EENR for Progress: The International Criminal Court and Human Survival

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Cross-posted from EENR Blog



The Kyoto Treaty is not the only treating affecting human survival that Bush prefers let languish without the participation of the United States.  He also unsigned us from the Rome Treaty that established the International Criminal Court.

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ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT


PREAMBLE

The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a

shared heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of

unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern to the international community as a whole

must not go unpunished and that their effective prosecution must be ensured by taking measures at

the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to

contribute to the prevention of such crimes,

. . .

http://www.icc-cpi.int/library…

The Court already is a reality.  But if we join, it can be more effective.



Architectural animation

The Need for the Court



John Prendergast

Given that the world’s population and the nature of global interactions means that festering violence has more far-reaching consequences than ever, and if humanity is going to survive, we have to establish a way to eliminate or at least contain the insanity of genocide, war crimes and crimes against humanity.  Our choices are stark: figure out a way for the world to live by a humane rule of law or face eventual annihilation.  

Conflicts become civil wars, which tumble into other countries and, before we know it, diverse nations have taken sides, hatred intensifies and hundereds of thousands and potentially millions die.  New generations learn to hate and hope is poisoned.

We need the International Criminal Court to work.  It is still in its infancy and needs the clout of the United States to fulfill its promise.  Also, by becoming active members of the ICC, we could regain some of our former moral authority by again championing human rights.

We were once known for our staunch defense of human rights.  We can be proud of our participation in the Nuremburg Tribunals and the tribunals set up for the former Yugoslavia and for Rwanda.  But the time has come for a permanent international court, not tribunals dependent on the vagaries of any current international politics.  We helped form the Rome Treaty that Bush backed out of.  There are currently 105 member states to the treaty.  The United States should make it 106.  http://www.icc-cpi.int/about.html

Checks and Balances

For the Court to have jurisdiction, the crimes must be committed by a citizen of a treaty member or within the territory of a treaty member.  Also, jurisdiction can be referred to the Court by the UN Security Council (in lieu of setting up a new ad hoc tribunal).  The only referral so far is for Sudan.

The crimes that the Court investigates and prosecutes are limited to widespread crimes that take place as part of a policy: genocide, crimes against humanity and war crimes.  In addition, the crimes are only pursued by the ICC if the country where the crimes take place have no court that is able or willing to prosecute the crimes.  Before an investigation can begin, it must be approved by a three judge panel.

The ICC has no army or police force to enforce its warrants for arrest.  It is dependent upon participating states to extradite to the Netherlands (where the Court is physically situated) anyone who has been indicted.  This particular check seems to me to be the greatest weakness of the Court.

This weakness undermines what could be its greatest asset, deterring bullies in the first place.  The kind of tyrants that instigate horrific crimes are basically bullies.  Bullies are also notorious for being cowards.  If they know they will be caught and face consequences, they are capable of restraining themselves.  An example of this is the garden variety abuser who will, even in a peak state of enragement, confine blows to parts of the victims body that won’t be easily visible.  The knowledge that an international institution is likely to come down on them will not prevent madmen (or madwomen) from acting destructively, but it can diminish the impact.

Surely we can design a small but exceptionally competent force made from many member nations and under tight rules for transparency and accountability.

Bush Rant

Which brings us back to Bush and his refusal to participate.  One of the reasons he gives for unsigning the US is that he is worried it will interfere with US sovereignty.  He likes unchecked power for peremptory invasions and a free reign in interrogations and imprisnoment.

Presidents enjoy incredible immunity for actions taken as executive or commander in chief.  About the only consequence for behaving badly is impeachment by the House and maybe a trial in the Senate.  And getting kicked out of the Oval Office.  He does not want to answer to some Court he can’t control.  He wants to be able to redefine torture and war crimes to whatever is convenient.

While I can understand that we don’t want our presidents to be afraid to make decisions because they might then be subject to politically motivated suits and prosecutions, I think the immunity was designed for mature individuals who have the country’s well being in mind.  It does not protect us when we have an arrogant imbecile as the decider.  Sorry, Bush induced rant is finished.  Really.

Sovereignty had its beginning in protecting kings.  We still believe it is more moral to invade a country, killing hundreds of thousands of innocent citizens, than it is to assassinate a mad ruler.  Thems the rules and we accept it.

Personally, I would rather we had done the unthinkable and assassinated Sadam Hussein outright than assassinate him under cover of war and kangaroo court.  But even better would have been to have him tried in a respectable court when he first started his genocidal campaigns against the Kurds.

