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves.
The court has jurisdiction over crimes only if they are carried out in the territory of a state party or if they are committed in the territory of a state party or if they are committed by a national of a state party. However, an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.
It is conceivable that Israel, to a certain extent Hamas and even the US could be tried under the Rome Statute. In the case of Israel, because it carried out actions that amount to war crimes, and in the case of the United States by lending Israel financial and military support. Palestinians argue that the small number of Israeli civilians killed by Hamas couldn’t amount to a war crime.
On January 2013 Israel became the first country refusing to participate in a “universal periodic review” of the human rights records of the UN’s 193 member states conducted by the United Nations Human Rights Council (UNHRC).
Palestinian and Israeli human rights groups sharply criticized Israel for its refusal to participate stating that this conduct sets a “dangerous precedent… that could be followed by other states refusing to engage with the UN in order to avoid critical appraisals.” Although from a different context, these words could easily apply now to Israel and the US’s blocking of any investigation into the ongoing Gaza tragedy.
Spokesperson of the US Department of State Jen Psaki said on Tuesday that her country objects to the Palestinian Authority’s efforts to try Israel at the International Criminal Court (ICC).
Commenting at a daily press briefing in Washington on what she called “reports of a push for an ICC investigation”, she said: “Our view is that we continue to strongly oppose unilateral actions that seek to circumvent or prejudge the very outcomes that can only be negotiated.”
She continued: “We’ve been very clear that, while we’ve expressed concerns when we’ve had them, there is – the only realistic path for realising Palestinian aspirations of statehood is through direct negotiations between the parties.”
Earlier on the same day, Palestinian Foreign Minister Riyad Al-Malki said he is optimistic that the latest ceasefire in Gaza will hold, even as Palestinians renewed efforts to bring Israel before the ICC.
“We expect the ceasefire to expand into another 72 hours and beyond,” Al-Malki told reporters at a press conference at The Hague, where he met the ICC’s chief prosecutor, Fatou Bensouda.
“We have heard that Israel has really committed itself to withdrawing… but it really depends on Israel and the seriousness of the Israeli side,” Al-Malki said.
He also openly expressed that the Palestinian Authority is planning to bring Israel to the ICC over the massacres carried out in the Gaza Strip during the last four weeks.
Alfonso Ramos (left) shows a newspaper reporting the death of his sister Celia in Piura due to forced sterilisation. Micaela Flores (centre) and Sabina Huillca are sterilisation victims from Cusco. All three have been waiting for justice for 17 years. Credit: Milagros Salazar/IPS
Shelving the case of the forced sterilization of more than 2,000 women in Peru during the Alberto Fujimori regime was a surprise move by the prosecutor in charge. What happened? An IPS investigation found that legal avenues to pursue justice have not been exhausted.
On Jan. 24, prosecutor Marco Guzmán announced an end to the investigation of forced sterilizations carried out in Peru between 1996 and 2000. He said he would not pursue criminal charges against Fujimori (1990-2000), three former health ministers and other officials accused of being responsible for the crime.
“The doors were padlocked. They carried me off in a stretcher, tied my feet and cut me.” — Micaela Flores
“They took us in trucks. We got in quite innocently and contentedly. But then we heard screams and I ran… The doors were padlocked. They carried me off in a stretcher, tied my feet and cut me,” Micaela Flores, then a mother of seven from Anta province in the southern region of Cusco, told IPS.
On that occasion about 30 women went to the health center, duped by a campaign offering general check-ups, she said.
Guzmán has decided to prosecute only health personnel in the northern department of Cajamarca. The sterilizations were part of the Voluntary Surgical Contraception Program (AQV – Anticoncepción Quirúrgica Voluntaria), created by Fujimori and his government to bring about a drastic reduction in the birth rate in the poorest parts of the country, especially among rural Quechua-speaking women.
Guzmán, as head of the second supra-provincial prosecutor’s office, assumed the case in July 2013 after the investigation was reopened in November 2012.
There are currently 142 volumes of evidence in this longstanding case. In May 2009 the prosecution shelved the probe into the former ministers and other officials for the first time, in spite of repeated urging for its completion from the inter-American human rights system.
In 2003, the Peruvian state signed a friendly settlement agreement before the Inter-American Commission on Human Rights (IACHR) in the case of Mamérita Mestanza, who died in 1998 as a result of a poorly performed tubal ligation procedure done without her consent.
The government promised to pay an indemnity to her family and investigate and bring to trial the government officials who devised and implemented the forced sterilization campaign.
After years of delays and foot-dragging, human rights organizations had their hopes raised when Guzmán showed interest in investigating Fujimori’s command responsibility for the generalized, systematic practice of sterilizations.
In late November the prosecutor said there were “indications of the alleged participation of Alberto Fujimori in the crimes,” and expanded the investigation into the cases of Mestanza and others.
Rossy Salazar, a lawyer with the women’s rights organization DEMUS who is representing the victims, told IPS that this statement by the prosecutor appears on page 60277 of the file as part of a report on the case addressed to Víctor Cubas, the prosecutor who coordinates all human rights cases.
In an interview with IPS, Guzmán acknowledged having said “there were indications that Fujimori had participated.” At that point he had interviewed over 500 victims, mainly in the northwestern department of Piura and in Cusco, he said, although in his latest 131-page decision he states he only interviewed around one hundred.
Guzmán was also in possession of evidence that the program had targets, incentives, and even sanctions for personnel who did not fulfill sterilization quotas, according to documents obtained by government agencies that investigated the facts of the case.
DEMUS invoked these official documents in an appeal against the prosecutor’s decision to shelve the case, which it presented Jan. 28 before the Office of the Public Prosecutor.
The appeal refers to four letters from the former health minister, Marino Costa, to Fujimori in 1997. In one document the minister reports to the president on the increased numbers of AQV operations performed and says “by the end of 1997 our total production should be fairly close to the target.”
IPS asked Guzmán: “After determining in November that there were indications of Fujimori’s participation, why did you absolve him from responsibility so soon afterwards?”
“In order to examine him I had to interrogate him. I went to interrogate Fujimori and he answered some questions, but not others. For some he invoked the right to silence. Then his defense lawyer gave me a number of documents. This was important because Fujimori had never been questioned about this case before,” he said.
Fujimori’s interrogation on Jan. 15 in the Barbadillo prison, where he is serving a 25-year sentence for human rights abuses, lasted less than three hours. One week later, Guzmán closed the case against the ex president.
“Was your interview with Fujimori decisive for determining whether he participated in the crimes?” persisted IPS.
“It was taken into consideration, but it was not decisive. The decisive thing is the legal package I have to apply… There is no legal support for imputing guilt,” Guzmán said.
The prosecutor argued that Peruvian law does not provide for the crime of forced sterilization, and therefore there is no legal support. In his decision he said the victims’ complaints would not be classed as crimes against humanity, which refer to generalized or systematic attacks on a civilian population and have no statute of limitation.
