Tuesday, April 22, 2014

Iraq War Crimes & International Legal System Ap2014


                                  I8TH CONGRESS

                        BRUSSELS April 15-19 2014


                              IRAQ COMMISSION


                         Session 4- April 16 2014


          War Crimes and the International Legal System



                 The Duality of an International Financial, Political, and Legal System

                       Conferring Impunity on Major War Criminals


                               Niloufer Bhagwat


  Irreconcilable contradiction     

    As  we look back  at a quarter of a century of developments on the vital issue of  war and the absence of peace ; with  successive criminal wars waged , for  seizure of resources, for control of strategic regions for hydrocarbon pipelines,  for uranium mines,  heroin , opium and the drug trade ; for capture of markets , seeds and even river systems, for confiscation of   national savings of entire societies , including  bank deposits and  gold in vaults; inflicting genocide and every conceivable war crime ; it is necessary  to rid ourselves of  illusions and  reappraise  economic and   political systems  and the international  legal system that has been put in place in recent decades , after the cold war , to facilitate this criminality .

       Leading  governments of the world have been integral to the subversion process, permitting  the diktat  of imperialism in financial , economic , trade and military relations and within the United Nations system; on the capitulation of the  only alternative political system which was in place, as a buffer of sorts, whatever its deficiencies .Presently many regions of the world have been turned into a  fascistic and military arena for a  vast criminal enterprise, assured of impunity by the imposition of the  New World  legal order .

        We  as jurists and lawyers seem to have been  carried away by our own illusions, believing  that it was possible to avoid war, irrespective of the nature of the  economic and political system of dominant nations , by merely advocating legal structures and systems, relying on precedents and pacifism , rather than on opposition to the  political and economic systems, using war as  alternative policy , by financial and other monopolies seeking to extend themselves everywhere in the world for profits ,by any and every means . Could such  political systems be the basis for a just international legal order in the world .

   We naively believed in the exalted promises held out at the Nuremberg and Far East Trials (Tokyo), side stepping the important dissent of Judge Radhabinod Pal at the Far East Trials, that these trials represented a system of "victor's justice". Judge Pal  while  fully  acknowledging Japan's war time atrocities and the Nanking massacres, highlighted  that the  exclusion of Western colonialism  and the use of the Atomic bombs by the United States on Hiroshima and Nagasaki , the ruthless  bombing of civilians  in several cities , from the  terms of reference of the war crimes referred for prosecution ;and  the exclusion from   consideration of the   US provocative  ultimatum to Japan prior to the War , was  "unjust and unreasonable " and "would not contribute to a lasting peace" .This ratio of Judge Pal's judgment  was not limited to Japan and Germany. The judgment observed that : " It does not comply with the idea of international justice that only vanquished states are obliged to surrender their own subjects to jurisdiction of an international tribunal for the punishment of war crimes"1

        Despite the magnitude of destruction by both Axis and Allied powers, very few were really tried .At Nuremberg only 22 Nazi political and military leaders, 11 were executed. At the separate Tribunals appointed by the US, British and French, another 500 executed and approximately 1000 sentenced to life imprisonment, or a lesser sentence. The Far East Tribunal tried 28 Japanese political and military leaders, 7 were executed. With the revival of hostility to the former USSR,   a program was instituted   to re-integrate Germany and Japan into the Western Defense Alliance System .2

  This dissenting judgment  of Judge Pal  cautioned  against a  limited approach, observing that: " questions of law are not decided in intellectual quarantine in which legal doctrine and local history of the dispute alone are retained , and all else forcibly excluded….." which was the approach of the Security Council appointed ad hoc Tribunals,  the  International Criminal Tribunal on former  Yugoslavia and the International Criminal Tribunal for Rwanda, in view of  the  geopolitical and self serving  objectives behind the appointment of the Tribunals.

  The juridical reasons why the Nuremberg and Far East Trials found acceptance and were embedded in Customary  International law and Conventions.

     The rational behind the juridical acceptance of the Nuremberg and Tokyo trials were two important jurisprudential advances.

   The first was the solemn undertaking given by the distinguished jurist and Chief US Prosecutor, former US Supreme Court Judge Robert Jackson on behalf of the government of the United States:

    " If certain acts of violation of treaties are crimes , they are crimes whether the United States does them or 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 against us".3

     Explicit in this undertaking  is the legal and equitable doctrine of 'estoppel ', which  precludes the government of the United States of America, allied powers, including the  NATO powers , "from now  denying or asserting anything contrary of that which has been established as the truth ……….or by his ( its ) own deed , acts or representation whether express or implied ."    

      The second reason for wider acceptance of the Nuremberg and Fast East Trials   was its declaration that waging   a war of aggression is a crime.

     The Nuremberg Tribunal accepting   submissions of the Chief Prosecutor of the United States and other prosecutors held that: "War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression therefore is not only an international crime; it is the Supreme International crime ………it contains within itself, the accumulated evil of the whole."  4    

           The confidence of  jurists in the universality  of these principles was  belied by the  history of the immediate  post war period , with brutal wars of aggression waged  among other countries , in Korea, in Algeria ,  in Vietnam , with millions of civilians killed ;  Napalm and  defoliants  such as Agent Orange were   used to destroy  farm land and forests , with permanent genetic damage of those exposed with no ad hoc tribunals  appointed , and no trials and no reparation .

