The International Criminal Court (ICC) is preparing to launch an investigation of a range of possible war crimes in Afghanistan, including those committed by US troops, according to a new report.
ICC chief prosecutor, Fatou Bensouda, will seek to initiate an investigation in the coming weeks, according to the Foreign Policy magazine, citing several knowledgeable sources.
The probe will likely be launched after the US presidential election but before the end of the year, multiple sources have indicated.
However, it is not clear whether the ICC would ever bring charges against Americans after the investigation because doing so would require significantly more evidence than the chief prosecutor’s office currently possesses, the report said.
If indeed launched, the move would mark the first time a formal ICC investigation has scrutinized US crimes.
In order to discuss the potential investigation and to express concerns about its scope, US officials recently visited the ICC, an international tribunal that sits in The Hague in the Netherlands.
The ICC has repeatedly highlighted alleged abuses of detainees by American troops between 2003 and 2005 that it believes have not been adequately addressed by the US government.
This file photo by shows the bodies of several men and a child who witnesses said were killed by a United States Army sergeant in southern Afghanistan. (AP)
“Crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims,” the tribunal noted in a report last year.
The US government has insisted that the ICC does not have jurisdiction over US citizens because Washington never ratified the Rome Statute that established the court in the first place.
Afghanistan is still suffering from insecurity and violence years after the United States and its allies invaded the country in 2001 as part of Washington’s so-called war on terror.
In October last year, President Barack Obama announced plans to keep 9,800 US troops in Afghanistan through 2016 and 5,500 in 2017, reneging on his promise to end the war there and bring home most American forces from the Asian country before he leaves office.
The Assembly of States Parties is meeting this month in The Hague to review the work of the International Criminal Court and to discuss the ICC’s budget. The ASP is the International Criminal Court’s management oversight and legislative body. The Assembly also elects the judges and prosecutors and decides the Court’s budget. The court’s proposed budget for 2016 amounts to €153.32 million, representing an increase of €22.66 million, or 17.3 per cent, over the 2015 approved budget. At face value, far from increasing the budget for the ICC, the Assembly of State Parties should be demanding a refund.
Established in 2002, the ICC is an impotent billion euro white elephant. 2015 has been a particularly bad year for the court. It has botched the Kenyan cases it has undertaken and its continuing alienation from Africa was centre-stage internationally when South Africa, previously a keen member, publicly ignored ICC arrest warrants and appears on the verge of withdrawal from the organisation – something seen by observers as a death knell for the court.
The International Criminal Court has self-evidently failed across the board. In 2010 the ICC-friendly Economist had already found it necessary to publish an article about the ICC entitled “International justice: Courting disaster?” Things have worsened considerably since then. The ICC has consumed more than a billion euros in its 13-year existence and has only secured two deeply questionable convictions. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the court’s reputation has been irretrievably damaged by its racism, blatant double standards, hypocrisy, corruption and serious judicial irregularities. The Assembly of State Parties should also accept that it has grotesquely neglected its responsibility to manage the court. The ASP has turned a blind eye to systemic failure on the part of the ICC.
While the ICC pretends to be the world’s court this is simply not the case. Its members, however, represent under one-third of the world’s population: China, Russia, the United States, Pakistan and Indonesia are just some of the many countries that have remained outside the court’s jurisdiction. India, the world’s largest democracy, has chosen not to join the ICC because the court is subordinate to the United Nations Security Council and because it does not criminalise terrorism and the use of nuclear weapons. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence, and has said that no American citizen will ever come before it. That said, Washington is perfectly happy when it suits American foreign policy objectives to demand that black Africans appear before a deeply flawed court peddling sub-prime justice.
The ICC pretends to be independent. Far from being an independent and impartial court, the ICC grants special “prosecutorial” rights of referral and deferral to the UN Security Council – by default its five permanent members (three of which are not even ICC members). The court is also inextricably tied to the European Union which provides over 60 percent of its funding. The ICC has come to be seen within Africa very much as a European-funded and directed instrument of European foreign policy. The Office of the Prosecutor, for example, has to date received approximately 9,000 complaints about alleged crimes in 139 countries. From these almost nine thousand alleged instances of serious abuses of human rights, the ICC has acted in eight African “situations”, and indicted 39 Africans, to the exclusion of any complaints implicating white Europeans and North Americans or their protégés. The ICC has turned a blind eye to self-evident human rights abuses well within its jurisdiction in Iraq and Afghanistan. Afghanistan is an ICC member state. As a result the court can investigate alleged war crimes committed by citizens of any country, ICC Member State or not, within its borders. Tens of thousands of civilians have died and well over one hundred thousand have been injured in the conflict in Afghanistan, many of them at the hands of NATO and US forces. The ICC has however ignored any allegations of war crimes by NATO, US or EU citizens in Afghanistan.
The ICC promised “swift justice” but took several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over and done within a year. The ICC pretends to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence toward victim communities. The court promised to usher in a new era of gender justice. Women’s rights specialists such as Professor Louise Chappell have noted that the ICC’s record in this respect “has been partial and inconsistent”, and that “The ICC’s legitimacy is fragile.”
Despite having consumed more than one billion euros the ICC has also shown itself to be stunningly dysfunctional. The court’s proceedings thus far have often been questionable where not simply farcical. At the heart of any judicial process is testimony provided by witnesses. The court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. In its first trial, that of Thomas Lubanga, a process that lasted seven years, the judges found all but one of the alleged former child soldiers presented as witnesses by the Prosecution to be unreliable. Dozens of other “witnesses” have either been similarly discredited or disavowed their “evidence”. This hallmark of incompetence continues to this day. Most recently the ICC prosecutor had to admit that one of its own star witnesses in its case against Kenyan Vice-President Ruto was “thoroughly unreliable and incredible”. In reality it is the Office of the Prosecutor that has been revealed to be thoroughly unreliable and unprofessional.
There have been scandalous examples of prosecutorial misconduct, not least of which the ICC Chief Prosecutor hiding hundreds of items of exculpatory evidence, which should have ended any trial because they would have compromised the integrity of any legal process. The ASP has simply stood by doing nothing.
