Monday, November 22, 2004

A law unto self

November 21 2004

A law unto itself

pv vivekanand
THE video image of an American soldier shooting dead an unarmed Iraqi in a Fallujah mosque speaks volumes for the arbitrary manner in which the US military is conducting the war in Iraq with absolute insulation against international prosecution on charges of crimes against humanity and war crimes.

The insulation is in the form of protection for every American against being tried by the International Criminal Court (ICC), which is empowered to try cases of genocide, war crimes and crimes against humanity.

Had the international law enshrined in the ICC's statute been applicable to the US, then it is a safe bet that thousands of American soldiers would have been sent by now for ICC trial for their crimes in the wars in Afghanistan and Iraq.

Unlike the International Court of Justice, which could try sovereign states, the ICC has the authority to charge individuals.

From day one more than a decade ago of discussions on creating such a court, Washington sought to exempt Americans from being governed by the proposed court.

It took many years of the world being unable to do anything except to voice condemnation and indignation over crimes against humanity perpetrated by autocratic governments, armies and mercenaries before the international community could agree, in July 1998, to set up the ICC under the so-called Rome Statute.

The court is complementary to national jurisdictions, and will act only when governments are unable or unwilling to genuinely carry out investigations or prosecutions of genocide, war crimes and crimes against humanity.

The US refused to sign on to the ICC and launched an international effort to make sure that no country would send an American national to the ICC for trial. It has signed bilateral agreements with more than 80 countries to this effect (One of the first things that the US did after installing a provisional governing council in post-Saddam Hussein Iraq last year was to get the council sign the agreement. Obviously, Washington knew that charges of war crimes and crimes against humanity would be levelled against its military personnel in Iraq and that it was possible at some point in the future they would be asked to account for their action at an international forum).

Carrot and stick policy

The US used a carrot and stick policy to entice countries to sign agreements against extraditing Americans for trial by the ICC. On the one hand, it threatened to cut off aid to countries if they did not sign the agreement and on the other it offered assistance or additional aid to those which signed the accord.

War crimes and crimes against humanity include systematic attacks on civilians; most uses of chemical, biological or nuclear weapons; and violations of Geneva Conventions on the conduct of war, such as torturing prisoners.

The ICC can only try cases that involve acts that occurred from July 1, 2002, and those found guilty could be sentenced to up to 30 years in prison to life in jail.

It was always known why the US had adopted and continues to adopt a position against Americans being tried by the ICC and insists on conducting trials involving Americans charged with crimes against humanity and war crimes in American courts: The US maintains military presence over 135 countries and, therefore it does not want to its soldiers to be pulled up and tried under international law regardless of whatever circumstances under which they were accused of committing war crimes.

The underlying motivation is also clear: Exposing Americans to international law on war crimes and crimes against humanity would seriously impede the American quest for global domination through the use of military power.

Over 135 countries have signed the ICC statute, and over 100 governments have already ratified it.

Notable among the countries which have not signed the statute of the ICC and are subject to its provisions are China, India and, sure enough, Israel.

These countries have their own concerns just as the US has its.

Israel, which routinely employs its soldiers in military actions against the Palestinians living under its occupation in the West Bank and Gaza, would be hit hard if it were to sign the ICC convention since its soldiers could be exposed to trials by the court.

The Indian refusal to accept the ICC statute stems from New Delhi's fear that its military personnel could be targeted by the ICC for their activities in Kashmir.

China has concerns that its use of its army and military personnel against dissenters could expose its people for trial at the ICC.

Publicly, the US argues that its demand for immunity against ICC prosecution for its soldiers is a safeguard against politically motivated prosecutions.

"A politicised or a loose cannon prosecutor in a court like that can impose enormous difficulties and disadvantages on people," according to US Defence Secretary Donald H. Rumsfeld.

Rumsfeld points out the US has forces in countries all over the globe. "We have no intention of pulling back," said Rumsfeld, adding that it is Washington's prerogative to arrange for "immunities that will protect our forces before we go in" even for peacekeeping operations.

