INTERNATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
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 .
References:
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.