In international terms, the Rome Statute, which established the International Criminal Court, does recognize the crime of forced sterilization. The statute entered into force in Peru in July 2002, after the sterilizations were committed and denunciations were initiated, but “the international community has regarded forced sterilization as a crime since the early 1990s,” Salazar said.
In its appeal, DEMUS argues that the prosecutor’s decision “should not halt the criminal investigation.” It is “only the first step in the search for truth” and does not end the evidence collection phase. DEMUS asks for a higher level prosecutor to bring charges so that the case can continue. Another means of re-opening the case would be for another victim to bring a new complaint.
DEMUS also plans to bring the case to the attention of the IACHR in March.
On Jan. 31, an article by Guzmán was published in the newspaper El Comercio, saying that “the only way Fujimori could be held responsible is by demonstrating command responsibility, and according to the Constitutional Court the requirements for this are not fulfilled, because there is no rigid vertical structure involved, and doctors cannot be obliged to operate against their will.”
“They are isolated cases,” he told IPS.
According to the Health ministry, 346,219 sterilizations were performed on females and 24,535 on males between 1993 and 2000, 55.2 percent of them in the period 1996-1997 alone. During that period an average of 262 tubal ligations were carried out a day.
More than 2,000 persons were documented to have been deceived or threatened into undergoing sterilization. Women in Cusco were among the worst affected, because on average nearly five operations a day were performed there, according to Health ministry figures and the testimony of victims.
Sabina Hillca, from Huayapacha in the Cusco region, told IPS that she set out for the health center in Anta when she was due to give birth to her daughter, Soledad, but the birth happened on the way.
The nurses told her she should stay to be “cleansed” and avoid infection. The next day she woke up crying, with sharp pain, an incision close to her navel, and tied to the bed. Afterwards she fled to her village, cleaned the wound with soap and water, removed the stitches as best as she could, and went to her mother for herbal treatments.
“Now I have cancer because dry blood collected in my ovaries,” she said, showing the dark scar on her abdomen.
The Washington-based group ‘Human Rights Watch’- controlled by the US foreign policy elite – has released another volley in its campaign to back the ‘humanitarian war’ being waged against the independent nation of Syria.
This is not the first or second fabrication against Syria run by Human Rights Watch. The group was amongst the first to falsely blame the Syrian government for the East Ghouta chemical weapons incident of August 2013. The ‘moral panic’ from that accusation almost sparked a major escalation of the war.
Several reports have since proven that the accusation was a fraud. A group led by Catholic nun Mother Agnes Mariam produced a report showing the video evidence of the incident had been manipulated and staged; US investigative journalist Seymour Hersh showed that US intelligence implicating the Syrian Government had been fabricated; and the New York Times retracted its support for speculative telemetry evidence, which they had claimed implicated the Syrian Army. On the other side, Syrian witnesses, a Jordanian reporter and a Turkish human rights group (‘Peace Association and Lawyers for Justice in Turkey’) implicated Saudi-backed terrorists. Further, the last UN report on the incident says that, in most instances, chemical weapons were used ‘against soldiers’; that is, against the government. HRW has neither retracted nor apologised for its role in this scam.
The latest HRW story (‘Razed to the Ground’, 30 Jan) is that the Syrian Government over 2012-13 demolished residential buildings in seven areas of Hama and Damascus as ‘punishment’ for certain neighbourhoods supporting ‘the rebels’. Thousands of families lost their homes in this way, yet there have been ‘no similar demolitions in areas that support the government’.
HRW said it ‘has not documented that anybody was injured or killed in the process.’ Nevertheless, the use of home demolition as punishment was ‘a violation … of the laws of war’ and amounts to a war crime. HRW ‘calls on the UN Security Council to refer the situation in Syria to the International Criminal Court’.
Of course, this claim will go nowhere, as previous more serious provocations have failed at the UNSC. Yet the HRW report adds to a poisoned climate of vilification and intervention, appearing to add moral logic to arming the sectarian groups. Yet propaganda for war is a war crime, in itself.
Syrian NDF soldier and political analyst Mazen al-Akhras points out that videos associated with the HRW report show the presence of anti-government ‘militants’ as witnesses (just as in East Ghouta), tainting the story at the outset. The HRW report does not observe that areas like Tadamon had been crowded with illegal constructions and, when they were damaged during the conflict, the government decided it more efficient to demolish and rebuild.
HRW does not mention that the government took the decision, many months ago, to compensate ‘all citizens whose houses were damaged or totally destroyed by the conflict’. Al-Akhras says HRW ignores the compensation already paid, and then pretends to ‘demand’ compensation. His full commentary is below.
The BBC, which has played a key role in relaying and amplifying propaganda for war on Syria, promoted this ‘Razed to the Ground’ story. An earlier notable contribution by the BBC was to help cover up the terrorist murder of Syria’s most senior Muslim cleric, Sheikh Mohamad al Bouti. He and fifty others were murdered inside the al Iman mosque on 21 March 2013 by a suicide bomber from the al Qaeda-linked and Saudi-backed Jabhat al Nusra.
Because Sheikh Bouti had always opposed salafist sectarians, the armed sectarian gangs (‘takfiris’) said he was ‘not a real Sunni’ and called for his death. After they murdered him they celebrated and then, in typical fashion, blamed the Government.
Jim Muir of the BBC picked up the al Nusra scam, based on the fact that the Sheikh did not die instantly, to run claims that he had been killed by some other means. Nevertheless, in December 2013, five members of al Nusra confessed on Syrian television to the murders. Al Nusra cleric, Samir al-Ordoni, had given them religious permission to enter the mosque and kill other Muslims.
The BBC also gave full prominence to a more recent stunt put on by the oil monarchy of Qatar, a major funder of sectarian Islamist fighters. On the eve of the Geneva 2 peace talks, they promoted a report by three British lawyers, hired by Qatar, which pronounced the Syrian Government guilty of ‘torture and 11,000 executions’. The lawyers had gone to Qatar to interview one man, who said he had not witnessed any torture or murder, but gave them thousands of photos of dead bodies. They examined some of these photos and made some extravagant statements. Yet with such tainted evidence, who knows where the bodies came from or who killed them?
Human Rights Watch has been a key player in the manufacture of propaganda for war and foreign intervention. It gets most of its funds from a variety of US foundations, in turn funded by many of the biggest US corporations. HRW Middle East reports often rely on and acknowledge grants from pro-Israel foundations. The group is tightly linked to the US Council on Foreign Relations (CFR), a virtual ‘Who’s Who’ of the US foreign policy elite.
HRW has ‘soft-pedalled’ on US-compliant regimes such as Colombia, the worst human rights abuser in Latin America as shown by the murder of trade unionists, journalists and other social activists. By contrast, HRW repeatedly attacked the government of the late Hugo Chavez in Venezuela.
The group has always had a political agenda. According to José Miguel Vivanco, director of the group’s Americas division, its December 2008 report on Venezuela (‘A Decade under Chavez’), was written ‘because we wanted to demonstrate to the world that Venezuela is not a model for anyone’. That report was roundly criticized by more than a hundred academics for not meeting ‘even the most minimal standards of scholarship, impartiality, accuracy or credibility’. Rather than a careful report on human rights, it was an attempt to discredit a government, mainly on the basis of allegations of ‘political discrimination’ in employment and the judiciary. The evidence was poor and the approach anything but systematic. HRW disregarded this criticism.