However, European countries like Britain and France which have signed the ICC statute affirm that the court has safeguards to prevent politicised prosecutions, but the US rejects the affirmation.

Judge Richard J Goldstone, who served as the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda from 1994-96, points out that the Rome Statute "contains built-in checks and balances and the treaty has strong mechanisms to ensure that the ICC is used as the court of last resort."

American law says that American soldiers who commit crimes abroad should be handled by US military courts.

However, by and large, the sentences handed down by the US military justice system is nowhere near what the ICC could impose. An example is the one-year sentence handed down to Sergeant Ivan Fredrick, who faced a charge that carried an eight-year sentence after he was found guilty in the Abu Ghraib torture scandal.

Efforts at the UN

The US and the UK tried in vain this year to secure a UN Security Council exemption for UN peace-keepers from ICC jurisdiction.

The strongest opponent of the move was the London-based human rights group Amnesty International, which appealed to the UN Security Council that the joint American-British "proposals take away the jurisdiction of the International Criminal Court to decide these questions and as such violate the integrity of the Rome Statute and undermine the rule of law by in effect granting immunity to nationals of non-states parties to the Rome Statute responsible for the worst possible crimes," it said.

Amnesty International called all members of the Security Council to "reject this proposal or any proposal that would undermine the integrity of international justice."

Subsequently, the US withdrew the proposal when it became apparent that it would not win the nine votes needed for the resolution to pass. Several council members cited the allegations of torture at the Abu Ghraib prison in Iraq and the strong opposition of UN Secretary-General Kofi Annan as the reasons behind their position.

It is quite clear that the US administration has been following a path that gives the US an exceptional exemption from international law. Some examples are: Washington's withdrawal from the Anti Ballistic Missile Treaty, the World Conference Against Racism, the Kyoto Protocol on global warming and rejection of the Geneva Convention rules governing the treatment of prisoners of war.

The Fallujah footage broadcast by embedded NBC reporter Kevin Sites could be immediately linked to the US stand on the Geneva Convention, which says that the wounded Iraqi should have been treated as a prisoner of war. The footage leaves no room for any justification whatsoever by the American soldier.

Sites himself said the Iraqi was severely injured, unarmed and did not pose any imminent threat.

Reports say that other Iraqis were found in Fallujah with single-bullet marks in their heads indicating a cold-blooded execution and suggesting that US soldiers are still committing war crimes in Iraq with immunity offered by their own government.

Amnesty International has documents several such incidents. It has expressed "deep concern" that "the rules of war protecting civilians and combatants have been violated in the current fighting between US and Iraqi forces and insurgents" in and around Fallujah.

Pierre Kraehenbuhl, director of the International Committee of the Red Cross, has affirmed that "as hostilities continue in Fallujah and elsewhere, every day seems to bring news of yet another act of utter contempt for the most basic tenet of humanity."

"Like any other armed conflict, this one is subject to limits, and they must be respected at all times," Kraehenbuhl said, adding that respect for international humanitarian law was "an obligation, not an option."

International human rights activists are calling for an in-depth investigation into the US military's behaviour in Iraq with a view to compiling a substantiated and documented record of American violations of international conventions governing the conduct of war and treatment of prisoners of war as well as people under occupation.

As Omar Barghouti, an independent political analyst based in Palestine, observes:

"Despite the fact that the US does not recognise the jurisdiction of the ICC, such an investigation may still present a crucial, indispensable forum that can exert moral and political pressure on the US and its occupation allies to better respect international law and the rules of war stipulated in it.....

"An American insistence on monopolising the use of arbitrary and overwhelming force with no consideration whatsoever to international law or the UN principles will be viewed by people around the globe as the ultimate proof that the US has actually become a pariah state, putting itself above, if not altogether outside, the law. This has the potential of triggering unprecedented lawlessness and terror across the globe with no universally accepted restraints to hold either in check."