     Ironically just before  the Allied powers tried  Nazi Germany for genocide, in 1943-1944,   3 - 5 million Indians  died of man made famine referred to as the ' Great Bengal Famine', 5  a 'holocaust'( repeatedly inflicted on India during colonial rule)by the British colonial power  procuring food grains for  war fronts, even as 2.5 million   Indian soldiers were deployed by the Empire in key sectors in Europe, North Africa , West Asia and South East Asia; a war in which they had no stake , enslaved as their country was .

The ideological basis  for successive wars of aggression.

      Global corporate propaganda pronounced the end of the "Cold War", with   the capitulation of the Socialist systems, and the fragmentation of the USSR, despite a referendum in which every Republic of the former USSR voted for continuance of a Union.  Russia,  a member of the Security Council, and many former Republics became a "basket case "an appendage of Western financial institutions, under 'economic reforms".

     What were the nature of forces which emerged victorious? 'The dominant force in to-day's financial zed globalization is the Imperialist capitalism of oligopolies of which financial oligopolies constitute the headquarters backed up by the power of states  …and the so –called international economic organizations that serve their interests . "6 With the capitulation of the Soviet Union, the United States assumed "the role of the capital system as such, subsuming under itself by all means at its disposal all rival powers" leading the world into the "potentially deadliest phase of Imperialism."7

     The Project for the New American Century (which the Brussels Tribunal had focused on in 2002) against this financial and  geopolitical  backdrop , planned for a " New American Century", in alliance with NATO and the Triad, with  the  ideological construct  for' continuous'  and 'endless wars in our lifetime ' including the 'war of terror' which began with a false flag operation on 9/11 .

    The PNAC project was  reinforced  by UK and  European ideologues, including  senior diplomat Robert Cooper who helped  shape the foreign policy of former Prime Minister Tony Blair , and was special adviser to EU's Foreign Affairs  Chief , Xavier Solana and by France's  Bernard Henri-Levy,  among others in Europe.

 Robert Cooper's essay "The New Liberal Imperialism", called   for new wars:

      "Among ourselves, we operate on the basis of laws…….. But when dealing with more old –fashioned kind of states outside the post modern conditions of Europe, we need to revert to rougher methods of an earlier era – force , pre-emptive attack , deception……… what form should intervention take ? The most logical way ………..and the one most employed is colonization………though the opportunities, perhaps even the need for colonization is as great as it was in the 19th Century ……..What is needed is a new kind of Imperialism …….. First there is the voluntary Imperialism of the global economy. This is usually operated by a global consortium  though international financial institutions such as the IMF and World Bank etc is characteristic of the new Imperialism……the second form of postmodern imperialism may be called the imperialism of neighbours ". 8

  At   Chicago on 22nd April 1999 Prime Minister Tony Blair had earlier   pronounced:

     " Twenty years ago  we would not have been fighting in Kosovo ……the fact that we are engaged is the result of  a wide range of changes-the end of the cold war …… the world has changed in a fundamental way . Globalization has transformed our economies…. But globalization is not just economic. It is also a political and security phenomenon……….Many of our-problems our caused by the other side of the world ………financial instability in Asia disturbs jobs ……….even in my constituency ……..our armed forces have been busier than usual –delivering humanitarian aid deterring attacks  on defenseless people backing up UN resolutions and occasionally engaging in wars as we did in the Gulf in 1991 and our currently doing in the Balkans …………..at the end of this century the US has emerged by far the strongest state . It has no dreams of world conquest and is not seeking to colonize."9

         Across the Atlantic Bernard Henri –Levy in France apart from justifying the new imperialism , in a press conference on 24th March 2011  attempted to make out a  case for  so called ' humanitarian' bombing of Libya , which the International Court of Justice had pronounced as impermissible in the Nicaragua case 10,  even as covert Islamist mercenaries  recruited by private security agencies with the support of  NATO,  Qatar , Saudi Arabia , were committing agent provocateur acts within Libya, 11 and thereafter in Syria. The new warfare strategy includes covert and  privatized warfare, with  private Security Agencies such as Black Water ,which mutate, changing their nomenclature from one conflict to another, hiring killer mercenaries and death squads  for attack ; deploying fascist militias  or special  forces on the ground,  or even agent provocateur  sniper fire,  to  create conditions for regime change. A pre-meditated war of aggression was waged on Libya using 9,400 bombing sorties flown by NATO, bombing indiscriminately, civilians and civilian infrastructure. Till date no has been tried for this criminal war of aggression or war crimes; ironically the former leaders  of President Gaddafi's government , were referred to the ICC as demanded by those  Human Rights organizations , an extension of NATO , funded by corporate foundations.

 . Devising a new international legal strategy and a new International Legal System for intervention and control, as an extension of the strategy for war.       

The New World  Economic and Political Order as it emerged in 1991, required a different international legal system for  the penetration of finance capital into every region  and the  'multi-nationalization' of the world through the WTO  and financial and military means .The  end of the cold war  paved the way for the 'New International Legal System', even as the acquiescence of China was secured  at the relevant time,  due to the economic and financial agreements and alliances in place for rapid capitalist  development of  China, advantageous to western companies , benefiting from the disciplined and cheap labor of Chinese workers.

