Posts Tagged ‘International Criminal Court’

“After Hiroshima And Nagasaki, There Was Fallujah.”

April 17, 2010

By William Blum, ZNet, April 17, 2010

William Blum’s ZSpace Page

When did it begin, all this “We take your [call/problem/question] very seriously”? With answering-machine hell? As you wait endlessly, the company or government agency assures you that they take seriously whatever reason you’re calling. What a kind and thoughtful world we live in.

The BBC reported last month that doctors in the Iraqi city of Fallujah are reporting a high level of birth defects, with some blaming weapons used by the United States during its fierce onslaughts of 2004 and subsequently, which left much of the city in ruins. “It was like an earthquake,” a local engineer who was running for a national assembly seat told the Washington Post in 2005. “After Hiroshima and Nagasaki, there was Fallujah.” Now, the level of heart defects among newborn babies is said to be 13 times higher than in Europe.

Contyinues >>

Will Obama Vacate Iraq?

April 8, 2009

Nasir Khan, April 8, 2009

On February 27, 2009 President Barack Obama delivered his much-anticipated policy speech on Iraq. The important point in his announcement was the withdrawal of some U.S. troops from Iraq by August 31, 2010. However, it did not mean an end to the American occupation of Iraq, or an end to an illegal genocidal war that the Bush-Cheney administration had started. Despite his high-blown rhetoric about withdrawing from Iraq, Obama did not deal with many important questions. Thus what was not said cannot be regarded as an oversight but rather as an indication of how the new administration intends to pursue its policy objectives. Those who had wished to see a break by the new administration with the Bush-Cheney administration’s wars in Iraq and Afghanistan are concerned because they detect the continuation of the goal of the U.S. domination, which the American rulers usually refer to as the ‘U.S. interests’ in the region.

At present the U.S. has 142,000 combat troops in Iraq. But what is often glossed over is the fact that there is almost a parallel army of American mercenaries and private military contractors whose numbers range from 100,000 to 150,000. Thus both the regular fighting force and these mercenaries are virtual foreign occupiers. However, the planned withdrawal of U.S. troops will not amount to ending the U.S. occupation of Iraq. Obama wants to keep more than 50,000 occupying troops in Iraq. His innovation, if we can call it so, lies in classifying them as ‘non-combat’ troops or a ‘transitional force’. And what will they be doing? It is worth noticing how Obama formulates the policy objective that shows the real intentions of the occupiers: ‘we will retain a transitional force to carry out the three distinct functions: training, equipping , and advising Iraqi Security Forces as long as they remain non-sectarian; conducting targeted counterterrorism missions; and protecting our ongoing civilian and military efforts within Iraq.’

So, instead of ‘combat brigades’, the re-labelled ‘transitional force’ will carry on the ‘targeted counterterrorism missions’! This cannot fool anyone. What this in effect means is that that the 50,000 soldiers will continue to accomplish the ‘mission’ that the former U.S. president George W. Bush had laid out for them.

President Obama has plans to remove all such remaining U.S. troops from Iraq by the end of 2011. But things are far from certain. What will happens if the resistance against the occupier and its puppet regime in Baghdad continues and the U.S. policy-makers and military planners conclude that the challenge to American hegemony and its geopolitical interests in Iraq persists? In that case, this plan can be replaced with a new one neatly drafted by the Pentagon. Such concern was aired by the NBC’s Pentagon’s correspondent Jim Miklaszeswki on February 27, 2009 that ‘military commanders, despite their Status of Forces agreement with the Iraqi government that all U.S. forces would be out by the end of 2011, are already making plans for a significant number of troops to remain in Iraq beyond that 2011 deadline, assuming that the Status of Forces Agreement would be renegotiated. And one senior military commander told us that he expects large number of American troops to be in Iraq for the next 15 to 20 years.’ In case of such need to keep the American forces in Iraq, the puppet regime in Baghdad will hardly be in a position to resist the American diktat and pressure. That means the colonial occupation of Iraq according to U.S. designs and interests will continue.

There are a number of important issues that President Obama did not touch in his speech. What will happen to more than 100,000 mercenaries and private military contractors operating in Iraq? Dyncorp, Bechtel, Blackwater have been used by American military and they have been immune to any accountability for killing Iraqis. The recent change of name from Blackwater to ‘Xe’ does not change the mission of the mercenaries and their crimes in Iraq. Again, the ultimate responsibility for the actions of such people lies with the American government. The peace movement should demand the Obama administration to redress the issue.

In Baghdad’s heavily fortified Green Zone, the Bush administration built the largest embassy of any nation anywhere on Earth, a sprawling complex of buildings to accommodate up to 5,000 American diplomats and officials. That shows what long-term objectives the Bush administration had for Iraq and the Middle East. Besides, it was again the illegal action of the occupying military power in which the people of Iraq had no say. An embassy is meant for diplomatic relations between two states. But the gigantic building to accommodate thousands of officials in the capital of an occupied oil-rich country shows the true intentions of the American rulers. These buildings should be closed down or handed over to the Iraqis.

