Seven years after it was founded, and despite attracting 111 sovereign nations as signatory member states, the ICC remains a dream unfulfilled.
A bit of a wobbly bicycle rolling down slope…
Massive calls for war crimes investigations following the humanitarian catastrophe that was Israel’s Gaza war have fallen on deaf ears.
The Israeli army aggressively attacked the Gaza civilians, like ”shooting fish in the barell” and the following total blockade and strangulation of the 1.5 million Palestinian people interned to make them change their beliefs, seems to be terrorism, because thus is based on the definition of the United States. The Gazan Palestinian people living under a wall with guard towers and machine gun posts, cordoned off and closed in, mostly resemble the Warsaw ghetto under Nazi command, rather than the state of Israel’s historic aspirations to be a nation of free people. It is in that open air concentration camp called Gaza territory, and under an Israeli self defeating, illogical militaristic doctrine, that major ICC crimes are committed daily. Crimes like the seizure of aid ships and the killing of unarmed civilians, in INTERNATIONAL WATERS. These ships were attacked not by Somali pirates but by the official army of the state of Israel, to their eternal shame. All that happened while the ships were heading to Gaza under ”White Flag” to deliver humanitarian aid, and medicines. These are the constant reminders of the failures of the International Criminal Court as it carried its first ever review conference.
The meaning of strangulation of a whole people as in “strangling” their community and economy that has already been destroyed during 40 years of occupation can do nothing but cause immense suffering to the people living in it, as numerous reports by the UN, Israeli, Palestinian and international aid organisations have documented in great detail is clearly the Israeli State policy. Misguided as it is it persists as a remnant of idiotic doctrine. Indeed, to “strangle” an entire people economically because of their political beliefs and their identity, can only mean to try to destroy their ability to survive as a national group, which is a serious crime against humanity.
But here the ICC stands silent. Failing thus both the great state of Israel and it’s people and also the Palestinian Gazan people. Remember, the rule of Law serves both sides handsomely. The benefits of Peace will be far greater for Israel than for Palestinians, simply because of the size of their respective economies and attendant world standing.
Still after tens of millions of pounds have been poured into the court, and astonishingly the ICC judges have yet to jail a single war criminal.
Just three suspects are actually on trial at the court, and in those seven years a total of 14 arrest warrants have been issued.
Worst of all, there has been a steady draining-away of support from member states, many of whom are uneasily aware that one day the ICC cross hairs may be trained on them.
The reaction of the African Union to the indictment of Sudanese president Omar Al-Bashir for crimes against humanity in Darfur has been to close ranks, agreeing they will not arrest him if he sets foot on their territory.
While opposition from tyrannies and strong men in corrupt regimes, is to be expected, the same opposition, has also come from the world’s most powerful democracies. Especially from the UK and the US which is one of many states nervous that aggressive war and their recorded torture of civilian prisoners and women and children and all terrorist suspects, could land its own political leaders in the dock. Yet that is the reason for the whole exercise. To keep Leadership honest and faithful to the Law. You break the law – You get broken. Simple.
And even in cases of international diplomatic expediency, the norm is to avoid infuriating the powerful leaders.
As an example, both London and Paris and quietly even the US, have given consideration to the idea of suspending the charges against accused the ”Genocidaire” Bashir, dictatorial leader of Khartoum; if he could deliver a workable Peace plan in Darfur.
Another example is that the United States has argued in front of the ICC court as an observer; that a report by eminent jurist Richard Goldstone, accusing both Israel and Hamas of war crimes during fighting in Gaza 18 months ago, should be ignored, lest it get in the way of any future peace process for a two state solution for Palestine and Israel.
Admittedly the International Criminal Court has been a political third rail in the United States. Long opposed by senior military leadership, it was signed onto only with grave reservations by the Clinton administration, and quickly unceremoniously ”unsigned” by the Bush administration. Proof positive of Cheney’s bush will to violate the provisions and act aggressively and engage in illegal wars, hoping to avoid prosecution. Their well documented disregard of justice and their ”No respect for the law” and avoidance of the shining light of jurists, allowed them to go unchecked to their own demise. This in turn caused their spectacular downfall and the current bankrupcy of that ideology, along with all the political capital of the great country. This example best illustrates, why the powerful ought to be the proponents of the Court first, well before the powerless and most vulnerable.
“Our greatest glory consists not in never falling, but in rising every time we fall.” Thus said the poet Emerson, speaking to none in particular and all of us in turn.