     One of the  first acts  in pursuance of the new  International legal  hegemony post 1990,  was the gross  misuse  by the US-UK dominated Security Council  of  provisions of the UN Charter, in particular  Chapter VII ,the so called  peace keeping powers of the Security Council. It was this chapter which was used to impose and indefinitely continue illegal sanctions on Iraq, which was war by imposition of hunger. The  sanctions regime imposed  in August  1990, a near total financial and trade embargo ,when the Iraqi army entered Kuwait was  continued for  more than 12  years, and  lifted  only after the  2003 war  despite the  fact that Iraqi forces withdrew  from Kuwait in early  1991 .

 Justice C. Weeramantry one of the presiding Judges of the International Court of Justice, observed in the Lockerbie case:

             " That the history of the UN …….corroborates the view that a limitation on the plenitude of Security Council's power is that the  those powers must be exercised in accordance with well established principles of International Law".12

      Emboldened at the end of the Cold War , one of the largest coalition of forces for war  was assembled and  led by the US and UK  in the first Gulf War , flying   10,000 bombing sorties on military and civilian targets , dropping 85,000 bombs leaving 250,000 dead including 100,000 Iraqi soldiers  , most of whom had indicated their  desire  to  surrender  and were retreating  on the " Highway of Death"; the rest were civilians.  Napalm, Fuel Air Explosives, Bunker busters and Uranium and Depleted Uranium munitions were used which creating an environmental catastrophe for Iraq with permanent genetic damage to all exposed, for billions of years. Deformed births commenced immediately after the First Gulf War. Business Centers, schools , hospitals , mosques , churches , shelters , residential areas , historical sites , museums , private vehicles etc all were bombed indiscriminately . Economic warfare through bombing was also carried out to reduce Iraq to a pre-industrial age, 'excessive force was used that went well beyond normal war aims' 13.

In  these conditions, Iraq  did not pose any threat to anyone ; yet sanctions were continued  in clear  violation of  article  29 of the Fourth Geneva Conventions 1949 , applicable during hostilities, which imposes an obligation during an international armed conflict to authorize and facilitate passage of relief goods that is medical , food, and all essential supplies and religious objects,  all necessities for children under 15, expectant mothers and maternity cases .The Geneva Conventions were  clearly  applicable , as the  US-UK were   still resorting to air strikes ,and imposing  and controlling Iraq  by use of its air forces, with  " No Fly Zones" imposed  on Iraqi territory continuously from 1990 to 2003, and thereafter . That there was a clear intent by these governments to impose genocide in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is also established, as these members of NATO were wholly aware of official reports received , and reports of humanitarian agencies, that sanctions were seriously impacting the lives of civilians including all vulnerable sections, and had led to a humanitarian disaster .

  Under Article 54 of the Additional Protocol I to the Geneva Convention, and article 14 of Additional Protocol II to the Geneva Conventions, both jus cogens, no collective sanctions may be imposed in a manner so as to cause the civilian population to starve, or deny them clean drinking water or purification plants. If a significant segment of the civilian population falls below subsistence levels, economic sanctions are illegal and starvation as a method of warfare is prohibited. Article 55 and 59 of the Fourth Geneva Convention require the establishment of a regime in occupied territory to ensure supply of food and medicine, as do other provisions of the 1977 Additional Protocols I and II to the Geneva Conventions. "The entire regime of sanctions in Iraq  was in gross violation of the right to life under Article 6 of the International Covenant on Civil and Political Rights ,1966; Article 2 of the European Covenant for the Protection of Human Rights  and Fundamental Freedom 1950 and Article 4 of the African Charter on Human Rights." 14.

      The final word on the manner in which sanctions on Iraq  were  subversive of the UN Charter and   Chapter VII, came from the Secretary General of the United Nations, Kofi Annan, who later was to declare the 2003 invasion of Iraq illegal:

          "Let me conclude by saying that the humanitarian situation in Iraq poses serious moral dilemmas for the organization. The United Nations has always been on the side of the vulnerable and weak, and has always sought to relieve suffering, yet here we are accused of causing suffering to an entire population. We are in danger of losing the argument and the propaganda war – if we haven't already lost it – about who is responsible for the situation."

      The US-UK dominated Security Council was undeterred by this exposure of the illegalities of sanctions and that sanctions in Iraq  were a form of warfare  ,  even as per the representatives of the United Nations in Iraq ;  the NATO dominated Security Council  proceeded to   impose  sanctions on the other targets  of NATO , earlier former Yugoslavia,  and  thereafter Iran ,  attempting to illegally  strangulate Iran's  financial and trade activities; this time the excuse was the  alleged ongoing preparation to  manufacture " nuclear weapons"; whereas in Iraq  it was " weapons of mass destruction", after the withdrawal from Kuwait, despite  nuclear and uranium and depleted uranium  weapons, among other satanic weapon systems flooding the arsenals of NATO and other allied powers like Israel , to destroy the world several times over, despite their use being illegal under International Humanitarian Law . An increasing number of countries trading with Iran, including members of the G 7, China, and India among others, privately concluded that they too were intended to be victims of this illegal sanctions regime, resulting in a search for financial and economic alternatives to the illegal international hegemony destroying trade in many regions.