Mazen al-Akhras from Damascus comments on ‘Razed to the Ground’
‘Before we were evacuated due to the military conflict in November 2012 I was a resident of Harasta, one of the eastern suburbs of Damascus, and the closest to Duma, which in turn, is the stronghold of the anti-government forces in the outer suburbs of Damascus.
‘Harasta is adjacent to the freeway connection Damascus to the north (Damascus-Aleppo freeway), and can be seen by eye while travelling, and it can be also monitored by Satellite images. And like many other towns around Damascus, Harasta had its share of demonstrations and battles. And although it was considered the second stronghold for the anti-government forces in the eastern Ghouta, Harasta has not witnessed anything similar to the accusations in HRW’s report.
‘There are several other examples of the same situation around Damascus like Al-Tal, Zabadani and Qudsaia, and if one goes a bit further to the north, such alleged demolitions mentioned in HRW’s report did not take place in Nabk, or in Qara (Kara).
Even in Qussair, demolitions were limited to the results of the battles that happened there, and once the fighting stopped, there was no act of demolition or destruction. Quite the opposite, the government rushed to restore electricity and water and other public services to the city, while putting reconstruction works into action where they were possible.
‘One might need to be reminded that Qussair was not just a city that opposed the government, it was also the strongest stronghold for the militias opposing the Army in mid-west Syria.
‘All these examples and many others are actual real-life proof that the government is not “punishing” areas for supporting the insurgency like HRW’s report claims.
Now, to the videos, they show no sign or indication of the places they were filmed, and one can argue many details about the ID of the militants showing in the second part of the video.
‘While HRW’s report maliciously wonders why other areas of illegally-constructed residences have not been demolished, and assuming (with the same malicious ill-will) that it’s because the areas are Pro-Assad, they fail to mention that these areas already provide shelter and refuge for thousands of families who have evacuated their areas because of still ongoing battles, including those areas that are being demolished. So, in other words, they are simply wondering why the Syrian government doesn’t kick those refugees (again) from the safe areas, along with thousands more of families who were originally in these areas. Of course such wondering is acceptable for them because doubling the numbers of homeless families inside Damascus (or any other city in Syria) poses no discomfort on their dead consciences.
‘Any resident of Damascus knows that Tadamon (among many other areas) is a crowded area of illegally constructed residences, and that the Syrian government has been trying for years to organize it, and now with all the battles-caused destruction, it is very difficult and expensive to just renovate the area, making it easier and cheaper for the government to bring down the rest of the area and then reconstruct it in an organized way, eventually guaranteeing the residents to go back to a healthier and better shaped area.
‘That itself is something else HRW’s report failed to mention, and this time it’s not by mistake, they deliberately chose to ignore the simple fact that the Syrian government had already decided and announced they would be compensating all citizens whose houses were damaged or totally destroyed in the conflict, and that was many months before HRW made their report and “demanded” what the Syrian government had already granted.
‘Mashaa Al-Arbaeen in Hama (as anyone can inquire and verify) is nearly the same as Tadamon, only with worse official documentation of property.
‘So, to sum it all up: many areas, towns and cities are a living proof that the government is not “punishing” anybody. Yet, HRW issues a report about a governmental plan of reorganizing some areas of illegally-constructed residences that are already damaged because of the battles, then HRW twists that plan into an alleged “punishment”, because the plan does not – yet – include other areas (although those areas were not in the conflict and were not damaged, and demolishing them now will double the numbers of homeless families in Damascus, which will also include the families that were evacuated the first time), and to add insult to the injury, HRW ignores the compensations granted and promised by the government to the Syrian citizens and chooses to “demand” those compensations.’
Tim Anderson (2010) ‘How Credible Is Human Rights Watch on Cuba?’, MRZine, Feb, online:http://mrzine.monthlyreview.org/2010/anderson160210.html
Peace Association and Lawyers for Justice in Turkey (2013) War Crimes Committed Against the People of Syria, December, online: http://www.barisdernegi.org/en/war-crimes-committed-against-people-syria-report-peace-association-turkey-and-lawyers-justice
Rodolfo Acuña et al (2008) ‘More Than 100 Experts Question Human Rights Watch’s Venezuela Report’, online: https://nacla.org/news/more-100-experts-question-human-rights-watchs-venezuela-report
Human Rights Watch (2013) ‘Attacks on Ghouta: Analysis of Alleged Use of Chemical Weapons in Syria’, 10 September, online: http://www.hrw.org/reports/2013/09/10/attacks-ghouta-0
Human Rights Watch (2014) ‘Razed to the Ground’, 30 Jan, online:http://www.hrw.org/reports/2014/01/30/razed-ground
Robert Parry (2013) ‘NYT Backs Off Its Syria-Sarin Analysis’, Global Research, 30 December, online:http://www.globalresearch.ca/nyt-backs-off-its-syria-sarin-analysis/5363023
ISTEAMS (2013) ‘Independent Investigation of Syria Chemical Attack Videos and Child Abductions’, 15 September, online:http://www.globalresearch.ca/STUDY_THE_VIDEOS_THAT_SPEAKS_ABOUT_CHEMICALS_BETA_VERSION.pdf
Seymour M. Hersh (2013) ‘Whose Sarin?’, London Review of Books, Vol. 35 No. 24, 19 December, 9-12, online: http://www.lrb.co.uk/v35/n24/seymour-m-hersh/whose-sarin
BBC (2014) ‘Syria accused of torture and 11,000 executions’, 21 January, online:http://www.bbc.co.uk/news/world-middle-east-25822571
Eighteen months ago UK foreign secretary William Hague delivered an important speech at the Hague, home of the International Criminal Court . He was saying all the right things, for example:
“The rule of law is critical to the preservation of the rights of individuals and the protection of the interests of all states.”
“You cannot have lasting peace without justice and accountability.”
“International laws and agreements are the only durable framework to address problems without borders.”
“Such agreements – if they are upheld – are a unifying force in a divided world.”
He spoke of a growing reliance on a rules-based international system. “We depend more and more on other countries abiding by international laws…. We need to strengthen the international awareness and observance of laws and rules….”
Some emerging powers, he said, didn’t agree with us about how to act when human rights are violated on a colossal scale, while others didn’t subscribe to the basic values and principles of human rights in the first place. He was talking about Syria although many in the audience must have had Israel in mind.
“The international community came together in an unprecedented way to address the crisis in Libya last year,” said Hague. “The Arab League, the UN Security Council, the UN Human Rights Council, the European Union, NATO and the International Criminal Court all stepped forward and played their part to protect a civilian population.”
Yeah. Funny how they have never come together for crisis-torn Palestine these last 65 years.
‘We pledge to fight impunity for grave international crimes wherever they occur’
Hague, positively overflowing with fine words and sentiments, chuntered on.