The United States has 58 permanent military bases in Iraq, as a part of the larger network of American military bases around the world. President Obama should give a clear indication that when the American troops are withdrawn, the illegal use of Iraqi military bases will also come to an end.

Let us hope that President Obama’s words match his actions; actions that will signify a change in the direction of American imperial policy. It was encouraging to see that when he turned to the Iraqi people and said: ‘The United States pursues no claim on your territory or your resources. We respect your sovereignty and the tremendous sacrifices you have made for your country. We seek a full transition to Iraqi responsibility for the security of your country.’

The American rulers have inflicted immeasurable death and destruction on the Iraqi people and the infrastructure of their country. They have caused untold humanitarian disaster and suffering in Iraq. The people of Iraq have seen only death, destruction and barbarity at the hands of the occupiers since the U.S. invasion of their country. The Belgian philosopher, Lieven De Cauter, the initiator of the BRussells Tribunal, writes: ‘During six years of occupation, 1.2 million citizens were killed, 2,000 doctors killed, and 5,500 academics and intellectuals assassinated or imprisoned. There are 4.7 million refugees: 207 million inside the country and two million have fled to neighbouring countries, among which are 20,000 doctors. According to the Red Cross, Iraq is a country of widows and orphans: two million widows as a consequence of war, embargo, and war again and occupation, and five million orphans, many of whom are homeless (estimated at 500,000).’

For us the ordinary human beings, such a degree of inhumanity shown by the rulers of the United States towards the people of a great country and callous imperviousness to the suffering of so many people is hard to understand. In addition, Iraq, the cradle of human civilisation eventually fell in the hands of the American occupiers and they vandalized the ancient treasures and artifacts, which were the common heritage of all humanity.

In sum, the peace movement should demand the complete withdrawal of all U.S. troops, the withdrawal of all mercenaries and military contractors hired by the Pentagon. All American military bases in Iraq should be closed and the full sovereignty of Iraq over its land and air be respected. All lucrative oil contracts the occupiers made with the puppet regime in Baghdad should be held null and void. Above all, the United States should be held accountable to pay reparations for the damage it caused and pay compensation to the victims of aggression. We should demand that the International Criminal Court takes steps to indict the alleged war criminals. The governments of the United States and Britain have a special responsibility to hand over the principal war criminals to The Hague and to facilitate the task of such trials.

War Crimes and Double Standards

March 8, 2009

Robert Parry |, March 5, 2009

New York Times columnist Nicholas D. Kristof – like many of his American colleagues – is applauding the International Criminal Court’s arrest order against Sudanese President Omar Hassan al-Bashir for his role in the Darfur conflict that has claimed tens of thousands of lives.

In his Thursday column, Kristof describes the plight of an eight-year-old boy named Bakit who blew off his hands picking up a grenade that Kristof suspects was left behind by Bashir’s forces operating on the Chad side of the border with Sudan.

“Bakit became, inadvertently, one more casualty of the havoc and brutality that President Bashir has unleashed in Sudan and surrounding countries,” Kristof wrote. “So let’s applaud the I.C.C.’s arrest warrant, on behalf of children like Bakit who can’t.”

By all accounts, Kristof is a well-meaning journalist who travels to dangerous parts of the world, like Darfur, to report on human rights crimes. However, he also could be a case study of what’s wrong with American journalism.

While Kristof writes movingly about atrocities that can be blamed on Third World despots like Bashir, he won’t hold U.S. officials to the same standards.

Most notably, Kristof doesn’t call for prosecuting former President George W. Bush for war crimes, despite hundreds of thousands of Iraqis who have died as a result of Bush’s illegal invasion of their country. Many Iraqi children also don’t have hands – or legs or homes or parents.

But no one in a position of power in American journalism is demanding that former President Bush join President Bashir in the dock at The Hague.

Tortured Commission

As for the unpleasant reality that Bush and his top aides authorized torture of “war on terror” detainees, Kristof suggests only a Republican-dominated commission, including people with close ties to the Bush Family and to Bush’s first national security adviser Condoleezza Rice.

“It could be co-chaired by Brent Scowcroft and John McCain, with its conclusions written by Philip Zelikow, a former aide to Condoleezza Rice who wrote the best-selling report of the 9/11 commission,” Kristof wrote in a Jan. 29 column entitled “Putting Torture Behind Us.”

“If the three most prominent members were all Republicans, no one on the Right could denounce it as a witch hunt — and its criticisms would have far more credibility,” Kristof wrote.

“Democrats might begrudge the heavy Republican presence on such a commission, but surely any panel is better than where we’re headed: which is no investigation at all. …

“My bet, based on my conversations with military and intelligence experts, is that such a commission would issue a stinging repudiation of torture that no one could lightly dismiss.”