           The  New World Order in 2001, placed six countries under notice of attack , with the   threat of use of small nuclear weapons,  including  on Iraq , North Korea , Syria and Iran ; proceeded  to bomb and  invade Afghanistan , even though the country was no threat to US –UK led forces, cruelly using every prohibited weapon  system , which they  justified by a false flag operation of  9/11, in which not a single Afghan citizen was involved, and thereafter invaded  Iraq in 2003 .These wars  was even more  brutal than the first Gulf war.

     During occupation of  Iraq ,death squads were unleashed on all sections of the population, like in Central America, in Salvador and Nicaragua , trained by special forces and private security agencies, for a brutal sectarian warfare to marginalize the resistance. Death  squads are still being unleashed in Iraq  against the civilian population of all denominations , the country has been pushed back into the dark ages ;more than one million Iraqis have been killed in the war , thousands die  every year after the war by causes directly related to the occupation  and at the hands of death squads, almost all of  them civilians.  Five  million  have been internally displaced and with a large number ,international refugees . The entire infrastructure of the country has been destroyed by war; intellectuals, doctors and academics  assassinated, in an attempt to wipe out cultural and historical memories of the Iraqi nation, which still exists . All these acts, including the 100 orders of Paul Bremer to  take over  the entire Iraqi economy, including the appropriation of Oil resources( not metered)  , by foreign banks and multinationals, constitute the most barbaric  war crimes on the Iraqi people , which includes  the crime of genocide . Donald Rumsfield, the voice of the' new barbarians' said: " at some stage the Iraqis will get tired of being killed"15. Presently orders have been  placed by President Malliki  for US arms imports, which will be  also be used  against Iraqi citizens seeking restoration of  the rule of law , an end to sectarian warfare,  the restoration of civic services, the dignity and equality of women , and a civilized judicial system , destroyed by the occupation and quisling governments installed under occupation . This demand comes from all sections of the Iraqi population.

    The   establishment of ad hoc tribunals for Yugoslavia) and Rwanda ultra vires of the UN Charter and Chapter VII.

        The timing of the establishment of  the  International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda , on 11th February 1993 and on 8th November 1994 respectively, by resolutions of the Security Council,  assumes significance  in view of the facts already referred to , that commencing with the   nineties and in the first few years of the twenty first century  there was little or  no opposition to the New World economic, political  and legal order being  imposed by US-UK , NATO and Israel.

        The ad hoc Tribunals for Yugoslavia and Rwanda were wholly illegal bodies. There    is no article in the Charter of the United Nations or in Chapter VII of the UN Charter  which permits the constitution of  judicial or quasi –judicial  tribunals  by the Security Council even as so called subsidiary organs . At  the relevant time and till the establishment of the International  Criminal Court  in 2002 , on obtaining  60 ratifications from member states , who had earlier  signed the Rome Treaty , international civil and criminal jurisdiction vested only in one body,  in the International Court of Justice .

       From  24th October 1945  the date that the UN Charter came into force till date ,no such powers  to appoint ad hoc tribunals  were ever read into the Chapter VII or the UN Charter , till such an interpretation suddenly  surfaced ,  at  the end of the so called cold war .As the word ad hoc implies, both these Tribunals were unusual bodies , as only two countries and regions  had been singled out , former Yugoslavia and Rwanda ( other such illegal  bodies were to be constituted in due course, such as the Special Tribunal for Lebanon , with  different structures )  the repeated Israeli aggressions on Palestinian territory and in Gaza , on Lebanon , on Syria in pursuance of Greater Israel, and   though Israel was in violation of hundreds of UN Security Council and General Assembly Resolutions, prima facie  committing wars of aggression , genocide and war crimes, received no such focus.

    Significantly though the International Criminal Tribunal for former Yugoslavia included in its terms of reference,  grave breaches of the Geneva Convention 1949,  violation of the laws and  customs of war ,genocide , and crimes against humanity ; it had been given  no mandate over  the crime  of  waging  a war of aggression , as the  United States led  NATO powers, were conscious of  what was really intended for former Yugoslavia,   a "death sentence" had been pronounced on the Federal Republic; to be fragmented  step by step, by inciting secession, by aggression and  bombings , sanctions, and even bribery and corruption by aid packages , to extradite former  President Slobodan Milosevic to the Hague  despite the ruling of the highest Court in Serbia that he could not be legally extradited .