“We have to ensure that when we are trying to build peace, we don’t overlook the need for justice…. Our coalition Government is firmly of the view that leaders who are responsible for atrocities should be held to account…. Institutions of international justice are not foreign policy tools to be switched on and off at will.”
He said referring leaders in Libya and Sudan to the ICC showed that not signing up to the Rome Statute was no guarantee for escaping accountability. “If you commit war crimes, crimes against humanity or genocide you will not be able to rest easily in your bed: the reach of international justice is long and patient…. There is no expiry date for these crimes….”
Woweee! Had he told Netanyahu this? Was this tough talking really from the man who watered down Britain’s laws of Universal Jurisdiction to protect Israel’s war criminals from arrest while shopping in London’s Bond Street? Israel and the US, after signing up to the Rome Statute, had second thoughts and ‘unsigned’ in order to escape the long reach of international justice. At last it was beginning to sound like bad news for TelAviv’s and Washington’s thugs.
At the time of the Libya fiasco Hague announced he had signed a directive revoking Gaddafi’s diplomatic immunity and also that of his sons, his family and entire household. He bragged how the UK “drove” through a Security Council resolution referring what was happening in Libya to the ICC Prosecutor, saying it “sends a clear message to all involved, in the regime and any other groups that if they commit crimes and atrocities there will be a day of reckoning for them.”
Bravo! What a splendidly high-principled chap Hague suddenly seemed to be. And how swiftly he managed to get the International Criminal Court’s attention when he wanted to. But we didn’t hear Hague and his friends call for a reckoning with the psychopaths of the Israeli regime when they committed mega-atrocities against Gaza’s civilians just two years earlier. Instead they tinkered with our laws of universal jurisdiction to enable suspected war criminals to walk free. Gaddafi wasn’t welcome in London but the Foreign Office happily rolled out the red carpet for Livni, Lieberman, Barak and Netanyahu, while Hague conducted the brass band.
Our foreign secretary rounded off his speech by saying:
“There is no doubt where Britain stands: we are with those who say that international law is universal and that all nations are accountable to it…. We are a country that believes in and upholds the Responsibility to Protect, and that is prepared to act to save lives – including through military action as a last resort. We actively support a rules-based international system…. We pledge to recommit to the importance of fighting impunity for grave international crimes wherever they occur…. We will be a robust supporter of the International Criminal Court in its investigations.”
Trampled Palestinians dispossessed by a brutal military occupier and sitting among the smoking ruins of their homes, or eking out a squalid existence in their refugee camp, must have been impressed.
It is British policy to extend the jurisdiction of the International Criminal Court (ICC) to every corner of the earth, except the Palestinian territories occupied by Israel since 1967, that is, the West Bank, including East Jerusalem, and Gaza.
And it is not as if the Occupying Power isn’t committing acts that Britain regards as illegal in these territories, in particular, settlement building. British policy on this issue as stated on the FCO website is as follows:
“Our position on Israeli settlements in the Occupied Palestinian Territories is clear: they are illegal under international law, an obstacle to peace and make a two-state solution harder to achieve.” 
Settlement building is a war crime
Though the British Government never says so explicitly, settlement building is a war crime under the Rome Statute which defines the offences that can be prosecuted by the ICC. It is a war crime because it involves the Occupying Power transferring some of its own civilian population to the territory it occupies. And under Article 8.2(b)(viii) of the Rome Statute “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”  is a war crime.
Since there is no doubt that Israel has transferred well over 500,000 Israeli civilians into territory it occupies, and that the process is still going on, there is a prima facie case that Israelis responsible for the settlement building programme, including the present Prime Minister Benyamin Netanyahu, are guilty of war crimes. It may be that Americans and others who fund settlement building are guilty of aiding and abetting war crimes.
Yet the British Government is opposed to Palestine becoming a party to the Rome Statute so that it is possible that Israelis responsible for settlement building will be brought to account for what the British Government itself regards as illegal actions.
Challenging impunity around the world
In July last year, the British Foreign Office launched an ICC strategy paper , which expressed Britain’s enthusiastic support for international systems of justice in general and the ICC in particular.
A key element of British policy set out in the paper is the extension of the jurisdiction of the ICC by encouraging states that are not party to the Rome Statute of the ICC to join, with the objective of the ICC eventually acquiring universal jurisdiction. The paper explains that the British Government intends to:
- “Work with other States Parties to encourage more states to ratify and accede to the Rome Statute and to fully implement its provisions in domestic law. …
- “Urge States not party to the Rome Statute to consider ratifying or acceding to the Treaty …”
The paper explains:
- “Widening the reach of the Court beyond the current 122 States Parties will increase accountability and help challenge impunity.”
Inappropriate to challenge Israeli impunity
This enthusiasm for extending ICC jurisdiction was sadly missing when Foreign Minister William Hague spoke in the House of Commons a few months later on 28 November 2012. Then, he offered UK support for a UN General Assembly resolution granting Palestine statehood, providing Palestinian leaders promised, amongst other things, that if Palestine acquired statehood it would not become a party to the Rome Statute.
Here’s what he told the House of Commons:
“Our country is a strong supporter, across all parties, of international justice and the International Criminal Court. We would ultimately like to see a Palestinian state represented throughout all the organs of the United Nations. However, we judge that if the Palestinians were to build on this resolution by pursuing ICC jurisdiction over the occupied territories at this stage, it could make a return to negotiations impossible.” 
Yes, believe it or believe it not, it is British policy to extend the jurisdiction of the ICC to every corner of the earth, except the Palestinian territories occupied by Israel since 1967. There it is apparently inappropriate for Britain to challenge impunity.
Two days later, when in retaliation for the UN granting statehood to Palestine, Israel announced plans for yet more building in settlements, William Hague reacted as follows:
“I am extremely concerned by reports that the Israeli Cabinet plans to approve the building of 3000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law and undermine trust between the parties.” 
Dare I suggest that, if settlements are illegal under international law, then, if at all possible, those responsible should be tried in an international court and, if found guilty, punished appropriately? Dare I suggest that, to this end, Palestine should be encouraged to accept the jurisdiction of the ICC?
Palestinian Authority tried to grant the ICC jurisdiction
In January 2009, the Palestinian Authority tried to grant the ICC jurisdiction over the occupied territories so that it would be possible for Israelis to be prosecuted by it for actions against Gaza during Operation Cast Lead.
The ICC can prosecute individuals for genocide, war crimes or crimes against humanity, as defined in the Rome Statute of the Court . It acquires jurisdiction in respect of these crimes by states granting it jurisdiction under Article 12 of the Statute. A state can grant jurisdiction to the Court
(a) by becoming a Party to the Statute (Article 12(1)) or
(b) by making an ad hoc declaration accepting the Court’s jurisdiction (Article 12(3)).
The ICC can try individuals for genocide, war crimes or crimes against humanity, committed in the territories of states (or by its nationals anywhere) that have granted the Court jurisdiction.
On 21 January 2009, the Palestinian Authority made an ad hoc declaration to the Court under Article 12(3) in the following terms:
“In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging the authors and accomplices of acts committed in the territory of Palestine since 1 July 2002” .