In an earlier formulation of this plan, Kristof suggested that the truth commission be run, in part, by Bush’s first Secretary of State Colin Powell.

One of the obvious problems with Kristof’s timid proposal is that Rice and Powell were among the senior Bush officials who allegedly sat in on meetings of the Principals Committee that choreographed the abuse and torture of specific detainees.

Zelikow remained a close associate of Rice even after she replaced Powell as Secretary of State. And Scowcroft was President George H.W. Bush’s national security adviser and one of Rice’s key mentors.

It’s also not true that any investigation is always better than no investigation. I have witnessed cover-up investigations that not only failed to get anywhere near the truth but tried to discredit and destroy whistleblowers who came forward with important evidence. [For examples, see Secrecy & Privilege.]

In other words, bogus and self-interested investigations can advance bogus and self-interested history, which only emboldens corrupt officials to commit similar crimes again.

No Other Context

Kristof’s vision of having President Bush’s friends, allies and even co-conspirators handle the investigation of Bush’s crimes would be considered laughable if placed in any other context.

But Kristof’s cockeyed scheme passes almost as conventional wisdom in today’s Washington.

On Wednesday, the Washington Post assigned its satirical writer, Dana Milbank, to cover – and mock – Sen. Patrick Leahy’s Judiciary Committee hearing on his own plan for a truth commission to examine Bush-era abuses.

Milbank’s clever article opened with the knee-slapping observation: “Let’s be truthful about it. Things aren’t looking so good for the Truth Commission.”

The derisive tone of the article also came as no surprise. Milbank has made a cottage industry out of ridiculing anyone who dares think that President Bush should be held accountable for his crimes.

In 2005, when the Democrats were in the minority and the Republicans gave Rep. John Conyers only a Capitol Hill basement room for a hearing on the Downing Street Memo’s disclosures about “fixed” intelligence to justify the Iraq War, Milbank’s column dripped with sarcasm.

“In the Capitol basement yesterday, long-suffering House Democrats took a trip to the land of make-believe,” Milbank wrote. “They pretended a small conference room was the Judiciary Committee hearing room, draping white linens over folding tables to make them look like witness tables and bringing in cardboard name tags and extra flags to make the whole thing look official.”

And the insults – especially aimed at Conyers – kept on coming. The Michigan Democrat “banged a large wooden gavel and got the other lawmakers to call him ‘Mr. Chairman,’” Milbank wrote snidely. [For details, see’s “Mocking the Downing Street Memo.”]

Then, last July, Milbank ridiculed a regular House Judiciary Committee hearing on Bush’s abuses of presidential power. The column ignored the strong case for believing that Bush had violated a number of international and domestic laws, the U.S. Constitution, and honorable American traditions, like George Washington’s prohibition against torture.

Instead, it was time to laugh at the peaceniks. Milbank opened by agreeing with a put-down from Rep. Lamar Smith, R-Texas, calling the session “an anger management class.” Milbank wrote: “House Democrats had called the session … to allow the left wing to vent its collective spleen.”

Milbank then insulted Rep. Dennis Kucinich, who had introduced impeachment resolutions against Bush, by calling the Ohio Democrat “diminutive” and noting that Kucinich’s wife is “much taller” than he is.

What Kucinich’s height had to do with an issue as serious as abuses of presidential power was never made clear. What Milbank did make clear, through his derisive tone and repeated insults, was that the Washington Establishment takes none of Bush’s crimes seriously.

So, Milbank’s mocking of Leahy’s latest initiative fits with this pattern of the past eight years – protecting Bush from the “nut cases” who think international law and war-crimes tribunals should apply to leaders of big countries as well as small ones.

The pattern of “American exceptionalism” also can be seen in Kristof cheering the application of international law against an African tyrant but suggesting that Bush’s offenses should be handled discreetly by his friends.

Journalist Murray Waas often used the saying, “all power is proximate.” I never quite understood what he meant, but my best guess was that Waas was saying that careerists – whether journalists or from other professions – might have the guts to take on someone far away or who lacked power, while ignoring or excusing similar actions by someone close by with the power to hurt them.

That seems to be especially true about Washington and its current cast of “respected” journalists. They can be very tough on President Bashir but only make excuses for President Bush.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. Or go to

George Bush could be next on the war crimes list

March 6, 2009,Thursday, March 5, 2009

THE HAGUE – George W. Bush could one day be the International Criminal Court’s next target.

David Crane, an international law professor at Syracuse University, said the principle of law used to issue an arrest warrant for Omar al-Bashir could extend to former US President Bush over claims officials from his Administration may have engaged in torture by using coercive interrogation techniques on terror suspects.

Crane is a former prosecutor of the Sierra Leone tribunal that indicted Liberian President Charles Taylor and put him on trial in The Hague.