         According to Michael Scharf who drafted the ICTY statute:

         " There was a clear consensus that the US would not support the inclusion of 'Crimes Against Peace' in the statute of the ICTY , notwithstanding the Nuremberg precedent ……in the final analysis , the United States government , which had been accused by human rights groups  and several governments  of committing ' Crimes Against Peace' with respect to recent military invasions such as the '89 invasion of Panama , did not want the ICTY to exercise jurisdiction over this offense, leading to precedents that might hamper similar U.S. military action in future ."16

     The  period prescribed for the exercise of jurisdiction for both Tribunals was also significant , whereas the ICTY was to have jurisdiction to try crimes committed after January 1991 until determined by the Security Council , with jurisdiction  left open ended, to cover the entire period of the saga of the internal conflicts of the Balkan right until all propaganda and  strategic objectives had been achieved , including the bombing of former Yugoslavia and Kosovo, and the indictment of the President Slobodan Milosevic which took place  after the bombing began to cover up for  the armed attack by NATO forces ; the ICTR was confined to indictment of crimes committed from January  1994 till the end of 1994 , for genocide , war crimes and crimes against humanity committed by  prominent Hutus,  and to prevent the Rwandan Patriotic Force government which had assumed office through military means and aid of Ugandan forces, with covert  support from the United States and the UK , from being indicted  for war crimes and crimes  against humanity,   including, for the pursuit of more than a million  Hutu refugees who had fled into the Eastern Congo .

       In  both countries in Yugoslavia and Rwanda  ,  every ethnic group and tribe  was  trained and  encouraged to commit atrocities on the other, by  lighting the  tinder box  of racial , ethnic ,economic and  political fratricide ; with NATO powers acting in unison as in Yugoslavia,  or in conflict and competition  as  US and France were in Rwanda.  In former Yugoslavia , the Federal State was obstructed from asserting control by the EU  with active support for secession, in the name of human rights and democracy; the independence of former Republics of Yugoslavia seceding,  like Croatia , were swiftly recognized  ; the same policy was adopted for Bosnia and Kosovo .Both Bosnia and Kosovo were  covertly supplied Islamist fighters,  the  " Mujahideen "  from friendly Asian governments,  acting in tandem with NATO  to wage war against the former  Yugoslav  army , to incite internal conflict for intervention by NATO, to balkanize  former Yugoslavia, a member state of the UN .

            The  Judges of both Tribunals the ICTY and ICTR were to be elected by the General Assembly , from a panel short listed after careful screening   by the Security Council ,  before the General Assembly vote. The Security Council controlled entirely the appointment of Judges and the  appointment of the  office of the Prosecutor, the most important functionary. In the case of the ICTY, generous funding was received from time to time by the United States and  Foundations, including donations by George Soros .Memoirs of Carla Del Ponte and interviews of some who had held the office of  Chief Prosecutors  ,  later disclosed the  nature of influences  and  the reason why the Rwanda Patriotic Front's war crimes on the Hutus were not the subject matter of indictment , despite reports of  war crimes by the RPF.

       From  the early months and years immediately  preceding and following the appointment of the Tribunals , the propaganda narrative of  the dominant US-UK  powers in the Security Council  singled out mainly  the Serbs in former Yugoslavia as responsible,  and the  Hutus in Rwanda for the genocide of  approximately  800,000 Tutsis and moderate Hutus ; the war crimes and ethnic cleansing committed by other sides to the conflict were suppressed or down played ; so that this  narrative should be in keeping with the legal narrative before the Tribunals ,dovetailed with  their strategic policy. The Serbs were to be held primarily  responsible,  as all other sides of the conflict were being trained by NATO special forces ; and  the Hutus alone were  indicted for the genocide  of Tutsis in Rwanda, though the advancing Rwandan Patriotic Front  had committed war crimes on  Hutus in 1994 itself , and   the killings of Hutu refugees in the Eastern Congo where more than a million  had fled continued  by the RPF  after  1994, in alliance with  other military forces deployed in the Eastern Congo .  17

       The involvement of foreign powers in the conflict  in Yugoslavia and  Rwanda ,  with members of the Security Council among others having  trained,  aided and assisted rival forces ,  including the United States and  France, was not  a part of the legal narrative .Both Tribunals were used for a geopolitical purpose of  penetrating and extending economic and political control , and never  intended to resolve the issue  between the warring parties , to keep alive the  ethnic conflicts through the widely publicized use of the Tribunals .

      It was with a view to test the so called objectivity of the International Criminal Tribunal for  Yugoslavia,  that  several organizations   filed  detailed complaints  with the prosecutor of the ICTY , against the  NATO leaders responsible for the  NATO bombings of Yugoslavia. Among the complainants was  the  complaint filed by  the Belgrade Law faculty  on 3rd April  1999; one was  from Canada supported by the American Jurists Association and another was filed by  the Movement for the Advancement of International Criminal Law . The  complaints  were directed against   all the heads of government , foreign ministers and defense ministers  of the 19 NATO countries involved in the bombing operations  , including the Secretary General of NATO ,and eight generals, including Supreme Commander Wesley   Clark , for "crimes against the laws and customs of war' and 'crimes against humanity' covered by the ICTY statute .

 The  territory of former Yugoslavia was relentlessly bombed for 78 days , using 25,000 bombs and missiles, only because President Milosevic had not immediately  accepted the Rambouillet accord  presented on behalf of NATO,  demanding  that with immediate effect NATO forces should not only be permitted to be stationed in Kosovo, which was the subject matter of the negotiations;  but all over in Yugoslavia, for an unlimited period of time with total immunity from all civil and criminal liability, with  the right to use aircraft , train , transport , ports etc without paying costs or charges .The bombings like in Iraq during the first Gulf war and in 2003, bombed the  civilian population  and civilian infrastructure  with prohibited weaponry and missiles, ( including Depleted Uranium used in Bunker Busters and other munitions ). Everything was bombed,  hospitals, schools , factories , bridges , railway lines , trains , chemical plants, oil refineries , fertilizer factories  power grids , livestock , religious monuments, archeological sites  etc including the Chinese embassy .