That the International Criminal Court is corrupt is also self-evident. The Shorter Oxford English Dictionary defines “corrupt” as “destroyed in purity, debased; vitiated by errors or alterations.” The Assembly of State Parties is responsible for the appointment of judges to the ICC. It is in the selection of judges that the ASP and ICC have been at their most corrupt. ICC judges – some of whom have never been lawyers, let alone judges – are the result of grubbily corrupt vote-trading within the Assembly of State Parties amongst member states and delegates. The relationship between appointments to the ICC and vote trading between states is an open secret. Selecting International Judges: Principle, Process, and Politics, a ground-breaking study of international judicial appointments, written by Professor Philippe Sands QC, and others as part of Oxford University Press’ International Courts and Tribunals Series, concluded that “the evidence leads unequivocally to the conclusion that merit is not the main driving factor in the election processes.” The study also revealed that “[m]any individuals who participate in the ICC process believe it to be even more politicized than other international judicial elections.” The sheer corruption of the process aside, the reality is that vote-trading results in mediocre judges which in turn leads to a dysfunctional, politicised court.
It is clear that the both the Assembly of States Parties and the International Criminal Court are simply unfit for purpose. Far from granting the ICC yet more money, both the ASP and the ICC should be defunded and disbanded.
Dr David Hoile is the Director of the Africa Research Centre and author of Justice Denied: the Reality of the International Criminal Court, a 610-page study of the ICC. The book is available to read or download at www.africaresearchcentre.org. The author can be contacted by email at email@example.com.
It has taken Africa just over a decade to conclude that the International Criminal Court (ICC), established in 2002 by the Rome Statute, is simply unfit for purpose. That certainly is the conclusion of the South African government following the recent African Union summit in Johannesburg. The institution African countries signed up for post 1998, a court that promised to pursue injustice without fear or favor, is not the one they see before them today. They were sold a false bill of goods. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s reputation has been irretrievably damaged by its racism, blatant double-standards, hypocrisy, corruption and serious judicial irregularities.
While the ICC presents itself as the world’s court this is simply not the case. Its members represent just over one quarter of the world’s population: China, Russia, the United States, India, Pakistan and Indonesia are just some of the many countries that have remained outside of the Court’s jurisdiction.
A court is also only as credible as its independence. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council – by default its five permanent members (three of which are not even ICC members). Political interference in the legal process was thus made part of the Court’s founding terms of reference. The Court is also inextricably tied to the European Union which provides over 60 percent of its funding. The expression “He who pays the piper calls the tune” could not be more appropriate. The fact that the big five ICC funders are Africa’s former colonial masters also sits uneasily with a continent suspicious of recolonization by questionable legal diktat. The EU is additionally guilty of blatant political and economic blackmail in tying aid for developing countries to ICC membership.
Africa is also correct when it points out that the ICC is self-evidently a racist court, in that it treats one race of people differently to all others. Instead of impartially enforcing the Rome Statute, the Europeans have chosen to focus the Court exclusively on Africa. African heads of state have spoken of “race hunting.” Despite having received almost 9,000 formal complaints about alleged war crimes in at least 139 countries, the ICC has chosen to indict 36 black Africans in eight African countries. In so doing the ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. While the ICC’s key first two cases were African “self-referrals” it is now clear that the African governments were made “an offer they could not refuse”: refer yourself and we will only indict your rebels – if not we will indict both government and rebels.
The ICC has emerged very much as a European-funded and directed instrument of European foreign policy. Broader western hypocrisy is all too evident. The United States has forcefully pointed out that the ICC is a kangaroo court, a travesty of justice open to political influence and that no American citizen will ever come before it. Washington is nonetheless very happy, for its own political reasons, to demand that black Africans appear before it.
Double standards and politics aside, the ICC has shown itself to be irretrievably dysfunctional. The court’s proceedings thus far have often been questionable where not simply farcical. Its judges – some of whom have never been lawyers, let alone judges – are the result of grubbily corrupt vote-trading amongst member states. Far from securing the best legal minds in the world this produces mediocrity. At least one elected “judge” had neither law degree nor legal experience but her country had contributed handsomely to the ICC budget. The Court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organizations as to what false statements to make. Dozens of other “witnesses” have similarly disavowed their “evidence.” Most recently the ICC prosecutor had to admit that one of its own star witnesses in its case against Kenyan Vice-President Ruto was “a thoroughly unreliable and incredible” witness.
And then there has also been the ICC prosecutor who was not only seemingly unaware of the legal concept of presumption of innocence but also threatened to criminalize third-parties who might argue a presumption of innocence on the part of those indicted – and as yet unconvicted – by the Court. A clearer case of Alice in Wonderland justice, along the lines of “sentence first, verdict afterwards,” is difficult to find. There has been prosecutorial misconduct, not least of which hiding exculpatory evidence, which should have ended any fair trial because they would have compromised the integrity of any legal process. The ICC’s first trial proceeded erratically because of crass prosecutorial misbehavior and judicial decisions to add new charges half-way through proceedings, a move that was subsequently overturned. Simply put, the Court and the prosecutor have been making things up as they go along.
The ICC claims to be “economical” and to bring “swift justice,” yet it has consumed more than a billion Euros in its 13-year existence and has only secured two questionable convictions. The ICC claims to be victim-centered yet Human Rights Watch has publicly criticized the ICC’s ambivalence towards victim communities. The ICC claims to be fighting impunity, yet it has granted de jure immunity to the United States and afforded de facto immunity and impunity to NATO member states and several serial abusers of human rights who happen to be friends of the European Union and United States.
Far from bringing peace to Africa, the ICC’s double-standards and autistic legal blundering has derailed delicate peace processes across the continent – thereby prolonging devastating civil wars. The court is responsible for the death, injury and displacement of many thousands of Africans. The ICC’s involvement in Uganda, for example, destroyed peace talks in that country, intensifying the conflict which then spread into three neighboring countries.”