It took the ICC Prosecutor over three years (until April 2012) to decide that the Court couldn’t accept the jurisdiction offered. This decision hung on whether or not Palestine was a “state” within the meaning of Article 12(3), which says that a “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”.
Strangely, the Prosecutor concluded that it wasn’t up to him to decide whether or not Palestine was a “state”, within the meaning of Article 12(3), saying that “competence for determining the term “state” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly” .
However, now that the UN General Assembly passed resolution A/RES/67/19  accepting Palestine as a state, there is little doubt that Palestine can simply become a Party to the Statute under Article 12(1). Given that Palestine has been accepted as a state by the UN, it is almost certain that the answer would be YES.
During a public discussion held at the Academie Diplomatique Internationale in Paris on 20 March 2013, Fatou Bensouda, the Prosecutor of the International Criminal Court, said that it was clear that ICC membership for the State of Palestine was Palestine’s for the asking (see John Whitbeck, Palestine and the ICC, Al Jazeera, 16 April 2013 ).
Whitbeck also reported Fatou Bensouda’s view on the issue of retroactivity, that is, whether individuals could be prosecuted for past crimes committed before Palestine becomes a party to the Rome Statute. She said that she did not think that retroactivity could extend back to the birth of the court in 2002 and if any retroactivity was permitted, it would not be earlier than 29 November 2012, when the UN General Assembly recognised Palestine as a state.
Palestine to join other UN bodies?
A year has passed since Palestine was granted statehood by the UN General Assembly. It was generally expected that, having achieved that, the Palestinian Authority would press ahead to join other bodies associated with the UN, of which there are about 20, including the ICC.
There is little doubt that, had it done so, it would have been admitted to all of them. Remember that in October 2011, a year before it achieved statehood and in the teeth of fierce opposition from the US and Israel, it was admitted to full membership of UNESCO by 107 votes to 14 with 52 abstentions.
But, it hasn’t done so, because there has been fierce pressure on it not to do so, especially from the US. And, it has now promised theUS that it will not apply for membership of any of these bodies until April 2014 during the 9 month period of “negotiations” with Israel, brokered by the US Secretary of State, John Kerry.
It is absolutely outrageous that the US, with the support of Britain and others, has pressurised Palestinians into forgoing a possible legal means of redress against the illegal actions by the power that has held them under military occupation for almost 50 years.
Comoros asks ICC to prosecute Israelis re Mavi Marmara
On a brighter note, there is a possibility that Israelis may be arraigned before the ICC for the Israeli military assault on the Mavi Marmara on 31 May 2010. This took place in international waters, when it was part of a humanitarian aid convoy to Gaza, and resulted in the deaths of 9 civilian passengers.
This is possible because the Mavi Marmara was registered in the Comoros Islands and the Union of the Comoros is a state party to the Rome Statute. Under Article 12(2)(a) of the Rome Statute, the ICC has jurisdiction in respect of crimes committed, not only in the territory of a state party, but also on ships or aircraft registered in a state party. On 14 May 2013, the Union of the Comoros requested that the ICC mount an investigation into the Mavi Marmara assault.
This request has been made under Article 14 of the Rome Statute which states:
“A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.” 
On 14 May 2013, lawyers representing the Union of the Comoros presented a document to the ICC prosecutor, under Article 14, requesting her “to initiate an investigation into the crimes committed within the Court’s jurisdiction, arising from [the Mavi Marmara] raid’’. The document sought to make a case that Israeli military personnel committed war crimes (for example, ‘wilful killing’ under Article 8(2)(a)(i) of the Rome Statute) and crimes against humanity under Article 7.
The prosecutor has to conduct a preliminary examination in order to establish whether the ICC’s criteria for opening an investigation are met. That examination is ongoing at the time of writing.
David Morrison is a Political Officer of Sadaka: The Ireland Palestine Alliance and co-author of A Dangerous Delusion: Why the West is Wrong about Nuclear Iran (April 2013). Morrison can be reached at firstname.lastname@example.org.
Editorial note: For a glimpse at a similar situation with Lebanon, see “Justice campaigners say US urged Lebanon not to join International Criminal Court,” by Andrew Wander, The Daily Star, 12 March 2009.
Members of the democratically elected Government of Egypt have submitted a formal Complaint to the International Criminal Court (ICC). The Complaint is accompanied by a Rome Statute Article 12 (3) Declaration giving the International Criminal Court jurisdiction over the situation in Egypt.
The submission of the complaint and declaration by the Government of Egypt allows the International Criminal Court’s Prosecutors to investigate allegations of Crimes against Humanity perpetrated by the military regime following the July 2013 coup d’état.
In July 2013 the Egyptian military led a coup d’état against Egypt’s first democratically elected Government. The coup resulted in the detention of the President and members of the Government of Egypt. In the days after the coup the military regime used extreme force to remove civilians who gathered to protest against the coup. At least a thousand civilians lost their lives and many more were injured during this time. Since then the military regime has attempted to consolidate its position by repressing pro-democracy activists of all types who object to the coup, banning protests and designating the Muslim Brotherhood as a terrorist organisation.
As a result of actions taken by the military regime Egypt’s Freedom and Justice Party (FJP) and members of the Shura Council (the Upper House of the Egyptian Parliament) appointed an international legal team to advise on the unlawful detention of members of the Government and to investigate criminal acts that had been committed by the military regime.
The legal team is led by Tayab Ali, solicitor and partner of leading human rights law firm ITN Solicitors and includes some of the world’s most distinguished legal figures. It includes the former UK Director of Public Prosecutions, Lord Ken Macdonald QC; South African International Lawyer and former UN Human Rights Special Rapporteur, Professor John Dugard SC; renowned human rights barrister, Michael Mansfield QC; war crimes and criminal law expert Stephen Kamlish QC and the distinguished International Criminal Court barrister, Rodney Dixon.
In November 2013 the legal team detailed evidence that had been gathered during their investigation which showed a prima facie case that the military, police and political members of the regime had committed crimes against humanity against Egyptian civilians protesting against the coup.
The Complaint, which was submitted to the ICC on 20 December 2013, includes detailed and compelling evidence that the criminal acts perpetrated by the military regime include murder, unlawful imprisonment, torture, persecution against an identifiable group, enforced disappearance of persons and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. The evidence shows that the acts alleged were widespread and systematic.
At a press conference held in Cavendish Hotel, Mayfair, London on Monday members of the legal team detailed the work that had been undertaken to submit the complaint. International Criminal Court legal expert and barrister Rodney Dixon explained that the International Criminal Court should open an investigation into the very serious allegations of international crimes and should do so without delay. He stated: “The ICC has a unique opportunity to contribute to the prevention of widespread crimes being committed against civilians in Egypt. By launching an investigation now the ICC Prosecutor will send a clear signal that the killings and abuses will not go unpunished and must end.”