    In the press briefing on behalf of NATO on 25 May 1999 , Jamie Shea, official spokesman of NATO forces said:

     " If President Milosevic really wants all of his population to have water and electricity all he has to do  is accept NATO's five conditions and we will stop this campaign……..if this has civilian consequences , it's for him to deal with ……."

      Whereas   President Milosevic was indicted  for genocide , war crimes and crimes against humanity ,significantly at the height of NATO's bombing campaign , to camouflage the real objective  of the bombing and attribute  it to Serbian obduracy and war crimes ; till date not a single leader or military personnel of NATO has been charged with war crimes or crimes against humanity before the ICTY;  though the matter was pursued relentlessly by all complainants against NATO , even  after Carla Del Ponte was appointed to replace Louise Arbour. The statement made by the Prosecutor Carla Del Ponte of the ICTY on several complaints of war crimes and crimes against humanity made against NATO leaders was that NATO was absolved ,  without investigation .18

    The International Court of Justice failed to protect  the people of former Yugoslavia. A  few days into the bombings,  the government of   late President Slobodan Milosevic applied to the ICJ  for " provisional measures",  that is an injunction to restrain  the ongoing  bombing by NATO ,on the ground that this would result in a  " genocide" ; the ICJ  on  basis of technicalities of  the acceptance of jurisdiction of  the Court , denied the request of the government of Yugoslavia , interalia on the ground that on the date of the application there was no prima facie apprehension that the bombing of Yugoslavia by NATO would result in " genocide", though the government of former  Yugoslavia submitted in its application  that  civilians and all civilian structures had been targeted  using missiles and  Depleted Uranium munitions among others. This was the conclusion of the ICJ, despite the ruling at Nuremberg that a war of aggression is the 'Supreme International Crime' as "it contains within itself, the accumulated evil of the whole"; that is genocide, war crimes and crimes against humanity  are all direct  consequence of  a war of aggression . This ruling of Nuremberg ,  was adequate for the ICJ to  have restrained the bombing ,on the application for provisional measures .19

 International Criminal Court Statute violates the ' Rule of Law'-Major War Criminals given Impunity , even  as small countries  targeted for political reasons.

            On 1st July 2002 the Rome statute of the International Criminal Court came into force on 60 states ratifying the statute. The " Supreme International Crime', the crime of waging a war of aggression, was significantly   missing from  the list of crimes over which the ICC had jurisdiction; indicating the extraordinary influence brought to bear on the drafting of the statute by major war criminals operating behind the scenes . This statute conflicts with the rule of law .A  basic principle of criminal jurisprudence  has been violated in by the Statute of the ICC, in so far as  the permanent members of the Security Council can prevent any referral in respect of their own crimes by the exercise of a veto, while insisting that smaller countries bow to their diktat of referral   for 'situations' requiring investigation and trial,  including situations purely of domestic criminal jurisdiction .

       The  conference held to review the working of the statute in  2010 at Kampala, while  finally defining  a ' war of aggression " has postponed its  inclusion as a  crime to a date after  1st January  2017,  when member states may activate the issue ,which will be   required to be voted on by two-thirds of the member states and ratified by  a minimum  of  30 ; with an  astounding proviso , that  as and when the amendment is adopted ,individual  member states can exclude themselves from the jurisdiction of the ICC in respect of the crime of waging a war of aggression . What happens to the Nuremberg principle? Is  the 'International Criminal Court Law ' movement telling us that until 2017 there is no " crime of waging a war of aggression", and not till the statute is amended; and that Major War Criminals can exclude themselves whether non members or members , and so can other  members to the statute ; proposals  in gross  violation of the Vienna Convention on  the Laws of Treaties 1969  , derogating substantially from the  ICC statute which is a Multilateral  Treaty and has as its  objective  the prosecution of war crimes. This curious approach, despite the Nuremberg principles and the UN  Charter preamble and objectives , constitutes clear  evidence that aggressive war is actual state policy of the dominant economic and political powers.       

          In contrast to this  approach on the crime  of  waging a war of aggression ,  the provisions of the statute of the International Criminal Court violate  customary International Law , the United Nations Charter and the principle of State sovereignty , in respect of  crimes committed within a nation state, which are not war crimes or crimes against humanity committed in an interstate armed conflict / armed conflict,  by introducing   the concept of " crimes against humanity" unrelated to  an interstate armed conflict /armed conflict. To effectively camouflage this  " legal intervention /aggression " into internal sovereign criminal jurisdiction of a nation  state, in violation of customary international law, the ICC statute claims to further " complementarity" between national and international jurisdiction ,in respect of the crimes defined in the statute, with the provision  that it is primarily national courts which will exercise jurisdiction,  provided that the ICC and the Prosecutor are satisfied  that the investigation , prosecution and penalty are  adequate  as determined by the Court and the Prosecutor; introducing an element of subjectivity and politicization into the decision not in keeping with the principle of 'complementarity ' in particular for crimes within national jurisdiction defined as "Crimes Against Humanity " , with no linkages to war crimes or crimes against humanity committed during an interstate  armed conflict /armed conflict .