The reality is that the ICC is an inept, corrupt, political court that does not have Africa’s welfare at heart, only the furtherance of Western, and especially European, foreign policy and its own bureaucratic imperative – to exist, to employ more Europeans and North Americans and where possible to continue to increase its budget – all at the expense of African lives. Three cheers for South Africa pointing out that the Emperor is naked.
Dr. David Hoile is the author of Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre. The book is available to read or download at www.africaresearchcentre.org. The author can be contacted by email at firstname.lastname@example.org.
A high court in South Africa issued an interim order Sunday preventing Sudanese President Omar al-Bashir from leaving the country.
Al-Bashir is currently in South Africa attending the 25th African Union Summit that is underway in Johannesburg.
The South African court will decide later on Sunday whether or not to hand the Sudanese leader over to the International Criminal Court, which issued an arrest warrant against al-Bashir in 2009.
He is accused of committing war crimes and crimes against humanity in Sudan’s Darfur region.
Pretoria High Court Judge Hans Fabricus issued the order on Sunday after the Southern Africa Litigation Centre submitted an application calling for the Sudanese leader’s arrest.
Amnesty International also appealed to South Africa to arrest al-Bashir.
“Al-Bashir is a fugitive from justice. If the government of President Zuma fails to arrest him, it would have done nothing, save to give succor to a leader who is accused of being complicit in the killing of hundreds of thousands of people in a conflict,” said Netsanet Belay, Amnesty International’s Research and Advocacy Director for Africa, late Friday.
“As soon as he lands in South Africa, the authorities must arrest al-Bashir and ensure that he is transferred to the International Criminal Court,” Belay said in a press release to Anadolu Agency.
South Africa is a signatory to the Rome Statute that formally established the International Criminal Court, which means they can arrest anyone accused of committing genocide, crimes against humanity, war crimes or crimes of aggression.
However, experts believe it will be difficult for South Africa to effect al-Bashir’s arrest when he sets foot on their territory because he is a guest of the African Union and not the government of South Africa.
“It would be unfortunate if South Africa arrested any African head of state wanted by the International Criminal Court because they accepted to host all leaders,” international relations expert Tom Wheeler told Anadolu Agency in an earlier interview.
South African government officials have thus far refused to comment and instead requested that questions be directed to the continental body.
Amnesty International has issued four reports on the Israeli massacre in Gaza in 2014.1 Given the scale of the destruction and the number of fatalities, any attempt to document the crimes committed should be welcomed. However, these reports are problematic, and raise questions about the organisation itself, including why the reports were ever written at all.2 They also raise questions about the broader human rights industry that are worth considering.
July 2014 marked the onset of the Israeli massacre in Gaza (I will dispense with the Israeli sugar-coated “operation” name). The Israeli army trained for this attack for several months before finding a pretext to attack the Gaza Strip, shattering an existing ceasefire; this was the third such post-“disengagement” (2004) attack, and possibly the worst so far. At least 2,215 people were killed and 10,000+ wounded, most of them civilians. The scale of destruction was staggering: tens of thousands of houses were rendered uninhabitable; several high-rise buildings were struck by huge American-supplied bombs; schools and hospitals were targeted; 61 mosques were totally destroyed; water purification and sewage treatment plants were damaged; Gaza’s main flour mill was bombed; and all chicken farms in the territory were ravaged. There was incalculable devastation.3
Israeli control over Gaza has been in place for decades, with violence escalating over time, and the Palestinians there have been under siege for the past eight years. The Israelis have placed Gaza “on a diet”,4 permitting only a trickle of strictly controlled goods to cross the border, enough to keep the population above starvation levels. The whole Gaza Strip is surrounded on all sides, blocked off from the outside world: military bulldozers raze border areas, snipers injure farmers, and warships menace or destroy fishing boats with gunfire. Periodically, the Israelis engage in what they term “mowing the lawn” massacres and large scale destruction. It is this history that must serve as the foundation of any report that attempts to describe both the intent of the participating parties and the relative consequences.
Context-challenged – by design
The ongoing crimes perpetrated against Gaza are chronic and, indeed, systematic. Arnon Soffer, one of Israel’s Dr Strangelove types and “intellectual father of the wall”, had this to say about the enclave:
Q (Ruthie Blum): Will Israel be prepared to fight this war?
Arnon Soffer: […] Instead of entering Gaza, the way we did last week, we will tell the Palestinians that if a single missile is fired over the fence, we will fire 10 in response. And women and children will be killed, and houses will be destroyed. After the fifth such incident, Palestinian mothers won’t allow their husbands to shoot Kassams, because they will know what’s waiting for them. Second of all, when 2.5 million people live in a closed-off Gaza, it’s going to be a human catastrophe. Those people will become even bigger animals than they are today, with the aid of an insane fundamentalist Islam. The pressure at the border will be awful. It’s going to be a terrible war. So, if we want to remain alive, we will have to kill and kill and kill. All day, every day.5
To determine the reasons behind Israeli actions, one only has to read what such Dr Strangeloves say; it is no secret. The aim is to create miserable conditions to drive the Palestinians off their land, warehouse the population in an open air prison called Gaza, and to repress any Palestinian resistance disproportionately. Israelis have to “kill and kill and kill, all day”. Such pathological reasoning puts Israeli actions into perspective; they are major crimes, possibly genocidal. Recognition of such crimes has some consequences.
First, the nature of the crimes requires their recognition as crimes against humanity, arguably one of the most serious crimes under international law. Second, Israeli crimes put the violence of the Palestinian resistance into perspective; Palestinians have a legitimate right to defend themselves against the occupying power. Third, the long history of violence perpetrated against the Palestinians, and the resulting power imbalance, suggests that one should be in solidarity with the victim, not the aggressor.
Amnesty, though, refuses to acknowledge the serious nature of Israeli crimes, by using an intellectually bankrupt subterfuge. It insists that as a rights-based organisation it cannot refer to historical context; doing so would be considered “political”, in its warped jargon. An examination of what Amnesty considers as “background” in its reports confirms that there is virtually no reference to relevant history or context, such as the prior Israeli attacks on Gaza, who initiated those attacks, the Goldstone Report, and so on. Hey presto! Now there is no need to mention serious crimes. It also doesn’t recognise the nature of the Palestinian resistance, and their right to self-defence. Nowhere does Amnesty International acknowledge that Palestinians are entitled to defend themselves against Israel’s military occupation. Finally, the rights group cannot express solidarity with the victim because, hey, “both sides” are victims!