London solicitor Tayab Ali stated that he had received “overwhelming evidence” from witnesses giving firsthand accounts of what they had seen and experienced. According to Mr. Ali the testimony is supported by graphic images of violence carried out against unarmed civilian protestors. He said “In order for Egypt to return to the democratic process it is essential that the people responsible for the violence following the coup are held accountable for their crimes. There is no hope for democracy and the rule of law in Egypt unless international legal institutions do the job they have been created to do”.
Michael Mansfield QC said “A democratically elected government has been unlawfully overthrown by a military coup. This in itself contravenes the Rule of Law. There has been no accountability for this action which involved clearly documented crimes against humanity. In circumstances where domestic law has failed to provide an effective remedy, it behoves the institutions of international law to seek the application of that law”.
Senior barrister Stephen Kamlish QC outlined the strategy of using the principles of universal jurisdiction to prosecute members of the military regime wherever they should travel to. He explained the growing move by national courts to apply principles of universal jurisdiction and prosecute people suspected of international crimes regardless of where the crimes had been committed.
Former United Nations Special Rapporteur, Professor John Dugard said “The International Criminal Court was established to ensure that crimes against humanity do not go unpunished. It is therefore essential that the Court investigate and prosecute those responsible for the commission of such crimes in Egypt. It is hoped that the present initiative will achieve this purpose and at the same time deter the commission of further such crimes. The International Criminal Court, and indeed the international community, cannot allow an unconstitutional, unrecognised and illegal regime in Egypt to commit grave international crimes with impunity.”
Members of the legal team are expected to meet with the ICC prosecutor over the coming days and weeks in order to support the work the ICC must now undertake. Tayab Ali said “It is essential that the people of Egypt unite to rebuild democracy. This cannot happen until those who have committed crimes against humanity have been held to account”.
You could very well say that Navi Pillay was more than anyone else the person responsible for NATO’s disastrous invasion of Libya. As UN Human Rights Commissioner she chaired that fateful meeting in February, 2011 where Libyan NGO leader Soliman Bouchuiguir was allowed to repeat incredible tales about the “massacres” taking place in Libya – tales he openly admitted after the NATO invasion he had just made up. “There is no evidence,” he exclaimed when asked after the invasion to back up his claims, which were the basis of the chain of events that led to NATO bombing.
The first link in that chain was the UN Human Rights Commission hearing chaired by Pillay, where Bouchuiguir’s lies led to the suspension of Libya from that body and the referral of the Libya issue to the UN Security Council. At the hearing, Pillay took her cue from the falsifier Bouchuiguir, exclaiming that, “The Libyan leader must stop the violence now.” Eventually the Security Council passed Resolution 1973, cracking the interventionist door to Libya, which NATO very soon kicked open.
Commissioner Pillay wasted no time setting her “humanitarian interventionist” sights on another crisis just waiting for a military solution. As early as August, 2011 she began urging the International Criminal Court to take up the case against the Syrian government, which was fighting against a foreign-sponsored insurgency seeking its overthrow. Never mind the illegality of her position urging the overthrow of a sovereign state, Pillay has argued relentlessly from the beginning in favor of a Libya-style NATO invasion of Syria.
Now Pillay is back in the news, releasing an incredibly dubious “report” concluding that the Syria government is guilty of war crimes in its fight against a foreign-sponsored insurgency. Pillay’s methodology would be laughed out of any courtroom except perhaps those of Stalin’s show trials. Her “investigators” had no access to Syria, conducted no on-the-ground investigations, but instead conducted their interviews in neighboring countries or via Skype. As with her previously discredited Libya claims, there is no independent verification of her findings, no way of even knowing who she talked to in the collection of this “evidence.” In fact, she would not even reveal the names of the accused, a list of perpetrators which she claims was secretly handed to her. No, she prefers to keep her information secret in hopes that the International Criminal Court would finally take up her case against the Syrian government.
Pillay’s fanaticism and the religious fervor of her devotion to the doctrine of “humanitarian interventionism” harkens back to an earlier era where the murder of millions was justified in pursuit of the historical inevitability of utopia on earth. It is a dangerous and deadly philosophy, which justifies all manner of death and destruction. The oft-cited C.S. Lewis quote comes most often to mind when thoughts wander to the Navi Pillays of the world:
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
Later this month Palestinians will be celebrating an important anniversary, namely the decision by the UN General Assembly a year ago to recognise Palestine as a non-member observer state.
But not with much joy, I suspect.
Its upgraded status enables Palestine to now take part in UN debates and join bodies like the International Criminal Court (ICC). Predictably, Israel flew into a rage at the prospect and said the move pushed the peace process “backwards”, while the US said it was “unfortunate”.
So what has the Palestinian leadership done with this precious gift of empowerment from the international community?
In March this year the Russell Tribunal on Palestine, concluding four years of investigations, called for the ICC to investigate “crimes” committed by Israel in the occupied territories. The Tribunal said it would “support all initiatives from civil society and international organisations aimed at bringing Israel in front of the International Criminal Court”. Since Palestine was awarded observer status at the UN the previous November, it could file complaints on its own behalf against Israel with the Court. The tribunal also called on the ICC to recognise Palestinian jurisdiction and for an extraordinary session of the United Nations Special Committee against Apartheid, set up for South Africa, to examine the Israeli case.
Also in March the United Nations Human Rights Council said Israeli settlements in the West Bank were a “creeping form of annexation” and the international community should take steps to halt business ties with those communities. Their report claimed that Israel could be culpable for these acts before the International Criminal Court. The mission asked Israel to withdraw its settlers from the West Bank and East Jerusalem and urged the international community to comply with their obligation under international law to act.
In April senior Palestinian officials were saying that if Israel began construction in the area designated “E-1″ , a piece of land in the West Bank adjacent to Jerusalem seized by Israel in 1967, Palestinian Authority President Mahmoud Abbas would join the ICC and seek indictments on war crimes charges. It is believed that Israel’s administration had just given provisional permission to build some 3,300 Jewish homes on E-1.
Palestinians say that Israeli construction there would make an independent Palestinian state virtually impossible because it would cut off East Jerusalem (which is Palestinian) from the rest of the West Bank.
But why is Abbas waiting for the bulldozers to go into E-1 when there’s a long list of other examples of criminal settlement building and atrocities that Israel ought to be charged with?
In June Dr. Saeb Erekat, Palestine’s chief negotiator, was criticising the policies being pushed by Israeli PM Netanyahu “including aggressive settlement activity, home demolitions, evictions and ID revocations. This is part of Israel’s plan to destroy any possibility for a Palestinian State, by annexing and changing the status quo of Jerusalem, the Jordan Valley and other vast areas of the Occupied State of Palestine”.
The Israeli government, with its destructive policies, was determined to make US Secretary Kerry’s efforts fail, he said. Israel’s actions made it clear they were declaring the end of the two-state solution. The international community should be pushing Israel to implement previous agreements and adhere to international law instead of calling for a resumption of negotiations. “There is a new urgency to face reality and finally hold Israel accountable for destroying the prospects of justice and peace.”
Israel was turning up its aggression against the Palestinian people while we were trying to reach a negotiated solution, grumbled Erekat. “After the announcement to intensify negotiations made by US Secretary John Kerry, Israel destroyed the village of Khirbet Makhoul for the fourth time and approved further settlement expansion aimed at sealing Occupied East Jerusalem from Ramallah.”
