Justice for All
By Claudio Guler for ISN
Involvement by the International Criminal Court (ICC) in Afghanistan, Israel-Palestine and potentially the UK and Canada is showing itself an emerging challenge to the disparity between strong and weak states in international criminal justice. For the strong and high-minded, it is an inconvenient lot.
In many ways, including in particular implementation mechanisms for judicial decisions, a comprehensive framework for international criminal justice lags. The ICC, launched in 2002, institutionalized the international community’s resolve to hold to account individuals implicated in the violation of jus cogens or peremptory norms of international law, violations so grave as to make their perpetrators hostis humani generis or enemies of all mankind.
The Rome Statute of the ICC gives the Office of the Prosecutor (OTP) jurisdiction over war crimes, crimes against humanity and genocide, committed on the territories or by nationals of “States Parties.”
A principal impediment to the development of a comprehensive framework is the non-participation of strong states, hindered by their concerns over sovereignty and the potential for politicization of international judicial actions. Chief among them is the US. This category also includes China, Russia, India, much of the Middle East and North Africa, and Southeast Asia.
The weak
For states toward the bottom of the international power hierarchy, acceding to the Rome Statute yields benefits. These include: projecting deference for the rule of law, gaining access to a forum to influence other states, and earning a modicum of protection against the use of force by other - usually more powerful - states on their territories.
But with several Congolese in the dock, a head of state under indictment and external pagefat cat, rabble-rousing politicians in Kenya wondering who will be first to face the music, many in Africa perceive that the ICC is inordinately targeting the weak.
This perception, however, is misleading. The Democratic Republic of Congo, the Central African Republic, Uganda and Kenya are all ‘States Parties.’ Sudan is not; but was legally referred to the ICC by the UN Security Council. African countries, moreover, disproportionably suffer from dysfunctional judicial systems that often necessitate outside assistance.
In a broader sense, though, many observers of international affairs acknowledge the critique is legitimate. Strong states, particularly in the West, often preach justice, but seldom conform to their own standards internationally.
ICC involvement or the looming threat of ICC involvement in two ‘non-States Parties’ and two ‘States Parties,’ all regarded as strong or fairly strong actors in international affairs, suggests a correction may be in the works.
False alarm
Since September, conservative pundits in the US have fretted that external pageICC chief Prosecutor Louis Moreno-Ocampo’s decision to preliminarily look into allegations of Statute crimes by belligerents in Afghanistan could implicate US citizens. The development is precisely the scenario they warned of, they sigh; the external pageBush administration’s hostility toward the Court is vindicated. Afghanistan has been a States Party to the ICC since February 2003.
But, in speaking with ISN Security Watch, Ben Schiff, professor of politics at Oberlin College in Ohio and author of external pageBuilding the International Criminal Court, points out that, “The prosecutor's announcement that he's looking into allegations against combatant forces in Afghanistan should cause little concern in the US if its military justice system and civilian controls are operating properly and with adequate transparency to assure the OTP that ICC involvement is unnecessary.”
Niamatullah Ibrahimi, co-founder of external pageAfghanistan Watch, a human rights organization in Kabul, and the focal point of the Coalition for the International Criminal Court (CICC) in Afghanistan, explained to ISN Security Watch via e-mail that, “Although little is known about the prosecutor’s intentions in Afghanistan, two issues involving international forces remain the most controversial: detention and treatment of suspected insurgents and civilian casualties during their air bombardments. Many of their operations have apparently mistakenly hit civilian targets. An important question regarding these incidents is whether more careful planning and intelligence gathering could have avoided the damages caused to civilians.”
Schiff reckons, moreover, that the prosecutor’s preliminary investigation in Afghanistan may also yield information about the misdeeds of actors other than the US - including perhaps the Taliban. “This should be viewed as salutary by the US.”
Should Ocampo decide that US efforts are falling short, in theory, he could complicate travel for select US servicepersons or policymakers. Detention and transfer to The Hague, however, looks unlikely. Afghanistan’s 2002 ‘Article 98’ Bilateral Immunity Agreement (BIA) with the US precludes Kabul from surrendering US citizens to the ICC.
Upon entering office, the external pageObama administration rescinded the coercive sanctions that accompanied BIAs. All the same, the US-Afghan agreement remains on the books and it is unclear whether or not the Obama administration would move to enforce it.
Goldstone
The uncomfortable spotlight of international criminal justice has also fixed on Israel and its conduct during ‘Operation Cast Lead’ in December-January 2008-2009. Although Israel is not a States Party - necessitating a highly improbable UN Security Council referral for ICC intervention - international outrage at what was widely viewed as Tel Aviv’s disproportionate response to Hamas rocket fire produced the controversial Goldstone report.
The report urged both Hamas and Israel to conduct their own investigations into its findings. If they declined, it recommended the UN Security Council refer the situation to the OTP of the ICC.
Schiff argues, “Despite the invective to which it has been subjected, the Goldstone report did uphold a conventional interpretation of war crimes norms as established in the Geneva Conventions. The response to it has, predictably, been entirely political.
The report's effect might have been greater if the UN Human Rights Council itself had greater international respectability, but the basic problem is that any attempt to deal judicially with this extremely politicized situation gets submerged by vituperation. If the alternative to the Goldstone report was no international investigation or response to the Gaza conflict at all, then the fact that the investigation was carried out, responsibly drafted and publicized is, on balance, a positive measure in upholding international standards,” he said.
Not I…
Elsewhere, two countries that are also influential actors in international affairs as well as States Parties to the ICC are equally set to test their commitment to justice.
Humble Canada could face criminal action. Whistle-blower and Canadian diplomat Richard Colvin last month charged that Canadian Forces failed to properly monitor detainee conditions in Afghanistan. He also claimed that Ottawa ignored repeated warnings about detainee transfers to Afghan units known to perform torture.
The government initially dismissed calls for a public inquiry. Canada is a States Party and the ICC could intervene if Ottawa fails to maintain complementarity standards.
Human rights watchdogs have been calling on the UK to conduct judicial inquiries into allegations of British complicity in torture in Pakistan and elsewhere overseas for close to a year now. The government has stonewalled.
New York-based Human Rights Watch published a report, external pageCruel Britannia, last month, which details the cases of five UK citizens of Pakistani origin who claim to have been tortured in Pakistan by Pakistani security agencies between 2004 and 2007. The report finds no direct evidence of UK participation, but argues that complicity is obvious.
Amnesty International said in a external page10 August press statement: “Amnesty International urges the UK authorities not to pick and choose when they will observe their legal obligations: torture and complicity in torture are absolutely banned. It is high time for the British government to have its record assessed and for those who may be responsible for such serious abuses to be held accountable.”
According to a external page26 November Daily Mail article (UK), if swept to power in upcoming elections, the opposition Tories claim they would support a wider inquiry. The UK is a States Party, and although the press has eschewed the point so far, ICC intervention is plausible.
As US President Barack Obama stated in reaction to Iran's election turmoil in June, quoting Dr Martin Luther King, "The arc of the moral universe is long, but it bends towards justice."