At this point, once Amnesty has chosen to ignore the serious Israeli crimes, it takes on the Mother Teresa role of sitting on the fence castigating “both sides” for non-compliance with international humanitarian law that determines the rules of war. Thus, Amnesty criticises Israel not for the transgression of attacking Gaza, but for utilising excessive force or targeting civilians. The group’s favourite term to describe such events is “disproportionate”. This is problematic because it suggests that there is no problem with the nature of the action, just with the means or scale of it. While Amnesty bleats that a one-ton bomb in a refugee camp is disproportionate, it would seem that using a 100kg bomb would be acceptable. Another favoured term is “conflict”, a state of affairs where both sides are at fault, both are at once victims and transgressors.
Notice that while Amnesty avoids recognising major crimes by using its rights-based framework, it suddenly changes its hat, and takes on a very legalistic approach to criticise the violence perpetrated by the Palestinians. It manages then to list the full panoply of international humanitarian law which it deems to be applicable.
The key thing to watch in the upcoming International Criminal Court (ICC) investigation of the 2014 massacre will be whether the court will copy the Amnesty approach. Any investigation that doesn’t focus on the cause of the violence and who initiated it will result in another fraud, and no pixel of justice.
Criminalising Palestinian resistance
Amnesty dispenses with the Palestinians’ right to defend themselves by stating that the rockets fired from Gaza are “indiscriminate”, and proceeds to call their use a war crime. Palestinian resistance groups are also told not to hide in heavily populated areas, not to execute collaborators, and so on. While Palestinians are told that their resistance amounts to war crimes, the Israelis aren’t told that their attacks are criminal per se; for them, it is only a matter of scale.
The “Unlawful and deadly rocket and Mortar Attacks…” report condemns repeatedly Palestinian rocket firing with inaccurate weapons, deems these “indiscriminate”, and ipso facto war crimes. Amnesty confuses the term “inaccurate” with “indiscriminate”. Examining the table below suggests that Israel killed proportionately far more civilians, albeit with more accurate weapons. It is quite possible to target indiscriminately with precision munitions. There is also a possibility, which Amnesty International appears to disregard, that the Israeli military targeted civilians intentionally. Indeed, it is likely that Israeli drones targeted children intentionally. A report by Defence for Children International states: “As a matter of policy, Israel deliberately and indiscriminately targeted the very spaces where children are supposed to feel most secure.”6
Regardless of the accuracy of the weapons, the key issue is one of intent. Amnesty dwells on an explosion at the Shati refugee camp on 28 July. On the basis of one field worker’s testimony, Israeli-supplied evidence and an unnamed “independent munitions expert”,7 the organisation concludes that:
Amnesty International has received no substantive response to its inquiries about this incident from the Palestinian authorities. An independent and impartial investigation is needed, and both the Palestinian and Israeli authorities must co-operate fully. The attack appears to have violated international humanitarian law in several ways, as the evidence indicates that it was an indiscriminate attack using a prohibited weapon which may well have been fired from a residential area within the Gaza Strip and may have been intended to strike civilians in Israel. If the projectile is confirmed to be a Palestinian rocket, those who fired it and those who commanded them must be investigated for responsibility for war crimes.
Mother Teresa certainly provides enough comic material; an occasional joke makes it easier to read a dull report. The evidence for the provenance of this missile is taken at face value although it is supplied by Israel, but, of course, it requires an “investigation”; Amnesty is suggesting that both Israel and the Palestinians should investigate this incident. If the Palestinian resistance was responsible for this explosion, then it was caused by a misfire; thus, there was no intention to cause the consequent deaths. Suggesting that this amounts to a war crime is rather absurd, but the title of the section advertising the report on the Amnesty International website suggests a motive for harping on about this incident: “Palestinian armed groups killed civilians on both sides in attacks amounting to war crimes”. This conveys a rather warped and negative view of the Palestinian resistance – they kill civilians on both sides – and it suggests that it is not possible to be in solidarity with them.
Tyranny of reasons
After any Israeli attack, the pro-Israel propagandists offer a rationale about why a given target was struck. They claim that there were Palestinian militants firing rockets from hospitals, schools, mosques, the power plant and other civilian buildings. At a stroke, such locations are legitimised as Israeli targets whether or not the propaganda statements are true. What is disconcerting in the two reports on Israeli crimes is that Amnesty International imputes reasons for the targeting of buildings or families.
One finds, for example, statements such as:
- Amnesty International believes this attack was targeting one individual.
- The apparent target was a member of a military group, targeted at a time when he was at home with his family.
- The fighters who were the apparent targets could have been targeted at a different time or in a different manner that was less likely to cause excessive harm to civilians and destruction of civilian objects.
- The apparent target of Israel’s attack was Ahmad Sahmoud, a member of the al-Qassam Brigades, Hamas’ armed wing. […] Surviving family members and neighbours denied this.
Amnesty parrots the rationales provided by the Israeli military; one only needs to look at the footnotes of its reports to check the veracity of this claim. And Amnesty discounts the intentional bombing of buildings to create misery among the Palestinian middle class and demoralise a key sector of society; and that destroying the power plant amounts to collective punishment. But don’t worry, Mother T will always check with the Israeli military to determine why something was targeted.
AI is not an anti-war organisation
One would expect a human rights organisation to be intrinsically opposed to war, but Amnesty International is a cheerleader of so-called humanitarian intervention, and even “humanitarian bombing”.8 Despite such a predisposition, it was honoured with the Nobel Peace Prize, yet another questionable recipient of a prize meant to be given only to those actively opposed to wars. Today, one wonders if AI is going to jump on the R2P (Right to Protect) neocon bandwagon. A consequence of its “not-anti-war” stance is that it doesn’t criticise wars conducted by the United States, Britain or Israel; it is only the excesses that merit Amnesty’s occasional lame rebuke, often prefaced with the term “disproportionate” or “alleged”. This stance is evident in its latest reports; here the premise is that the Israeli attack on the Gaza Strip was legitimate, but it is the conduct of “both sides” that is the object of the reports’ criticism.