Richard Dicker, director of the International Justice Programme at Human Rights Watch, said the al-Bashir ruling was likely to fuel discussion about investigations of possible crimes by Bush Administration officials.

Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention that Bush and other officials rejected.

The prospect of the court ever trying Bush is considered extremely remote, however.

The US Government does not recognise the court and the only other way Bush could be investigated is if the Security Council were to order it, something unlikely to happen with Washington a veto-wielding permanent member.

– AP

SUDAN: Rights Groups Applaud Bashir War Crimes Warrant

March 5, 2009

By Nigar Hacizade | Inter Press Service

UNITED NATIONS, Mar 4 (IPS) – Sudanese President Omar Al-Bashir, the first head of state to be indicted by the Hague-based International Criminal Court, now faces an arrest warrant issued Wednesday by the ICC’s Pre-Trial Chamber on charges of crimes against humanity and war crimes in Darfur.

The decision was hailed by human rights organisations that had long anticipated the court’s move. Richard Dicker, director of the International Justice Programme at Human Rights Watch, called the decision “a momentous occasion first and foremost for the people of Darfur, but also for ICC and the cause of justice and ending impunity for the most serious crimes in law.”

Right after the decision was announced, thousands of pro-government protestors took to the streets of Khartoum, to hear President Bashir reaffirm his defiance in the face of the charges. Bashir has repeatedly said that his country does not recognise the ICC and the decision is “not worth the ink it is printed on.”

Sudan’s ambassador to the U.N., Abdalmahmood Abdalhaleem Mohamad, said in a press briefing following the decision, “Today is a day of national outrage, of national anger. We strongly condemn this verdict; the ICC does not exist for us. We are not bounded by its decision and we are not going to cooperate with it.”

He reiterated Khartoum’s position that the court is a tool of Western aspirations of hegemony and imperialism.

The decision came amid substantial opposition not only from the Sudanese government, but also the African Union and the League of Arab States, as well as China, a close ally of Sudan and a permanent member of the Security Council. Critics have argued that the decision might damage the fragile peace process in the region and lead to an escalation of violence.

But human rights organisations respond that giving up justice for peace is not a credible or sustainable move.

“There is no real peace process to speak of,” Dicker told IPS on Monday. “Neither side is showing will to end the conflict.”

Regarding the escalation of violence, Dicker said “given the track record of the Sudanese government in crimes on its people in the last six years, I wouldn’t rule anything out in terms of retaliation.”

Analysts have suggested that inflicting more violence will isolate Bashir and his government further, eventually leading to his fall from power and arrest, much like Slobodan Milosevic.

Concerns exist regarding the U.N. personnel on the ground in Darfur. Alan Le Roy, the under-secretary-general of U.N. Peacekeeping Forces, said in a press briefing on Tuesday that while there is a contingency plan for the hybrid U.N.-African Union force known as UNAMID, there are no plans to either move or scale down the mission and UNAMID will continue its normal operations as scheduled.

Le Roy noted that “we are deeply concerned with the tensions on the Sudan-Chad border,” but “we have to fulfill our mandate, which is to protect 14,000 IDPs (internally displaced persons) near our camp.”

The spokesperson for U.N. Secretary-General Ban Ki-moon confirmed Wednesday that the mission has been rigorously patrolling the area as normal and is so far unaffected by the ICC’s announcement.

The U.N. Security Council, through Resolution 1953, referred the case of Darfur to the ICC in March 2005. While Sudan is not a party to the Rome Statute, the legal mandate of the ICC, Article 13 of the Statute allows the Security Council to refer cases to the court.

Luis Moreno Ocampo, the ICC’s prosecutor, opened the case in June 2005, and requested an arrest warrant for President Bashir in July 2008. Arrest warrants have also been issued for Ahmad Mohammad Harun, minister of state for humanitarian affairs of Sudan, and Ali Muhammad Ali Abd-Al-Rahman, alleged leader of the Janjaweed militia accused of carrying out atrocities in Darfur.

Last November, Ocampo requested arrest warrants for attackers on the UNAMID forces.

A press release issued by the court following the decision said that “according to the Judges, the crimes were allegedly committed during a five year counter-insurgency campaign by the Government of Sudan against the Sudanese Liberation Movement/Army (SLM/A), the Justice and Equality Movement (JEM) and other armed groups opposing the Government of Sudan in Darfur.”

The conflict has resulted in 300,000 dead and 2.7 million displaced, according to U.N. estimates. The Sudanese government maintains that the conflict has been exaggerated and the numbers inflated.

The ICC is a permanent independent judicial body created by the international community in 1998 with the aim of persecuting the gravest crimes such as genocide, crimes against humanity and war crimes.

While the indictment and warrant was widely anticipated by various human rights groups, Bashir was not charged with genocide due to lack of “reasonable grounds.”