Palestinian leadership shows no sign of starting the justice ball rolling
“Our position is clear and in line with international law: all Israeli settlements in Palestine are illegal… and undermine the prospects of a negotiated two-state solution. If Israel is serious about peace, they must cease all settlement activities.” Erekat again demanded action by the rest of the world “to make Israel pay the price for its institutionalized defiance of international law and UN resolutions”.
But there was still no sign of his own people – the Palestinian Authority and the PLO – taking action on their own account, or at least starting the ball rolling, even though the international community had given them the wherewithall to do so.
Now I hear that Israel is drilling into 3.5 billion barrels of oil reserves straddling the armistice ‘green line’, most of it lying under the West Bank. According to official agreements, says Al-Jazeera, “Israel is obligated to coordinate any exploration for natural resources in shared territory with the Palestinian Authority, and reach agreements on how to divide the benefits.”
Ashraf Khatib, an official at the Palestinian Authority’s negotiations support unit, described the oil field as part of Israel’s “general theft of Palestinian national resources… the occupation is not just about settlements and land confiscation. Israel is also massively profiting from exploiting our resources. There’s lots of money in it for Israel, which is why the occupation has become so prolonged.”
And, of course, the world knows how the Palestinians are prevented from benefiting from their offshore gas field and how, if Israel has its way, they’ll never get a sniff of their own gas either.
‘Life in Palestine is subject to the rule of the jungle’
Since the beginning of the Oslo process over 20 years ago, the rights of the Palestinian people have been sacrificed on the altar of so-called political progress, the glittering prize being ‘peace and security’. But that was never really on the cards. All we’ve seen is a continuous slide downhill for the Palestinians while the Israelis’ colonisation and expansion programme goes from strength to strength. “In the West Bank, including East Jerusalem, the expansion of settlements continues relentlessly, while the illegal Annexation Wall creates a situation that is completely at odds with both international law and the stated goals of the peace process,” says Shawan Jabarin in an excellent article Time for the ICC to act on Palestine.
“Life in Palestine is subject to the rule of the jungle: generals and politicians know that they can violate the law with impunity, fuelling a continuous cycle of violations and suffering. The result has been an increase in war crimes committed against innocent civilians. Throughout Palestine we are struggling for the right to live, and the right to live in dignity.”
Talking of the right to live in dignity, only today I was reading how some of the Palestinian villages are used by Israel for military training exercises in which soldiers enjoy virtual impunity with regard to their cruel behavior in the Occupied West Bank and Gaza Strip, the pretext being that the Israeli military is the sovereign authority over the whole territory. “This edict contradicts international law and numerous United Nations resolutions that question the Israeli claim to sovereignty over all Palestinian land,” reports IMEMC .
The Israeli military frequently invades Palestinian towns and villages, with soldiers running through streets and alleys with loaded automatic weapons, ransacking homes and terrorizing residents, for the purposes of ‘training’. Residents and the human rights groups representing them have provided numerous examples of the soldiers tearing through homes and yards, breaking into houses, running up and down stairs and taking over rooftops of family homes as part of these exercises.
It’s bad enough that villages experience actual Israeli military invasions on a regular basis. Now, since the military makes no attempt to differentiate between an invasion and a ‘training exercise’, the villagers are just as terrorized as they are during real raids.
Wasting that all-important empowerment on a dumb promise
International justice remains out of reach for millions of civilians because the corrupt US, UK and EU political establishments conspire to ‘persuade’ Palestine not to join the ICC or press war crimes charges and other complaints against racist Israel. The Office of the Prosecutor at the ICC, meanwhile, is waiting for Palestine to ratify the Statute of the International Criminal Court and become a full member if it wishes to commence proceedings.
To pretend there is something wrong with pursuing a brutal oppressor for war crimes through the proper channels – that is, the ICC – while talking peace, is absurd. No peace is sustainable unless it’s underpinned by international law and justice.
So a week ago I sent a ‘press enquiry’ to the Palestinian Embassy in London, addressed to Ambassador Hassassian. It said:
“What is the PA/PLO doing, please, to regularise its position regarding the ICC statute and satisfy any remaining requirements for exercising its membership rights and bringing charges against Israel for its crimes?
“What still remains to be done and why the continuing delay after the international community cleared the way and unpgraded Palestine’s status?”
No reply, no acknowledgement, despite follow-up phone messages. Silence speaks volumes and is par for the course when dealing with Palestinian officials.
However, I’ve heard it said that Abbas promised Kerry not to seek justice through the ICC during the nine months or more the going-nowhere peace talks will be… well, going nowhere. That takes us by my reckoning to May next year, or beyond. And he gave the undertaking without wringing from the Israelis a corresponding promise to halt settlement planning, construction and enlargement.
Welcome to the Palestinian School of Appeasement.
There’s a dark side to the flurry of reports and testimony on drones, helpful as they are in many ways. When we read that Amnesty International and Human Rights Watch oppose drone strikes that violate international law, some of us may be inclined to interpret that as a declaration that, in fact, drone strikes violate international law. On the contrary, what these human rights groups mean is that some drone strikes violate the law and some do not, and they want to oppose the ones that do.
Which are which? Even their best researchers can’t tell you. Human Rights Watch looked into six drone murders in Yemen and concluded that two were illegal and four might be illegal. The group wants President Obama to explain what the law is (since nobody else can), wants him to comply with it (whatever it is), wants civilians compensated (if anyone can agree who the civilians are and if people can really be compensated for the murder of their loved ones), and wants the U.S. government to investigate itself. Somehow the notion of prosecuting crimes doesn’t come up.
Amnesty International looks into nine drone strikes in Pakistan, and can’t tell whether any of the nine were legal or illegal. Amnesty wants the U.S. government to investigate itself, make facts public, compensate victims, explain what the law is, explain who a civilian is, and — remarkably — recommends this: “Where there is sufficient admissible evidence, bring those responsible to justice in public and fair trials without recourse to the death penalty.” However, this will be a very tough nut to crack, as those responsible for the crimes are being asked to define what is and is not legal. Amnesty proposes “judicial review of drone strikes,” but a rubber-stamp FISA court for drone murders wouldn’t reduce them, and an independent judiciary assigned to approve of certain drone strikes and not others would certainly approve of some, while inevitably leaving the world less than clear as to why.
The UN special rapporteurs’ reports are perhaps the strongest of the reports churned out this week, although all of the reports provide great information. The UN will debate drones on Friday. Congressman Grayson will bring injured child drone victims to Washington on Tuesday (although the U.S. State Department won’t let their lawyer come). Attention is being brought to the issue, and that’s mostly to the good. The U.N. reports make some useful points: U.S. drones have killed hundreds of civilians; drones make war the norm rather than an exception; signature strikes are illegal; double-tap strikes (targeting rescuers of a first strike’s victims) are illegal; killing rather than capturing is illegal; imminence (as a term to define a supposed threat) can’t legally be redefined to mean eventual or just barely imaginable; and — most powerfully — threatened by drones is the fundamental right to life. However, the U.N. reports are so subservient to western lawyer groupthink as to allow that some drone kills are legal and to make the determination of which ones so complex that nobody will ever be able to say — the determination will be political rather than empirical.