Can’t see the wood for the trees
Amnesty International is a small organisation with insufficient resources to conduct a proper report on the massacre in Gaza last year. Given the fact that it didn’t have direct access to Gaza approved by Israel, it chose to focus on two aspects of the Israeli attack: the targeting of entire families and the destruction of landmark buildings. Within these two categories it chose to focus on a handful of examples of each. The main problem is that Amnesty harps on about a few cases to the exclusion of the totality; it can’t see the wood for the trees. There is no mention of some of the most significant total figures, say, of the number of hospitals and schools destroyed, the tonnage of bombs dropped on Gaza,9 the tens of thousands of artillery shells used, and so on. The seriousness of the crime is lost by dwelling on a subset of a subset of the crimes committed. Amnesty isolates a few examples, describes them in some detail, and then suggests that unless there were military reasons for the attacks, then there should be an “investigation”. Oh yes, and it has sent some polite letters to the Israeli authorities requesting some comment, but the Israelis have been rather unresponsive. Quite possibly the likes of Netanyahu, Ya’alon, Ganz and their colleagues are too busy rolling on the floor laughing.
Given such a warped framework one would expect symmetry in the way that the attacks are described, but no. While Amnesty provides the total number of rockets fired by the Palestinian resistance, it gives no similar numbers of the tens of thousands of Israeli artillery shells fired, nor the total tonnage of bombs dropped on Gaza. The Israeli military propagandists were all too happy to provide detailed statistics about the Palestinian rockets, and Amnesty does not seem to express any misgivings about using this data. It is also clear that Mother T didn’t ask the propagandists to supply statistics on the lethal Israeli tonnage dropped on Gaza.
Methodology and evidence
Every report contains a methodology section admitting to the fact that AI didn’t have direct access to Gaza. All of its research was done on the Israeli side, and by two Palestinian fieldworkers in the besieged and occupied territory. The inability to enter Gaza possibly explains the reliance on many Israeli military statements, blogs and the foreign ministry about the Palestinian rocket attacks. One can verify all the footnotes to find a significant number of official Israeli statements to provide so-called evidence. It is rather jarring to find Amnesty relying on information provided by the offensive military forces to implicate Palestinian resistance in war crimes. How appropriate is it to use “Hamas’ Violations of the Law” issued by the Israel Ministry of Foreign Affairs, or “Declassified Report Exposes Hamas Human Shield Policy” issued by the Israeli military?
It is also jarring to find Amnesty referring to Israeli claims that rockets were fired from schools, hospitals and the electricity power plant. This information was provided as a justification for Israel’s destruction of such sites, but in the report Amnesty uses it to wag its finger at the Palestinian resistance.10
Amnesty International’s access to Israeli victims of Palestinian rockets produced emotional statements by the victims, and complied with Israeli propaganda needs. Israeli PR was keen to take journalists or visiting politicians to the border towns to show the rocket damage, and Amnesty seems to have been pleased to tag along. At the same time, Israel prevented any Amnesty access to Gaza; clearly, any information coming out of the territory would not be compliant with Israeli PR requirements. Thus, why send any researchers to the Israeli border area?
Execution of collaborators – who will be criticised?
Amnesty has announced the publication of a forthcoming report on the execution of collaborators, and one can only speculate on its contents. It is odd that while AI is not opposed to wars it is opposed to the death sentence; it is opposed to some deaths, but silent about others. Couple this stance with an unwillingness to recognise the Palestinian right to self-defence and, consequently, AI will inevitably deem the execution of Palestinians who collaborate with Israel as abhorrent.
There are many collaborators in the West Bank and they are evident at all levels of society, even in the so-called Palestinian Authority. The PA has even committed itself to their protection. Collaboration with Israel in the West Bank is thus a relatively low-risk activity. In Gaza there are also collaborators, who are used to infiltrate and inform on the armed resistance groups, and also to sow black propaganda. During the 2014 massacre, collaborators were instrumental in pinpointing the location of the resistance and its leadership. In most countries, treason and espionage in time of war merits execution, but it is doubtful that Amnesty International will accept this, and will instead urge a judicial process with no death sentence.
The key aspect of the forthcoming report will be whether the organisation deems the Israeli use of collaborators as an abhorrent practice. Israel not only uses collaborators to gather information, but they are also meant to fragment Palestinian society, and to sow discord. With a society already under massive stress due to economic hardship and military repression, collaborators are a pernicious means to break morale and undermine Palestinian resilience. Will Amnesty criticise Israel’s use of collaborators, or will its report merely castigate Hamas for the way it deals with collaborators?
Why were these reports written at all?
All Amnesty International reports follow the same formula: a brief overview, a methodology section about data sources, some emotional quotations by the victims, a section on accountability, and then some recommendations. They are trite, barely readable and certainly not very useful either for legal purposes or to educate its volunteers. So why are these reports published and who actually reads them? Amnesty would like to be known as one of the leading human rights organisations and it must be seen as reporting on major human rights violations and crimes. Its volunteers must be given the impression that the organisation cares for some of the wholesale atrocities, and not merely the retail crime or violation.
The timing of the publication of one report (“Unlawful and deadly: Rocket and mortar attacks…”) is rather curious. The report dealing with the Palestinian rockets was published a few days before the Palestinian accession to the International Criminal Court. A coincidence? While some Palestinians are gearing up to prosecute Israel for war crimes and crimes against humanity, a leading human rights organisation publishes a report which goes on about Palestinians being guilty of war crimes. Amnesty has published reports in the past that were exploited for propaganda purposes; the Iraqis throwing-the-babies-out-of-the-incubators propaganda hoax, for example.11 Those reports were published just in time to provide a justification for war.