There are allegations that the court has been pursing “white justice” and is only interested in persecuting Africans. Asked about the perceived double standards of justice, Niemat Ahmadi, a longtime women’s rights activist and the Darfuri liaison officer with the Save Darfur Coalition, noted that “African leaders have failed in their own responsibility to African people” and that there would be no need for an international court if Sudan had the adequate legal mechanisms.

The other three cases currently before the court are of the Democratic Republic of Congo, Central African Republic and Uganda. All cases have been referred to the court by the respective countries, and those indicted so far have been fallen warlords or government opponents.

The wars in Iraq and Afghanistan, as well as the situation in Palestine aggravated by Israel’s assault on Gaza in late December and January, have led many, including the Sudanese government, journalists and ordinary Sudanese people to question whether the court is capable of indicting Western leaders.

In response to these allegations, Dicker explained that the court is very new and operates on an uneven playing field. While he acknowledged that “American or European leaders are less likely to be charged in this court,” but added that “it is counterproductive to say there can be no justice because we cannot have justice for all.”

The United States, despite its unwillingness to join the ICC and previous efforts to undermine the court, has been instrumental in referring the case of Darfur to the court through the Security Council.

During the George W. Bush administration, an independent investigation concluded that genocide was taking place in Darfur. Britain and France have also supported the indictment.

The Libyan ambassador to the U.N., who is chairing the Security Council for March, said on Tuesday that he is carrying out bilateral consultations with the other Security Council countries to defer the case based on Article 16 of the Rome Statute.

Israel may face war crimes trials over Gaza

March 2, 2009

International pressure grows over conflict

Court looks at whether Palestinians can bring case

An injured Palestinian boy

A Palestinian man carries an injured boy into Shifa hospital in Gaza City during an Israeli attack on Gaza in January. Photograph: Khalil Hamra/AP

The international criminal court is considering whether the Palestinian Authority is “enough like a state” for it to bring a case alleging that Israeli troops committed war crimes in the recent assault on Gaza.

The deliberations would potentially open the way to putting Israeli military commanders in the dock at The Hague over the campaign, which claimed more than 1,300 lives, and set an important precedent for the court over what cases it can hear.

As part of the process the court’s head of jurisdictions, part of the office of the prosecutor, is examining every international agreement signed by the PA to decide whether it behaves – and is regarded by others – as operating like a state.

Following talks with the Arab League’s head, Amr Moussa, and senior PA officials, moves have accelerated inside the court to deliver a ruling on whether it may be able to insist on jurisdiction over alleged war crimes perpetrated in Gaza, with a decision from the prosecutor’s office expected within “months, not years”.

The issue arises because although the ICC potentially has “global jurisdiction” to investigate crimes which fall into its remit no matter where they were committed, Israel – despite having signed the Rome statute that founded the court and having expressed “deep sympathy” with the court’s goals – is not a party.

The ICC, which has 108 member states, has not so far recognised Palestine as a sovereign state or as a member.

The latest moves in The Hague come amid mounting international pressure on Israel and a growing recognition in Israeli government circles that it may eventually have to defend itself against war crimes allegations. The Guardian has also learned that a confidential inquiry by the International Committee of the Red Cross into the actions of Israel and Hamas during the recent conflict in Gaza is expected to accuse Israel of using “excessive force” – prohibited under the fourth Geneva convention.

The Red Cross has been collecting information for two parallel inquiries, one into the conduct of Israel and a second into Hamas, both of which will be presented in private to the parties involved.

In the case of Israel, the Red Cross is expected to highlight three areas of concern: the Israeli Defence Forces’ “use and choice of weapons in a complex and densely populated environment”; the issue of “proportionality”; and concerns over the IDF’s lack of distinction between combatants and non-combatants during Operation Cast Lead. Hamas is likely to be challenged over its use of civilian facilities as cover for its fighters; its summary executions and kneecappings of Palestinians during the campaign; and its indiscriminate firing of rockets into civilian areas.

Meanwhile, sources at the ICC say it is considering two potential tracks that would permit it to investigate what happened in Gaza. As well as determining whether the PA is recognised internationally as a sufficiently state-like entity, the head of jurisdictions in the office of the international criminal court’s prosecutor, Luis Moreno-Ocampo, is looking at whether the court can consider war crimes allegations on the basis of the dual nationality of either victims or alleged perpetrators whose second passport is with a country party to the court.

The court’s deliberations follow more than 220 complaints about Israel’s actions in Gaza. “It does not matter necessarily whether the Palestinian National Authority is in charge of its own borders,” said a source at the court. “Right now the court is looking at everything from agreements it has signed on education to the constitution of its legal system.”

Yesterday, Ehud Olmert, Israel’s prime minister, warned Palestinian militants their continuing rocket attacks on Israel would not go unpunished. He said further strikes would “be answered with a painful, harsh, strong and uncompromising response from the security forces”. More than 100 rockets and mortars have exploded in Israel in the six weeks since it ended its air and ground assault on Gaza, to which the government has responded with airstrikes.