More Information on the Court

There are many excellent videos on YouTube to help explain the complicated issues surrounding getting this Court going.  Just because it isn’t an issue discussed much in the US doesn’t mean it isn’t discussed at great length in other countries.  

A conference held in Vietnam in 2004 by the Vietnamese Professional Society provides lots of good arguments and information from Sean Butler and Michael Struett, who were trying to convince the Vietnamese to become signatories.   It can be found in four parts, the first of which is below:

The first part covers questions about how the Court can help alleviate manmade humanitarian crises and why the U.S. should support the Court.  Part 2 is on the future of the ICC given the limited enforcement mechanisms.  I found Part 3 to be the most interesting.  One question was whether human trafficking would be a crime the ICC would prosecute.  Then Butler and Struett take on the Bush rejection of the ICC treaty.  Their PowerPoint presentation for the conference can be downloaded.

YouGlobalSolutions has a series of 38 short videos, each addressing a separate question on the ICC.  



Judge Phillipe Kirsch

Most of us don’t hear much from our corporate media about the ICC, but news is out there detailing the critical formative years of the Court.  As you will see from the links in the  following overview, The New York Times has provided a steady stream of articles on the subject.  I’ve been furious with their coverage of our presidential elections at times, but they are a source for information on how the possibilities of the Court are panning out.

Congo

The first person to be tried by the ICC will be Congolese militia leader Thomas Lubanga.  

The Court will also try former general Germaine Katanga, who is imprisoned at the ICC for “large scale murder, rape and using boys as soldiers and girls as sex slaves for his militia group.”  

In February, the Congo “arrested army colonel and former militia leader Mathieu Ngudjolo and handed him over to the ICC.”  He will face charges of murder, sexual slavery and the forced conscription of children.  He is unique in that his arrest came while he was an active military member.

Darfur

After a twenty month investigation, the ICC issued arrest warrants nearly a year ago for two Sudanese men Ahmad Muhammad Harun and Ali Muhammad Ali Abd-al-Rahman, aka Ali Kushayb, who is allegedly a former leader of the janjaweed militia.  They were the first to be charged with atrocities in Darfur in 2003 and 2004, where more than 200,000 people have died and millions displaced.  

Harun continued to oversee Darfur’s refugee camps despite complaints from aid agencies and he appeared at human rights conference in Egypt.

In September of 2007, The Sudanese government placed Harun in charge of hearing human rights complaints from Darfur victims.

Even though the United States has been unsigned from the ICC, the American Bar Association helped in the training of Sudanese lawyers in preparation for the trials.  The training was largely funded by a grant from the MacArthur Foundation.  

Central African Republic

Known for “vast, lawless territory” this landlocked country is used as a staging ground for rebellions in other countries.  The ICC prosecutor is investigating human rights violations here in 2002 and 2003.  In particular, the ICC investigation will focus on the use of rape as a terror tool.  Rape incidents outnumber killings four to one: “mass rapes gang rapes, hundred of cases that took place within a few days.”  

The Supreme Court of the Central African Republic referred the rapes to the ICC because “it did not have the means to prosecute those responsible for the attacks on civilians.”  Those attacks apparently can be attributed to the government, led by Francois Bozize, president following the violent coup.

Prosecutor Moreno-Ocampo will not be focusing the rapists themselves.  He is after “the person or people issuing the orders or organizing the campaign.  The ICC seeks to prosecute the leaders most responsible for grave human rights violations when national courts are unwilling or unable to do so at home.”

Uganda

The ICC apparently has already gained some clout.  It may have played a part in the formation of an agreement between the government of Uganda and the Lord’s Resistance Army on how to deal with war crimes there: and agreement on “reconciliation and accountability”.  The agreement is part of a five phase plan to end the decades long violence there.  There are still delays and waiting for the LRA leaders to follow through on promises, but there is at least hope of a completed agreement.

Joseph Kony, leader of the LRA, is wanted by the ICC and was afraid to leave his jungle hideout until the ICC dropped the indictments.  The agreement set out a framework for Uganda to deal with the war crimes: “The agreement is about putting mechanisms in place under national law. We can take it to the I.C.C. and say, ‘Look: we are dealing with accountability’  [said Martin Ojul, leader of the LRA delegation in Sudan]”  

The ICC has indicted four of the rebel leaders.  

Liberia/Sierra Leone

The ICC is also the venue for tribunals over which it has no jurisdiction.  In a controversial move, the United States brought a UN sanctioned Sierra Leone trial from that country to the premises of the ICC.  The move took the tribunal out of a volatile atmosphere in Sierra Leone, but added to the cost and confusion of the trial.