Impotence by design
All the reports contain a list of recommendations for Israelis, Palestinians and other states. One is struck by the impotence of the recommendations. The group urges Israel to cooperate with the UN commission of inquiry; allow human rights organisations access to Gaza; pay reparations to some victims; and ensure that the Israeli military operates within some legal limits. Given that Israel can more or less do as it pleases in any case – ignoring commissions of inquiry, proclaiming loudly that it will engage in disproportionate attacks (that is, the Dahiya doctrine), and that it refuses to compensate any Palestinian victim of its previous massacres – all these recommendations ring hollow.
Amnesty urges Palestinians to address their grievances via the ICC. It is curious that while international law apparently provides the Palestinians with no protection whatsoever, they are urged to jump through international legal hoops. It is also questionable to suggest a legal framework meant for interstate conflict when dealing with a non-state dispossessed native population. Of course, Amnesty fails to mention that Israel has avoided and ignored international law with the complicity and assistance of the United States.
Finally, Amnesty International requests other governments to assist the commission of inquiry and to assist in the prosecution of war criminals. It remains to be seen whether the commission of inquiry will actually publish a report that has some teeth. The group also urges other countries to stop supplying weapons to “both sides”. There is no mention of the fact that the US resupplied Israel with weapons during last year’s massacre in Gaza. It is very unlikely that the US or Britain will stop arming Israel; as such, Amnesty’s recommendations are ineffective rhetoric.
Amnesty trumpets that it has 7 million supporters world-wide;12 a few months ago this number was 3 million; two years ago it was 400,000, and a few more years ago it was 200,000. One should marvel at this explosive growth. If the organisation really can tap into the support of even a fraction of these volunteers, then it can urge them to do something that has tangible results; it could, for example, ask its members and supporters to boycott Israeli products or products made by western companies complicit in Israeli crimes. Such action would be far more effective than the meaningless recommendations that are ignored regularly by Israel and its western backers. Alas, it is difficult to conceive that Amnesty will issue a call for a boycott to its ever expanding army of supporters. It is difficult for Mother T to change her stripes.
The human rights industry
There are thousands of so-called human rights organisations. Anyone can set up such a group, and thereby specify a narrow focus for the NGO, determine the parameters within which it will operate – even define who is human – and then the new organisation can chime in with press releases, host wine and cheese receptions, bestow prizes, lobby politicians, launch investigations and castigate the enemy du jour. Bono, Geldof and Angelina might even hop along and sit on the NGO’s board. The human rights framework is elastic and can be moulded to fit legitimate purposes, but it can also be manipulated for propaganda purposes. The history of some of the largest human rights organisations shows that they were created originally with the propaganda element foremost in mind.13 This suggests that NGO output, such as Amnesty’s reports, for example, merit scrutiny not so much for what they say, but for what they omit. In the Palestinian context, a simple test on the merits of a so-called human rights organisation is whether it challenges state power, calls for accountability and the prosecution of war criminals, and urges its supporters to do something more than write out cheques or very formal and polite letters to governments engaged in criminal acts.
Another test for the merits of a human rights NGO is whether it is in solidarity with the victims of violence, and whether victims are treated differently depending on their support or demonisation by “the west”. In Amnesty’s case, consider that on the one hand it provides long lists of “prisoners of conscience” pertaining to prisoners held in Cuba, Syria, etc., but on the other hand it explicitly does not make such a list of Palestinian prisoners available. We have no means of knowing how many Palestinian political prisoners Amnesty actually cares about, and whether its volunteers engage in letter writing campaigns on their behalf. One thing is certain, though, that while the majority of Cuban political prisoners are considered prisoners of conscience, only a tiny fraction of the Palestinian political prisoners have been given such status. In reality, of course, Mother Teresa doesn’t give a hoot about political prisoners who might have been involved in violence, so Palestinians are just a stone’s throw away from being ignored by Amnesty International. Some victims are more meritorious than others.
In trying to justify the organisation’s double standard, Malcolm Smart, Amnesty’s Director of the Middle East and North Africa Programme, stated:
“By its nature, the Israeli administrative detention system is a secretive process, in that the grounds for detention are not specified in detail to the detainee or his/her legal representative; inevitably, this makes it especially difficult for the detainee to challenge the order for, by example, contesting the grounds on which the detention was made. In the same way, it makes it difficult or impossible for Amnesty International to make a conclusive determination in many cases whether a particular administrative detainee can be considered a prisoner of conscience or not.”15
It thus provides yet more comic material. AI admits that Israeli military courts can determine who can be considered a Palestinian prisoner of conscience. The only thing that those courts need to do is to keep their proceedings secret or not reveal “evidence”. Alternatively, they can simply imprison the victims without trial or declare that they are members of a “banned” organisation16 and then the Israelis won’t have to reply to those pesky polite letters written by AI volunteers. Once again, double standards in the treatment of victims raise questions about the nature of any human rights NGO.
Human rights is denatured justice
Pushing for the observance of human rights doesn’t necessarily imply that one will obtain justice. The human rights agenda merely softens the edges of the status quo. As Amnesty’s position on the Israeli attacks on Gaza illustrates, pushing human rights can actually be incompatible with obtaining justice. Human rights are a bastardised, neutered and debased form of justice. The application and effectiveness of international law is bad enough, but a pick and choose legal framework with no enforcement is even worse. If one seeks justice, then it is best to avoid the human rights discourse; above all, it is best to avoid human rights organisations.
Palestinians should be wary of Mother Teresas peddling human rights snake oil. In exchange for giving up their resistance and complying with Amnesty’s neutered norms, they are unlikely to obtain any justice. One should be wary of human rights groups that don’t push for justice, play the role of Israel’s lawyer, and are bereft of solidarity with the victims. When the likes of Amnesty International come wagging their finger, it is best to keep the old blunderbuss near to hand.
- Nabeel Abraham, et al.; International Human Rights Organizations and the Palestine Question, Middle East Report (MERIP), Vol. 18, No. 1, January-February 1988, pp. 12 – 20.