Olmert’s warning came as Israel’s attorney general notified the prime minister that he was considering indicting him on charges of allegedly taking cash-stuffed envelopes from a Jewish-American businessman. Five corruption cases are pending against Olmert, although he has denied all wrongdoing. His spokesman said yesterday the charges against the prime minister would “disappear in the end”.

International Criminal Court Faces Big Test With Israel

February 15, 2009
By Amitabh Pal | The Progressive,  February 12, 2009

The International Criminal Court soon faces a big test—a test that could reveal whether it is truly an independent institution.

The Palestinian Authority has asked the court’s chief prosecutor, Luis Moreno-Ocampo, to examine if Israel was guilty of war crimes during its recent Gaza operation. Moreno-Ocampo should take a look into the allegations, not the least to refute the assertion that the court is an instrument of the West.

I have been a big supporter of the court and have written in its favor for a decade now, ever since it was being formed. But an article a few months ago in The Nation by Professor Mahmood Mamdani of Columbia University gave me pause. Mamdani insists that the International Criminal Court can be seen as the legacy of a tradition of Western paternalism toward the rest of the world, in some sense displaying a continuity with colonialism. While Mamdani overreaches in his argument and downplays the Bush Administration’s opposition to the court (for more on that see my January 2007 piece in The Progressive), he does make some interesting points.

“The fact of mutual accommodation between the world’s only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic and Congo,” Mamdani writes. “All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.”

Mamdani limits his analysis to Africa, not delving into the obvious issue as to whether the International Criminal Court should have considered a case against the Bush Administration for its illegal invasion of Iraq. (In fact, Roger Cohen points out in a New York Times column that Moreno-Ocampo rejected pleas to try British forces in Iraq.)

Mamdani exposes a basic structural flaw with the International Criminal Court: The U.N. Security Council can refer cases to the court (even regarding a non-signatory) or, conversely, block any such attempts. This gives an inordinate amount of clout to the five permanent members, including the three Western powers. This explains to a large extent the hesitance of the court’s chief prosecutor to take on the West or its allies.

In the case of Israel, Moreno-Ocampo faces a number of legal and procedural hurdles. Israel is not a signatory to the court. And the very legitimacy of the Palestinian Authority is in question, especially after Hamas’s takeover of Gaza. Nevertheless, Moreno-Ocampo has indicated—after initially declining the case—that he is considering whether to go ahead, possibly including a review of any war crimes that Hamas may have committed.

The Obama Administration has already signaled its approval of the International Criminal Court. U.S. Ambassador to the U.N. Susan Rice two weeks ago called the court “an important and credible instrument,” indicating that the United States is moving from confrontation toward co-optation.

Now is the time for the International Criminal Court to assert its independence. Opening a case against Israel would be a good start.

Palestinians Press for War Crimes Inquiry on Gaza

February 11, 2009
Published: February 10, 2009

THE HAGUE — The Palestinian Authority is pressing the International Criminal Court in The Hague to investigate accusations of war crimes committed by Israeli commanders during the recent war in Gaza.

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Tyler Hicks/The New York Times

A mosque in El Atatra, Gaza, that was destroyed by the Israeli military. Israel said the mosque had been used by militants.

The Palestinian minister of justice, Ali Kashan, first raised the issue during a visit to the court’s chief prosecutor late last month, and he and other officials are due back again in The Hague this week, court officials said.

Luis Moreno-Ocampo, the prosecutor, had initially said he lacked the legal basis to examine the case. But since the Palestinian Authority signed a commitment on Jan. 22 recognizing the court’s authority, the prosecutor has appeared more open to studying the Palestinian claim.

“The prosecutor has agreed to explore if he could have jurisdiction in the case,” said Béatrice Le Fraper, the director of jurisdiction for the prosecution. She cautioned that accepting jurisdiction would not automatically set off a criminal investigation. “We are still very far from any decision; this is just the beginning of a long process,” she said.

The prosecutor has received more than 200 requests to look into allegations of war crimes during the recent fighting between Israel and Hamas militants. They include accusations from individuals and organizations that Israel violated the rules of war by singling out civilians and nonmilitary buildings, and by using weapons like white phosphorus illegally.

“Quite a few groups have sent experts to the region, people doing forensic work, studying explosives and other weapons,” she said. “The prosecutor can look at all open sources at this stage.”

Should a criminal investigation begin, the prosecution would send its own investigators, who would look into possible violations by both sides. Hamas’s practice of sending rockets into southern Israel, which often landed in civilian areas, might be viewed as a violation. Israeli officials justified their offensive by saying they were trying to stop the rocket attacks.

But even as envisioned by the Palestinian Authority, the case faces numerous hurdles, specialists say.