But there is hope here too. Recent developments in Washington, New York, and the Hague suggest that a policy of formal U.S. government opposition to the Court may yield to a policy of de facto acceptance and active U.S. cooperation with the Court in its important mission. The time is at hand for a major reassessment of the relationship between the United States, the International Criminal Court, and the broader issue of U.S. policy toward international justice. If the ICC can be seen for it’s Realpolitik value as a means to engage peacefully with other nations, and if the public and the Politicos reframe the discussion on the ICC, by broadening the focus to address not simply the Court but the broader issue of United States policy toward international justice; then the U.S. should actively support the ICC, not as an act of international charity, nor as a project of global governance, and not even principally to send a strong message of international cooperation, but rather, because it serves first and foremost the United States interests and Foreign policy goals and is fully consistent with the values to which America has aspired since it’s founding day.
Even as a non-member, though, the United States has important interests at stake in the ICC’s operations. On the one hand, the court can bring to justice those responsible for atrocities, something with both moral and strategic benefits. On the other hand, there are fears that the court could seek to investigate American actions and prosecute American citizens, as well as concerns that it will weaken the role of the UN Security Council (where the United States has a veto) as the preeminent arbiter of international peace and security…
If and when the US State department though manages to balance the scales and focus on the foreign policy, national security, and moral case for shifting U.S. policy toward the Court and supporting the ICC by signing onto it once again; then great benefits will appear on the horizon, and will herald the just dawn of a New Era. Not only the potential future Coconut heads like Cheney’s bush will be prevented from habitually ignoring the law at the peril of the American people’s security and sovereignty, but also the other coconuts and petty banana type dictators will be deflated. After all, ”One needs to be reminded as a Leader, that great and small sovereign powers that fail to protect the essential right to life; are failing in their most basic obligation.” Thus spoke Marcus Aurelius… a while back.
Still this atmosphere of scepticism from the US State Department top, has combined with the failure of the ICC to get a grip on the crimes it is supposed to be investigating, thus lowering expectations of what this court can actually achieve.
So while hundreds of national delegates, UN people, International lawyers, jurists, judges and human rights watchers, have gathered in Kampala to take stock of the ICC’s achievements, expectations were admittedly low.
Few expected the member governments to agree on the big agenda item, which is whether to add the crime of aggression to the court’s statute.
The ICC has agreed in principle that it should prosecute this crime, and the United Nations charter already defines aggressive war. But turning a promise into a workable law is fraught with difficulties, not least the fact that no member state wants to create a noose that may one day ensnare it.
Meanwhile, the ICC will continue to suffer the handicap of having no police force to enforce arrest warrants. This has left it in the absurd situation of expecting, in effect, the warlords to arrest themselves.
With all this going against it, some predict that the ICC is already on the downslope of irrelevance; a court with no power to act which will slowly fade into oblivion.
And yet here it is. When the first temporary UN war crimes court opened in 1993, there were predictions that it would be a blip. Yet the ICC review conference shows that war crimes law has elbowed its way on to the world stage. And while their governments may shudder, public support continues to grow.
Africans see the court as a guarantee against the excesses of their leaders, and South Americans hope the court will act as a brake to any chance of a comeback for the old military juntas. The continuing controversy over Britain’s invasion of Iraq shows that much of the British public is similarly convinced that the rule of law should extend to armed conflict. That is mirrored by the great shift in the US public and it’s negative views on the two war malaises that the Cheney bush brought to the great nation. Obama wants to extricate himself from the Quagmire honourably and this ICC development, might give him the ticket to do so politely…
So perhaps UN Secretary-General Ban Ki-moon, speaking at the conference, was not too far off the mark in judging this global change of mood when he called the ICC “a fundamental break with history”.
And here is the miracle. The crime of ”War of Aggression” resolution passed. In a move that international lawyers describe as “a giant leap,” members of the International Criminal Court agreed to add aggression to the court’s short list of prosecutable crimes
The United States opposed the resolution, but as a non-member of the eight-year old court, had no ability to block the adoption. Still, it was notable that the United States participated strongly in the heated debate. State Department Legal Advisor Harold Koh and Ambassador-at-Large for War Crimes Issues Stephen Rapp led a sizeable U.S. delegation to the two week meeting in Kampala. Luckily the ICC review meeting ended with the consensus adoption of the definition of aggression and mechanisms for triggering an investigation.
Well Done.
God Speed and Good Luck to all of us.
Yours,
Pano
PS:
That is the measure of the ICC.
For the first time in history, the world has a court that can make global leaders answerable before the law.
The challenge is to make this law work.
PS2:
Reasonable voices from around the world are streaming in support of the ICC future:
David Scheffer, an international lawyer, who was the U.S. Ambassador for War Crimes Issues from 1997 to 2001, had this to say: “The historical significance of these ICC developments cannot be understated.”
He continued:
“This is truly one giant leap. Perhaps, just perhaps, the action in Kampala will finally lock in a credible means to holding powerful individuals, those who intentionally launch massive acts of aggression, accountable for their actions and to instilling, over the years, greater deterrence to the aggressive instincts of insecure leaders.”