- Dennis Bernstein and Francis Boyle, Amnesty on Jenin: an interview, CAQ, Summer 2002, pp. 9 – 12, 27.
- Paul de Rooij, AI: Say It Isn’t So, CounterPunch, 31 Oct. 2002
- Paul de Rooij, Amnesty International: The Case of a Rape Foretold, CounterPunch, 26 November 2003
- Paul de Rooij, Double Standards and Curious Silences / Amnesty International: A False Beacon, CounterPunch, 13 October 2004.
- PIWP database: list of articles on the politics of human rights
- Families Under the Rubble: Israeli Attacks on Inhabited Homes (MDE 15/032/2014), 5 November 2014.
“Nothing is immune”: Israel’s destruction of landmark buildings in Gaza (MDE 15/029/2014), 9 December 2014.
Unlawful and deadly: Rocket and mortar attacks by Palestinian armed groups during the 2014 Gaza/Israel conflict (MDE 21/1178/2015), 26 March 2015.
The fourth report about the execution of collaborators has not been published yet.
- I distinguish between Amnesty International, the international organization, and its well intentioned letter-writing volunteers.
- Possibly the best overview of the Gaza Massacre 2014 is Al Haq’s Divide and Conquer; http://alhaq.org/publications/publications-index/item/divide-and-conquer
- Statement made in 2006 by Dov Weisglas, one of Israel’s Dr. Strangeloves and close confidant of Ariel Sharon. Source: http://www.corkpsc.org/db.php?qid=1013
- Ruthie Blum interviews Arnon Soffer, ONE on ONE: It’s the demography, stupid, Jerusalem Post, 10 May 2004
- Ali Abunimah , Israel “directly targeted” children in drone strikes on Gaza, says rights group, Electronic Intifada, 17 April 2015.
- Amnesty loves to trot out military experts and dwell on the type of weapons used. First, there is an issue about the military expert, and who they are. What is the ethics about showing up in Gaza with a military person who might still be in the armed forces of, say, the UK? One can hardly expect them to be “independent”. And why dwell on the type of munitions if their use is already criminal to begin with? Focusing on the type of weapon deflects attention from the damage and the victims – that should be the emphasis.
- Alexander Cockburn, “How the US State Dept. Recruited Human Rights Groups to Cheer On the Bombing Raids: Those Incubator Babies, Once More?”, CounterPunch newsletter, April 1-15, 1999.
- While AI reports the total number of Palestinian rockets fired, there is no equivalent number to the totals used by the Israeli military. That number would be of interest because it would indicate the scale of the crimes committed. Tens of thousands of artillery shells were used, requiring them to be restocked by the United States in the middle of the offensive.
- The UN report on the Israeli attacks against schools lists several incidents where the Israelis falsely accused the Palestinians of firing on these schools. Such evidence should reduce the credibility of Israeli statements. See, e.g., Ali Abunimah, UN finds Israel killed dozens at Gaza schools but ducks call for accountability, Electronic Intifada, 28 April 2015.
- In the lead up to the 1991 invasion of Kuwait/Iraq, Amnesty issued a report on the so-called babies out of incubators story. President Bush Senior showcased the report on the eve of the attack, and used it for its full propaganda potential. When it was pointed out to Amnesty that they were pushing a propaganda hoax, it doubled its estimate of the number of children dumped from the incubators. To this day, the organisation has never apologised for playing a role in selling an American war.
- See: https://www.amnesty.org/en/who-we-are/ And notice that in the page after title page of Amnesty International’s reports the number of supporters increases from one report to the next.
- Kirsten Sellars, The Rise and Rise of Human Rights, Sutton Publishing, 29 April 2002. Herein she discusses the origin of Human Rights Watch.
- Malcolm Smart, Letter: Amnesty International’s Prisoner of Conscience lists and the reason for double standards, 9 August 2010 http://www.corkpsc.org/db.php?aid=133223.
- Another technique to rule out sympathetic treatment of Palestinians is to suggest that they are members of a banned organisation. NB: it is Israel which does the banning. Any organisation seeking liberation or to confront the Israeli dispossession or violence is deemed by the Israelis to be a “terrorist organisation”. Currently, Amnesty plays along with this charade, and also ignores Palestinians belonging to “political” organisations.
A jury in Manhattan, New York, has found the Palestinian Authority and other groups guilty in a ‘terrorist’ attack that left some Americans dead. So we have yet another one of the countless examples of the double-standard that exists in U.S. jurisprudence.
In 2003, U.S. citizen Rachel Corrie, 23, was in Palestine, helping the oppressed people there, teaching children and attempting to prevent house demolitions that are illegal under international law, when she was run over by a massive bulldozer operated by an Israeli soldier. The soldier ran over her once, burying her in the dirt, and then backed up, crushing her a second time. She was uncovered, still alive, although just barely, but died shortly thereafter. Her heartbroken and devastated parents contacted their elected officials, requesting a formal inquiry; this was denied. After all, if Israeli soldiers want to bulldoze a U.S. citizen, apparently that is within their rights. Israel held one of its usual inquiries into the situation, but found no reason to bring any charges against anyone.
British Citizen Tom Hurndall was unarmed and wearing a bright orange coat identifying him as International Solidarity Movement activist when an IDF (Israel Defense Force. Read: terrorist) soldier shot him in the head in 2004. Less than a year later, the terrorist, who was not named publically, but referred to only as ‘Sgt. T’, was convicted of manslaughter and sentenced to eight years in prison. While one may wonder why his conviction was only for manslaughter, at least there was an investigation, indictment, trial, conviction and sentence. Obviously, the Israeli lobby is not quite as powerful in Britain as it is in the U.S.
Let us look for a moment at the Federal Bureau of Investigation’s (FBI) definition of terrorism.
“’International terrorism’ means activities with the following three characteristics:
* Involve violent acts or acts dangerous to human life that violate federal or state law;
*Appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
*Occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”
Now, let us look at the U.S. role in the oppression of the Palestinians, in the context of this definition.