      This is a legal mockery of the International and national legal systems, and their respective and separate jurisdictions. To give one example , the case of  the Kenyan head of state and deputy prime minister, which has been  referred to the ICC by the Security Council, for post election violence which allegedly  resulted in 1000 deaths  in the post election period, an internal issue for Kenyan criminal jurisdiction . That the ICC should be directed by Security Council referral, to investigate, prosecute and penalize such offences, which fall  within national jurisdiction, is a clear case of the intention to use the Rome Statute in furtherance of the 'New World Order' ,to bring to heel governments not toeing the economic and political diktat of major powers and their military alliance systems.

      The duplicity of the United States government  is established from the fact that even though it gave  other governments the impression that it was signing the treaty and did sign it; simultaneously  its concerned officials were finalizing  the American Service Members Protection Act  2002 which was legislated  , also known as the " Hague Invasion Act " , as it  empowers the US President to use " all means necessary and appropriate measures  to bring  about release from captivity of US or allied personnel  detained or imprisoned by or on behalf of the ICC ." This Act also has provisions for cutting off military aid to nations who co-operate with the ICC, except NATO and other close alliance partners. President Clinton signed the agreement as per premeditated strategy to lure into the treaty other states, as a minimum of signatures and ratifications were required to bring it into force. President Bush (Jr.) unsigned immediately on assuming office, in continuance of the same strategy.

        This apart the government of the United States has been coercing and persuading  governments into signing Immunity agreements under Article 98 ( 2 ) of the ICC statute,  to exclude US personnel and those employed by the US, from being handed over to the ICC, in furtherance of the objectives of the Statute . Till date more than 120 such agreements have been signed. Earlier the government of the United States by Resolution No.1422 of 2002 of the Security Council secured immunity for US peace keeping forces from orders of the ICC. .            Criticism against the ICC statute has also been directed on the provisions relating to the  Office of the Prosecutor ( OTP ), conferred vast and arbitrary powers to investigate 'proprio motu' on the prosecutor's own initiative , or  not to investigate even when there is a complaint ,in the discretion of the prosecutor .So far the OTP has investigated eight situations, all  concerned with the   African  continent , relating  to the  Democratic Republic of Congo , Uganda, , Central African Republic , Darfur/Sudan , Kenya, Libya , Ivory Coast and Mali ,out of which three namely  Kenya, Darfur /Sudan  and Libya have been referred by the Security Council under referral powers. Apart from referral powers, the Security Council has also powers to postpone a trial, unheard of in any system of civilized jurisprudence.

     As a consequence the African Union has been increasingly critical of the ICC 20. At a  meeting held at Addis Ababa , leaders from the African Union 's  54 nation body, (  approximately   34  of  AU states are   members of the  ICC ) met to review the relationship of their countries with the ICC  on the ground of unjust treatment , in particular after the Kenyan case. The AU 's position is that far  worse atrocities have been committed in other states such as Myanmar , Iraq , Afghanistan , Colombia and Egypt, without any investigation or referral,  because of the bias against  African States. The Kenyan Parliament has resolved that Kenya must withdraw from the ICC statute.

         Consequently  the  ICC  is  seen in Africa  as a " tool to extend colonial domination" , in the context of referral of  issues relating to national criminal jurisdiction, with approximately   60% of   funding from the EU ,and  ICC personnel  substantially  recruited from the EU ,as  the Court has its headquarter at the Hague, in a member country of the EU . China and India have also  expressed reservation on the extensive powers of the Office of the Prosecutor and the nature of jurisdiction being exercised by the ICC, even in respect of non member states. With India concerned that the ICC in respect of certain articles of referral and postponement of trial has been subordinated to the Security Council, in effect to its permanent members, introducing a political element into the ICC .21

        In March 2009 "China expressed its regret and worry over the arrest warrant to the Sudan President issued by the International Criminal Court. China is opposed to any


action that could interfere with peaceful situation in Darfur and Sudan. At the moment the primary task of the international community is to preserve the stability of the Darfur region" 22 this position of the African Union and China,  indicates the reality that often referral to the ICC , among other problems with the Prosecutor's functioning ,  have exacerbated internal and regional tensions in Africa.        

   " Member states of the ICC from Africa are now alleging that  pressure was used to secure the ratification by 34 countries from Africa one of the largest constituencies of the EU for ratification of the Treaty to bring into force in 2002  by donor countries  as a condition for being part of the EU-Africa pact of  the Countonou economic  agreement "23 It this is so , it explains the strange provisions of the statute , which justify unusual  political interventions camouflaged as legal,  into internal issues of member and non member countries with no bearing whatsoever on interstate armed conflict /armed conflict .