The court here is the world’s first permanent international criminal court, created to examine war crimes, crimes against humanity and genocide. It can prosecute any citizen from the 108 countries that are currently members of the court. Individuals, governments, the United Nations Security Council or the prosecutor can initiate cases.

Israel is not a member of the court, and the Palestinian territories, not being recognized as a sovereign nation, appear not to fulfill the requirements. But as a remedy, the Palestinian Authority has taken a first step by presenting a declaration to the court, formally accepting jurisdiction for “an indeterminate duration” over acts “committed on the territory of Palestine” since July 1, 2002, when the court’s authority began.

Lawyers say such a declaration allows for joining the court on an ad hoc basis, and has been allowed before, in the case of Sierra Leone, which is not a member. But while the Palestinian declaration has been recorded at the court, its validity is far from settled. The big question, lawyers at the court say, is whether the Palestinian Authority can grant jurisdiction in any form, and if so, how that will be defined.

The issue has raised the question of whether Palestinian officials hope to obtain an implicit recognition of statehood through the court.

The court “will not use the term statehood,” said a legal expert close to the case who spoke on condition of anonymity because the issue was still being decided. “The court will avoid defining whether Palestine is a state. The decision will be only if Palestine can be admitted for the purposes of the court statute.”

The Palestinian officials visiting The Hague in the coming days are expected to try to demonstrate that they have been allowed to sign other international treaties and conventions, and can therefore be accepted as a party to the 1998 Rome treaty that founded the court.

Ms. Le Fraper, the director of jurisdiction, said her office would call on international experts to help settle such questions.

Another unknown is whether the Palestinian Authority can bring a case involving jurisdiction in Gaza. The authority is run by Fatah, but its rival faction, Hamas, has declared itself the only authority in Gaza and ousted Fatah from the territory.

More than 1,300 Palestinians died in the recent war in Gaza, many of them women and children. Israeli officials have insisted that Israel respected international law during the fighting. Israel has also said that it will investigate its attacks on United Nations schools and headquarters and the use of unlawful weapons in urban areas, including the use of white phosphorus.

Human rights groups and a number of United Nations officials have called for an independent international inquiry into actions by both sides. Human Rights Watch said such an independent effort was essential because of “Israel’s poor record of investigating and prosecuting serious violations by its forces, and the absence of any such effort by Hamas or other Palestinian groups.”

Western politicians and other critics of Israel’s recent conduct in Gaza have also said that Hamas has violated the rules of war and committed war crimes with indiscriminate rocket attacks on Israeli civilians and the use of its own civilians as human shields.

Depending on what happens at the court, Hamas’s rocket attacks and other acts viewed by some as crimes could also become part of any criminal investigation. By accepting the jurisdiction of the International Criminal Court on its territory, the Palestinian Authority has also accepted jurisdiction over any war crimes by its own residents.

“That’s the way jurisdiction works,” said a court lawyer. “The Palestinians know that and have taken that risk.”

Editorials: Gaza: Welcome initiative by ICC

February 3, 2009

Arab News, Feb 3, 2009

The International Criminal Court (ICC) in The Hague is wisely reconsidering its decision last month that it was unable to mount a war crimes prosecution over Israeli savagery in Gaza because it did not have jurisdiction. Israel along with the United States (as well as China, Russia and India) does not recognize the ICC. Therefore it was initially argued that procedurally a case could not be brought against named Israeli soldiers and politicians. Yesterday the ICC chief prosecutor Luis Moreno-Ocampo revealed that he was investigating the possibility that because the “alleged” war crimes were committed on Palestinian territory and the Palestinian Authority had requested a prosecution, it was after all possible to bring a case. The UN is separately investigating the shelling of its Gaza schools. This change of heart may have come about because of a belated recognition of international outrage at the shelling of the Gaza ghetto, causing thousands of deaths and injuries among a totally trapped civilian population. There is also clear evidence that the Israelis used phosphorus munitions in dense built-up areas, which is an offense under the Geneva Conventions.

The ICC is still a fledgling international court. If it embarks on a prosecution of Israeli war criminals, it can expect to be heading on a collision course, almost certainly with Washington and very probably with a number of European capitals, whose governments busily condemned the barbarous onslaught but, as with the 2007 Israeli invasion of southern Lebanon, did precious little to try and stop it.

The reason why the ICC must bring a case against Israel is that it is time the court was seen to be prepared to prosecute any one from any country, without fear or favor. So far the ICC has acted over allegations involving developing countries such as Chad and Senegal, Sierra Leone and Rwanda. It has not challenged a modern state like Israel. Most certainly it should. It cannot afford to have the watching world believe that there is one law for poor, unsophisticated countries and another for advanced states enjoying US backing and protection. A war crime is just as heinous when committed by a modern, well-equipped and allegedly disciplined army as it is by fanatics with machetes in the African jungle. Israel’s wrongdoing is compounded in that the butchery of helpless Palestinians was clearly an obnoxious political ploy to try and save the Kadima-led Israeli coalition from defeat at the next week’s general election.