The U.S. provides Israel with $3.8 billion in aid every year, including the most advanced weaponry on the planet. Israel then uses this to bomb the Gaza Strip. Additionally, Israeli terrorists arbitrarily shoot peaceful protestors. These seem to be ‘violent acts’ that are ‘dangerous to human life’. Do they violate federal or state law? Wanton murder of unarmed civilians does, indeed, violate such laws.
With U.S. financing, Israel deprives Palestinians of their ability to go to school or work, through cruel and arbitrary checkpoints. It arrests men, women and children without charge, and holds them for months without granting them access to family or legal representation. It bombs private residences, schools, hospitals, mosques and United Nations refugee centers. All this is certainly intended ‘to intimidate or coerce a civilian population’.
Additionally, with full U.S. support, Israel is now withholding $100 million dollars per month that it collects in taxes for Palestine, as punishment for Palestine joining the International Criminal Court (ICC), and filing charges against Israel. This money is required by Palestine to pay salaries. Is this not intended ‘to influence the policy of a government by intimidation or coercion’?
Lastly, for this point, the U.S. provided all the funding for Israel’s carpet bombing of the Gaza Strip in the summer of 2014, and has done nothing to assist the people suffering there as a result. Over 2,500 Palestinians were killed, including over 500 children, some as young as newborns. Tens of thousands of people remain homeless. Prior to that, hundreds of Palestinians in the West Bank were arrested, many without charge. This certainly falls within the category of attempting ‘to affect the conduct of a government by mass destruction, assassination, or kidnapping’.
All of the unspeakable brutality referenced herein ‘occur(s) primarily outside the territorial jurisdiction of the U.S.’
So while a courtroom in New York decides that the PA is guilty of acts of terrorism, who is looking at the U.S.’s role as international terrorists? The ICC has begun its investigation into possible war crimes committed by Israel which, in the eyes of the U.S. is, like the U.S., above the law. As a result of this investigation, there is a possibility that Israel, at least in the court of international public opinion, will be held accountable for its crimes. Since it, also like the U.S., has refused to join the ICC, two examples of the few rogue nations that haven’t done so, the court cannot issue any consequences to it. But its refusal to participate will of itself be a damning indictment of Israel, and any findings will, of course, be widely distributed. All this will justifiably lead to Israel’s ever growing isolation as a global pariah, a situation even the mighty U.S. can’t resolve.
What does this verdict mean for Palestine? Probably not much. The verdict is meaningless, and the PA has no money to pay the fine anyway. It can’t even pay the salaries of its employees, thanks to Israel illegally withholding hundreds of millions of dollars belonging to Palestine. Internationally, the death of a few Americans is not seen as more tragic or meaningful than the death of thousands of Palestinians, much as the U.S. government might consider it to be so.
Judicial terrorism may have a slightly different definition than ‘terrorism’ as shown above. While not a violent act, and committed within the U.S.’s borders, its purpose is still ‘to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government’. So while not bloody like U.S. bombs, its goal is still the same.
Israel’s relations with much of the world are in disarray; more and more countries are preventing their businesses from trading with Israeli companies located on occupied territory. Universities around the world are voting to divest from Israel-owned companies. Entertainers and academics are refusing to appear in Israel. And even the U.S., the financier and puppet of Israel, has thrown an uncharacteristic hissy fit, not because of Israel’s abominable violation of human rights, but because Israeli Prime Murderer Benjamin Netanyahu accepted an invitation to speak to Congress without the approval and foreknowledge of President Barack Obama. While the reason may be trivial, the fact that the U.S. feels emboldened to criticize Israel, for the second time in less than a year (the first was a tepid criticism of Israel’s bombing of a known United Nations refugee center), does mark a significant change.
Where will it all lead? Eventually, to a free Palestine. This will not happen overnight, but all the signs are there: increasing loss of international patience with the occupation; global recognition of the futility of ‘negotiations’; resolutions throughout much of Europe, calling on governments to recognize Palestine; shock and horror at Israeli atrocities. The people are finally learning the reality of apartheid Israel, and are demanding that their governments respond. Their efforts must continue; too many lives are at stake to allow this to continue.
Robert Fantina’s latest book is Empire, Racism and Genocide: a History of US Foreign Policy (Red Pill Press).
An Israel based rights organisation yesterday filed war crimes complaints against three Palestinian leaders before the International Criminal Court (ICC) in The Hague, Israel’s Yedioth Ahronoth newspaper revealed.
The Shurat HaDin Law Centre filed the complaints against Deputy Secretary of the Fatah Central Committee Jibril Rajoub, Prime Minister Rami Hamdallah, and intelligence chief Majid Faraj.
Similar complaints were made earlier against President Mahmoud Abbas and the head of Hamas’ political bureau,Khaled Meshaal over their alleged role “in committing war crimes and harm to human rights”.
According to the paper, the Israeli organisation accuses the Palestinian officials of committing “acts of terror, torture and harm to human rights”.
Shurat HaDin – Israel Law Center formally requested the International Criminal Court (ICC) prosecutor open an investigation into alleged war crimes committed by Palestinian Authority President Mahmoud Abbas.
The claim is regarding “reports of Fatah-affiliated armed groups firing significant numbers of rockets on Israel from Gaza during Operation Protective Edge war along with Hamas. Rocket fire on civilians is a war crime under international law”, a statement published on the group’s website said.
“We argue that Mahmoud Abbas is vicariously liable for the Fatah armed groups’ actions on July 10, 25 and 27, and August 8. As their responsible superior, Abbas exercises effective command and control of the terror organisation,” they continued.
Shurat HaDin said Abbas can be tried at the ICC because he is a Jordanian citizen and the Kingdom is a member of the court in The Hague.
It added: “If Shurat HaDin does not win this case, it is ready to go after Abbas for terrorist attacks during the Second Intifada should he ever decide to have the Palestinian Authority join the ICC’s Rome Statute.”
Shurat HaDin head Nitsana Darshan- Leitner said that the organisation “will not allow Fatah to carry out rocket attacks on Israeli population centres, while hypocritically advocating Palestinian membership in the ICC. Abbas falsely believes that alleged crimes against Arabs are the only ones that should be prosecuted.”
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