      An analysis of the  International legal system  structured and put in place  at the end of the cold war,  conclusively establishes that this legal system  is in furtherance of  " New Imperialism, " with the United States government , Israel and  the  NATO military pact  the  "geopolitical lynchpin" of this 'New World Order'. The legacy of the fragmentation of Yugoslavia and the ICTY in pursuit of "Lebensraum", not living space, but economic space, is playing itself out  in the Ukraine. We are  back to where we were, with the " Gates of Hell Open", as the system seeks more wars , if not another world war as a way out of its crisis, as it did twice in the 20th Century. This explains the resistance to the inclusion of   the "Supreme International Crime", the crime of waging a war of aggression in the ICC statute and the innumerable immunity agreements signed,with the   real intentions, not covered even by a fig leaf.

     The solution now lies in exposing the duality of the International Legal System of a fascistic world order, and exposing its global alliances; with  a relentless campaign to overturn the foundations of a political and economic system which uses militarization, war and war crimes as an extension of economic and policy, making peace a mirage.



Significantly  even as the International Legal order has collapsed,  the rule of law is being

gradually abandoned on  the home front of so many countries waging war , as  these are two parts of the same whole .

 For those  losing heart , it is necessary to remember that  it took  approximately 42 years for Bangladesh to establish a national Bangladesh  War Crimes Tribunal  to try  collaborators and leaders of fascistic organizations ,citizens of Bangladesh, who had perpetrated    genocide and war crimes, during the 1971 war in the region. Some have been convicted and  the trials are still ongoing. The 'Shahbag' movement of 2013 of more than 500,000 young people assembled over several weeks in Bangladesh to support the trials, demanded   the death sentence for genocide and  war crimes; their logic was, that this was not a case of one or two persons killed, a whole country and society was sought to be destroyed, with thousands of intellectuals murdered and pushed into mass graves; that war  criminals are not ordinary criminals to be protected from the death sentence , they are  sociopaths and psychopaths, beyond humanity.

    Major war criminals have not only targeted individual countries, they target  the whole of humanity, in their own turn . It is in the interests of citizens whose governments are waging wars to create the political  conditions for  a  trial of  their own major war criminals , even as we do not give up our efforts to make them internationally accountable .After the bombing and killings in   Afghanistan , Iraq,  Palestine , former Yugoslavia ,  Libya , Syria , Lebanon , Somalia  the Horn of Africa ,  Yemen ,Afpak , Congo ,  Mali , Niger,  among many  other societies, tomorrow,  the same weapons may  be used by these governments on their citizens.

     In  memory of the martyrs of the united  Iraqi Resistance,  at this Commission let us pronounce  ' Non Pasaran' ( They Shall Not Pass), the stirring  words of La Passionara , leader of the broad alliance of  Spanish Republican forces in a similar historic situation. This time there will be no defeat .




1.  The Dissenting Opinion of the member for India (Radhagobind B. Pal) International Military Tribunal for the Far East (The Tokyo War Crimes Trial).

2. Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (University of North Carolina Press) 1998.

3. Robert Jackson, the Nuremberg Case.

4. Nuremberg Tribunal Judgment, 1946.

5. Gideon Polya, the Forgotten Holocaust -1943-44.

6. Samir Amin, Seize the Crisis, Monthly Review 61, NO.7 (Dec.2009 and Capitalism in the age of Globalization (London: Zed books, 1997).

7. Istavan Meszaros, Socialism and Barbarism.

8. Robert Cooper, the New Liberal Imperialism, Observer World View Extra, April 7 2002.

9. Address of Prime Minister Tony Blair at the Economic Club, Chicago, April 2 1999.

10. Nicaragua Case, Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) 1986.

11. Alex Lentier 'Bernard Henri Levy Makes a Humanitarian Case for Bombing Libya, WSWS, May 2014.

 12. Lockerbie case, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial incident at Lockerbie (Libya Arab Jamahiriya v. United Kingdom (Provisional Measures Stage) Judgment of Justice C. Weeramantry 1992.

13 Francis Boyle, International War Crimes: The Search for Justice ', Symposium held at Albany Law School, Feb 2, 1992.

14. Boris Kordoch,  The Limits of Economic Sanctions under International Law: The Case of Iraq .

15. Donald Rumsfield, Secretary of Defense, USA To-day, September 16, 2004.

16. Michael Scharf ,  Personal  communication dated 31st March 2003 ,quoted in Michael  Mandel  ' How America gets away with Murder ', Pluto Press 2004.



17. Report by the UN Office of the High Commissioner for Human Rights on war crimes and crimes against humanity committed by foreign militaries and armed entities in the Democratic Republic of Congo, including Eastern Congo, between 1993-2005.

18. Michael Mandel, 'How America Gets Away with Murder 'Pluto Press, 2004.

19. Case concerning  Legality of use of Force ( Yugoslavia v Belgium ; Canada; France; Germany ; Italy ; Netherlands; Portugal ; United Kingdom; United States of America, Request for the Indication of Provisional Measures Order( International Court of Justice )1999.

20. Faith Karimi, African Union accuses ICC of bias, seeks delay of cases against sitting leaders, CNN, Oct. 12, 2013.

21. Mwangi S. Kimanyi, Can the International Court play fair, Africa Focus, October 17, 2013.

22.http:www.telegraph.co.uk/news/worldnews/africaindianocean/Sudan/4940076/China-calls for –ICC case-against-Sudan president Omar-al –Bashir.

23. Mwangi S. Kimanyi, Can the International Court Play fair, Africa Focus, October 17, 2013.