If the ICC does accept the Palestinian complaint and the Israelis refuse to cooperate, as has the Sudanese government over war crimes allegations in Darfur, it does not mean that the case falls. With Sudan the matter was referred to the UN Security Council, who though stopping short of accusing Sudan of genocide, as Washington had wished, condemned the government of President Omar Bashir. To the African Union’s concern, the ICC is now considering if the first international arrest warrant should be issued for a sitting head of state. The court should be no less robust in its early investigation of Israel’s abhorrent behavior in Gaza. War crimes do not cease to be war crimes just because they were committed by the victims of the Holocaust or their descendants.

Bad news from neighborhood

THE news that Israel has invested close to NIS 200 million in Mevasseret Adumim, a new Jewish neighborhood east of Jerusalem where 3,500 housing units are slated to be built, reveals the real intentions of the outgoing government, said the Israeli newspaper Haaretz.

Prosecutor looks at ways to put Israeli officers on trial for Gaza ‘war crimes’

February 2, 2009
February 2, 2009

The International Criminal Court is exploring ways to prosecute Israeli commanders over alleged war crimes in Gaza.

The alleged crimes include the use of deadly white phosphorus in densely populated civilian areas, as revealed in an investigation by The Times last month. Israel initially denied using the controversial weapon, which causes horrific burns, but was forced later, in the face of mounting evidence, to admit to having deployed it.

When Palestinian groups petitioned the ICC this month, its prosecutor said that it was unable to take the case because it had no jurisdiction over Israel, a nonsignatory to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor, has told The Times that he is examining the case for Palestinian jurisdiction over alleged crimes committed in Gaza.

Palestinian groups have submitted arguments asserting that the Palestinian Authority is the de facto state in the territory where the crimes were allegedly committed.

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“It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” Mr Moreno-Ocampo told The Times at the World Economic Forum in Davos.

Part of the Palestinian argument rests on the Israeli insistence that it has no responsibility for Gaza under international law since it withdrew from the territory in 2006. “They are quoting jurisprudence,” Mr Moreno-Ocampo said. “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”

Mr Moreno-Ocampo said that his examination of the case did not necessarily reflect a belief that war crimes had been committed in Gaza. Determining jurisdiction was a first step, he said, and only after it had been decided could he launch an investigation.

The prosecutor’s office has already received several files on alleged crimes from Palestinian groups and is awaiting further reports from the Arab League and Amnesty International containing evidence gathered in Gaza.

Under the Rome treaty that founded it, the ICC can investigate and prosecute allegations of the most serious war crimes only if the country responsible is unwilling or unable to do so through its national courts.

States that are party to the treaty can refer cases of crimes committed by their citizens or on their territory. Cases involving the citizens or territory of a country that has not signed up to the court can be referred by the United Nations Security Council – as in the case of Darfur. Ivory Coast set a precedent as the first nonstate party to accept the ICC’s jurisdiction over alleged war crimes on its territory. It signed the Rome treaty but never ratified it. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002.

Palestinian lawyers argue that the Palestinian Authority should be allowed to refer the cases in Gaza on this same ad hoc basis – despite its lack of internationally recognised statehood.

The case has wide-reaching ramifications for the Palestinian case for statehood. If the court rejects the case, it will highlight the legal black hole that Palestinians find themselves in while they remain stateless. However, it also underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.

One avenue would be for Israel to agree to investigate its commanders and prosecute any crimes discovered. That would remove any case from the orbit of the international court. So far that appears unlikely, given Israel’s repeated denials of war crimes in Gaza.

The Israeli army has, however, launched an internal inquiry into whether white phosphorus was used in some cases in built-up areas, having eventually admitted that it did use the incendiary substance, which is not illegal as a battlefield smokescreen but is banned from being used in civilian areas. Camera footage from one such attack shows what appears to be white phosphorous raining down on a UN school in Beit Lahiya, where Red Crescent ambulances and their crews were stationed.

A coalition of Israeli human rights groups has urged the country’s attorney-general to open an independent investigation into allegations of war crimes by troops, urging that to do so could head off international court cases. The groups, including the antisettlement organisation B’Tselem, said that there had been reports of Israeli forces firing into civilian areas, denying medical aid to the wounded and preventing Palestinian ambulances from reaching them, and of firing at people carrying white flags.

Meanwhile, the UN is preparing an inquiry into the bombardment of a UN school in Jabaliya, in the northern Gaza Strip. Israeli forces fired artillery shells outside the school, which had been converted into a refugee shelter for Gazans fleeing their homes. At least 43 people were killed. Israel said that Palestinian militants had fired from the compound, which was denied by the UN.

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