The U.N. wants transparency, and I do think that’s a stronger demand than asking for the supposed legal memos that Obama has hidden in a drawer and which supposedly make his drone kills legal. We don’t need to see that lawyerly contortionism. Remember Obama’s speech in May at which he claimed that only four of his victims had been American and for one of those four he had invented criteria for himself to meet, even though all available evidence says he didn’t meet those criteria even in that case, and he promised to apply the same criteria to foreigners going forward, sometimes, in certain countries, depending. Remember the liberal applause for that? Somehow our demands of President Bush were never that he make a speech.
(And did you see how pleased people were just recently that Obama had kidnapped a man in Libya and interrogated him in secret on a ship in the ocean, eventually bringing him to the U.S. for a trial, because that was a step up from murdering him and his neighbors? Bush policies are now seen as advances.)
We don’t need the memos. We need the videos, the times, places, names, justifications, casualties, and the video footage of each murder. That is to say, if the UN is going to give its stamp of approval to a new kind of war but ask for a little token of gratitude, this is what it should be. But let’s stop for a minute and consider. The general lawyerly consensus is that killing people with drones is fine if it’s not a case where they could have been captured, it’s not “disproportionate,” it’s not too “collateral,” it’s not too “indiscriminate,” etc., — the calculation being so vague that nobody can measure it. We’re not wrong to trumpet the good parts of these reports, but let’s be clear that the United Nations, an institution created to eliminate war, is giving its approval to a new kind of war, as long as it’s done properly, and it’s giving its approval in the same reports in which it says that drones threaten to make war the norm and peace the exception.
I hate to be a wet blanket, but that’s stunning. Drones make war the norm, rather than the exception, and drone murders are going to be deemed legal depending on a variety of immeasurable criteria. And the penalty for the ones that are illegal is going to be nothing, at least until African nations start doing it, at which point the International Criminal Court will shift into gear.
What is it that makes weaponized drones more humane than land mines, poison gas, cluster bombs, biological weapons, nuclear weapons, and other weapons worth banning? Are drone missiles more discriminate than cluster bombs (I mean in documented practice, not in theory)? Are they discriminate enough, even if more discriminate than something else? Does the ease of using them against anyone anywhere make it possible for them to be “proportionate” and “necessary”? If some drone killing is legal and other not, and if the best researchers can’t always tell which is which, won’t drone killing continue? The UN Special Rapporteur says drones threaten to make war the norm. Why risk that? Why not ban weaponized drones?
For those who refuse to accept that the Kellogg Briand Pact bans war, for those who refuse to accept that international law bans murder, don’t we have a choice here between banning weaponized drones or watching weaponized drones proliferate and kill? Over 99,000 people have signed a petition to ban weaponized drones at http://BanWeaponizedDrones.org Maybe we can push that over 100,000 … or 200,000.
It’s always struck me as odd that in civilized, Geneva conventionized, Samantha Powerized war the only crime that gets legalized is murder. Not torture, or assault, or rape, or theft, or marijuana, or cheating on your taxes, or parking in a handicapped spot — just murder. But will somebody please explain to me why homicide bombing is not as bad as suicide bombing?
It isn’t strictly true that the suffering is all on one side, anyway. Just as we learn geography through wars, we learn our drone base locations through blowback, in Afghanistan and just recently in Yemen. Drones make everyone less safe. As Malala just pointed out to the Obama family, the drone killing fuels terrorism. Drones also kill with friendly fire. Drones, with or without weapons, crash. A lot. And drones make the initiation of violence easier, more secretive, and more concentrated. When sending missiles into Syria was made a big public question, we overwhelmed Congress, which said no. But missiles are sent into other countries all the time, from drones, and we’re never asked.
We’re going to have to speak up for ourselves.
I’ll be part of a panel discussing this at NYU on Wednesday. See http://NYACT.net
The African Union is on a collision course with the International Criminal Court, a tribunal that has indicted only Africans since its founding in 2002. In an extraordinary meeting of the African Union at it headquarters in Addis Abbaba, Ethiopia, the AU took the position that no sitting head of state should be prosecuted by the ICC while still in office. In the immediate term, the AU calls for the postponement of the trial of Kenyan president Uhuru Kenyatta, scheduled to begin in the The Hague, next month. Kenyatta and his deputy president are charged with crimes against humanity stemming from election violence in 2007. Last weekend, President Kenyatta told the African Union that the International Criminal Court “stopped being the home of justice the day it became the toy of declining imperial powers” – a clear reference to the United States and Britain.
And that is the heart of the matter. It is a travesty of justice that the ICC only indicts Africans, but even more importantly, the International Criminal Court also only indicts those politicians that get on the wrong side of the United States and the former colonial powers in Africa. The ICC is a tool of U.S. foreign policy, an instrument of neocolonialism.
Among the apologists for the ICC is South African former archbishop Desmond Tutu, who says African leaders are “effectively looking for a license to kill, maim and oppress their own people without consequence.” Tutu says it all boils down to a question of “who should represent the interests of the victims?” However, in the real world of imperial power, Desmond Tutu’s reasoning is specious, shallow. He might just as well argue for the return of colonial rule, which established its own kind of law and order in Africa. The question is, whose law and whose order? The ICC represents U.S. foreign policy masquerading as law.
Tutu maintains that, without the deterrence of the ICC, African “countries could and would attack their neighbors, or minorities in their own countries, with impunity.” Well, that is, in fact, the case right now in Africa, and it has occurred with the complicity of the ICC, which has sanctioned and morally assisted mass murder and outright genocide by American allies on the continent.
And here lies the great irony. The very nations that most strongly oppose the ICC – Rwanda, Uganda and Ethiopia – have the blood of millions on their hands. Rwanda and Uganda are principally responsible for the death of six million Congolese over the past 17 years, an ongoing genocide armed and financed by the United States and Britain. The Ethiopian regime’s brutality toward its Somali and Omoro ethnic groups has also been described as genocidal. But, because the United States is also deeply complicit in these crimes, there is no threat of prosecution by the International Criminal Court. The court is only deployed against those countries and leaders targeted by the United States.
So, why are Ethiopia, Rwanda and Uganda worried? Clearly, they understand that, if the United States can give impunity, it can also take it away. They remember that Iraq’s Saddam Hussein used to be a U.S. ally, and that Libya’s Muammar Gadaffi and Syria’s Bashar al-Assad cooperated with the U.S. war on terror – until the U.S. turned against them. The worst purveyor of crimes against humanity in Africa and the world is U.S. imperialism. The ICC is a cog in the imperial machinery, which recognizes no law, but only its own interests. You can’t fight U.S. Empire and its crimes and, at the same time, defend the International Criminal Court. They are one and the same.
Glen Ford can be contacted at Glen.Ford@BlackAgendaReport.com.