Former Liberian president and warlord Charles G. Taylor is “the first African head of state to be brought to trial before an international court, faces 11 counts of crimes against humanity and war crimes, committed during the Sierra Leone civil war, which lasted from 1991 to 2002.”  The crimes he is accused of committing include conscripting children as soldiers with the use of drugs and indoctrination.  

The children “were taught to amputate limbs and gouge out eyes and were even ordered to kill their parents and to see the army as their new family.”  He is also accused of obtaining weapons by illegally selling timber and diamonds. Taylor is testing the authority of the tribunal with boycotts, procedural games and sham claims of indigency.  He was, nonetheless, sitting in a high security cell.  The cell is part of a new cellblock built in the Hague, Netherlands, for the ICC.

Not that the cell reflects the barbarity of Taylor’s crimes.  He has access to a computer, television (for which he demanded satellite service) and a DVD player.  There is a private space for conjugal visits with his wife.  He complained of the “Eurocentric food” and was provided with foods more suitable to his palate: “plantains, yams, corn flour, cassava, smoked fish and spices like ginger and peanut sauce.”  He has help preparing the foods from his cellmate, a fellow child enslaver from Congo, Thomas Lubanga.

Future Investigations

The Court may investigate charges against Hugo Chavez by Colombia.  Also, the violence and ethnic cleansing in Kenya is crying out for an investigation.

Reconciliation

Even if the Court succeeds in building a strong institution and is successful in its mission of bringing the worst criminals to justice, it will not be complete.  It needs another whole branch to deal with reconciliation.

An acknowledgement of this is seen in the Uganda approach, which expects “traditional reconciliation rituals” to go forward for crimes not specifically handled by the few ICC prosecutions.

The current goal of the Court focuses on the leaders responsible for widespread crimes, and that is the necessary first step.  However, given the nature of these crimes, this leaves a multitude of those guilty of implementing the crimes and a corresponding multitude of broken victims.  Both are in an unhealthy state of shock: even the human beings guilty of the atrocities are damaged.  If there is to be hope of a healthier future, there must be some closure.

I don’t think we can hope for real healing, restitution or even forgiveness.  But we can strive for at least a narrow reconciliation so that future conflicts are diminished.  A model for this was demonstrated in South Africa.  The basic parameters for this was immunity for those committing but confessing to the crimes and apologies.  It did not make everything right, but it did bring sufficient closure.

The greatest gift the United States could give the world, and its greatest legacy, would be to fulfill the commitment to human rights that we began as an infant republic.  We should protect, strengthen and guide the infant ICC.  We need to be there during the critical 2009 review.  A threshold question for all candidates this fall to any national office should be whether they are resolved to bringing the United States back on board the ICC.

UPDATE/correction.  The VPS conference was not held in Vietnam.  It was held at a Doubletree in Santa Ana, CA.

15 comments

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  1. This is something I need to know more about. Your diary is very informative.

    • Benny on April 21, 2008 at 4:33 am

    And while we make jokes about the Hague, there is a lot more to the process.  I wonder since our current SCOTUS has trouble with this jurisdiction, what might portend for the future?

  2. and I haven’t known as much about the ICC as I should.  I too keep talking about the Hague. And I’ve actually got a cousin who’s married to one of the ICC judges.  Thanks to your diary, I looked him up.  Yes, it’s the ICC, and not the Hague, like I’d been thinking.

    I wish Bushco could be tried there

  3. on a subject matter that is vital to restoring our moral integrity abroad. It doesn’t surprise me in the slightest that Bush unsigned us from the Rome Treaty.  

    • pfiore8 on April 21, 2008 at 1:07 pm

    and hello ashlarah!

  4. Thank you.

    • edgery on April 21, 2008 at 4:15 pm

    As we can see from the countries/crimes already pending, the ICC can be a critical link in bringing justice to bear on human rights violations.

    Thank you for such an indepth and informative piece of CJ.

  5. This is so very informative.  Thank you.  It seems to me the notion of an International Criminal Court has been a long time coming, as the UN has largely been ineffective as a peacekeeping umbrella. It could and should serve as a deterrent to the would be perpetrators of genocidal attrocities and war crimes.  

    Like others above, I am not at all surprised that Bush does not care for the U.S. to be a signator to the ICC.

    And, yes, we must urge whoever may be a new president that we must join the ICC.

  6. goerge will never join …..

    since he would be the first one tried by the world community, due to our unwillingness to clean house and own up ;-)…….

    question would a future democrat in the white house join?!?……………….

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