, by S.M. MOHAMED IDRIS
The Prosecutor of the International Criminal Court (ICC), Louis Moreno Ocampo, has applied to the Court for a warrant of arrest against the President of Sudan, Omar Hassan Ahmad Al-Bashir. He is accused of committing the crime of genocide, crimes against humanity and war crimes in Darfur. It appears that the charges are based largely on interviews with aid workers and parties outside Darfur, and that the ICC prosecutors have not visited Darfur.
Ocampo’s bold move to indict the head of state while still in office for crimes under international law would have drawn universal praise and acclaim had it not been for the perception of many, including those who support the ICC, that it is adopting double standards in investigating and prosecuting alleged criminals. They also believe that it is being turned into an instrument for promoting the geo-political interests of big powers.
The Prosecutor has received thousands of communications involving alleged crimes by leaders of many countries, including the United States and Britain, but he has decided to open investigations on only four situations, all of them in Africa. The Court has issued twelve warrants of arrest at the request of the Prosecutor and most of them are against Africans.
Prosecuting and punishing petty dictators from small powerless Third World countries is laudable but the value of ICC’s work is diminished by its failure to act against leaders from the powerful Western nations or their allies who are responsible for much more serious crimes The Court lacks power and courage to go after the big war criminals and, therefore, to justify its existence, it has to prosecute and punish the petty ones.
The ICC has no power because the major powers do not recognize it and refuse to submit to its jurisdiction. The U.S has gone further and coerced 60 countries to sign agreements pledging not to hand over U.S nationals to the ICC. It cancelled military aid to 35 nations for refusing to sign the agreements.
Sudan is also not a signatory to the treaty governing the ICC which, therefore, has no jurisdiction over acts committed in Darfur. The ICC assumed jurisdiction over the situation in Sudan only upon reference by the U.N Security Council. According to a recent Inter Press News Agency report, it is the Western powers led by the U.S, Britain and France that want President Bashir prosecuted in the ICC while China and Russia are opposed to it. It is hypocritical for the U.S, which does not even recognize the ICC and has done everything possible to frustrate its proper functioning, to turn to the ICC to prosecute President Bashir and other Sudanese officials for alleged war crimes.
The worst war crimes, and crimes against humanity, in recent times have been committed in Iraq. The U.S aided by Britain launched an illegal war against Iraq, a sovereign nation, and committed unspeakable atrocities against the Iraqi people. More than 1 million have died as a result of the war. Nearly 5 million people have been displaced, 2.7 million internally and 2.3 million in refugee camps in neighbouring countries. Iraq’s economy, hospitals, schools and the infrastructure for basic social amenities have been destroyed.
The virus of sectarian hatred, conflict and violence has been let loose in Iraq and the relations between people who have lived in peace for centuries have been poisoned. The very fabric of Iraqi society has been irreparably damaged. There is no security in Iraq. The perpetrators of these heinous crimes - President Bush, former British Prime Minister Tony Blair and others – have not been brought to justice.
In July 2003, the Athens Bar Association lodged a 47-page complaint with the ICC Prosecutor against Tony Blair for crimes against humanity in Iraq. The complaint states: “The repeated blatant violations by the United States and Britain…of the stipulations of the four 1949 Geneva Conventions, the 1954 Convention of the Hague as well as of the International Criminal Court’s Charter constitute war crimes and crimes against humanity.”
Ocampo received over 240 complaints concerning Iraq but he declined to even investigate them on the excuse that “the Statute requirements to seek authorisation to initiate an investigation in the situation in Iraq have not been satisfied”. He defended his decision by arguing that the crimes committed by the coalition forces did not rise to the level of gravity required for the Court to investigate.
Yet, in March 2007, Baltasar Garzon, an investigating judge for Spain’s National Court, said that President George W. Bush and his allies eventually should face war crime charges for their actions in Iraq He called the war in Iraq “one of the most sordid and unjustifiable episodes in recent human history”. He said: “There is enough of an argument in 650,000 deaths for this investigation and inquiry to start without more delay," he said. Garzon became famous in 1999 when he tried to extradite Pinochet from Britain and try him for crimes against humanity.
Around the same time, Ocampo himself had told a British daily that President Bush and Tony Blair may one day face war crime charges before the ICC. If that is so, why has he not started investigation of the complaints against Blair?
Israeli leaders, both civil and military, have been responsible for the crimes against humanity committed against the powerless Palestinians. After the takeover of Gaza by Hamas in 2007, Israel imposed a cruel blockade and siege which destroyed the Gazan economy and caused deaths and terrible hardship to the 1.6 million people living there. This was Nazi-like collective punishment of the civilian population for electing Hamas in a free and fair election.
In an article for the Turkish newspaper ZAMAN, Richard Falk, a distinguished international law expert, wrote: “The entire population of Gaza is treated as the ‘enemy’ of Israel and little pretext is made in Tel Aviv of acknowledging the innocence of this long victimised society. To persist with such an approach under present circumstances is indeed genocidal, and risks destroying an entire Palestinian community that is an integral part of an ethnic whole. It is this prospect that makes appropriate the warning of a Palestinian holocaust in the making, and should remind the world of the famous post-Nazi pledge ‘never again.”
Israeli leaders, including Prime Minister Olmert, who are responsible for the “Palestinian holocaust in the making” have not been prosecuted and punished. Israel, like Sudan, does not recognize the ICC and therefore it has no jurisdiction to bring the Israeli leaders to justice. The U.N Security Council will not refer Israel to the ICC because of the fear of the U.S using its veto to protect its ally. As a result, the ICC is rendered powerless and impotent to make war criminals supported by the U.S accountable and subject to international law.
The ICC can be an important and useful international institution for upholding the rule of law, ensuring observance of human rights, and promoting peace with justice. But to play that invaluable role effectively, it needs the support of the major powers who must submit themselves to its jurisdiction. So long as these powers claim impunity for their nationals and the ICC is reduced to the role of prosecuting and punishing only those from poor countries, then it will be perceived by most people as an instrument for promoting the economic and geo-political interests of the rich countries, and not justice.
More than 50 years ago, Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: “No political or economic situation can justify the crime of aggression… If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” All nations, rich and poor, powerful and weak, must be equal before the law.
Non-governmental organizations like the Save Darfur Coalition have been campaigning and lobbying the Western governments and the U.N Security Council to act against Bashir and other Sudanese leaders for their alleged crimes against the people of Darfur.
If they are concerned about upholding international law, protecting human rights victims, and promoting peace with justice, then their resources and energies should also be directed towards getting the U.S to submit itself to the ICC jurisdiction and abandon the impunity claimed for its nationals. They should also take up the cause of the Palestinians, victims of Israeli ethnic cleansing, crimes against humanity and serious violation of human rights for more than six decades.