Wednesday, March 9, 2011

World justice on trial - REFLECTING ON THE LAW By Prof SHAD SALEEM FARUDI


Source - The Star.com
Malaysia must take note of the strengths and failings of the International Criminal Court and inquire if it is a candle in the dark or a tool of colonialism and imperialism.
OFFICIALS of the International Criminal Court (ICC) are in Kuala Lumpur to convince Malaysia to ratify the Rome Statute to make Malaysia the 115th country to join this historic institution that heralds a new era of international justice. The ICC was set up in 1998 and began operating in 2002. It provides a permanent international forum to prosecute those responsible for crimes against humanity, genocide, war crimes and crimes of aggression. It seeks to end impunity and to send a strong message to perpetrators of mass atrocities. Since its inception, it has succeeded in extending the international ban on certain weapons like poisonous gases and internal armed conflicts. Its crowning achievement is the creation of domestic laws in many countries to prosecute grave breaches of humanitarian laws. It has opened five investigations, issued charges against 12 people and secured custody of four accused. It has indicted the serving President of Sudan. In considering whether to join the ICC, Malaysia must take note of the strengths as well as the failings of this international tribunal.
First, all prosecutions by the ICC up to now are against African leaders in Uganda, Congo, Kenya and Sudan. There may be one soon against Muammar Gaddafi of Libya. This “African centredness” is surprising because we know that similarly grave or even worse offences have been committed elsewhere. Second, despite the ICC’s existence, superpowers like the United States, Britain, France and their allies are not at all deterred. They are still attacking the weak. Pre-emptive and unilateral wars of aggression are being waged. Genocides are raging. New holocausts are being perpetrated. Nuclear threats are being issued against nations like Iran that refuse to bow to the hegemony of the West. The ICC is selective in its prosecutions. For instance, war criminals in Britain and Australia belong to a ratifying state and as such are subject to the ICC’s jurisdiction. The ICC has been approached by 240 complainants from Iraq. Its chief prosecutor Luis Moreno-Ocampo has amazingly ruled that the complaints do not have “sufficient gravity” to merit the initiation of a prosecution.
No indictments have been served on former US president George Bush and Secretaries of Defence Dick Cheney and Donald Rumsfeld, former British prime minister Tony Blair, Israeli prime minister Benja­min Netanyahu and his predecessor Ehud Olhmert, former Australian prime minister John Howard, leaders of Sri Lanka, Ugandan president Yoweri Kaguta Museveni, Congo rebel leader Laurent Nkunda, and Rwandan president Paul Kagame despite their complicity in the murder of millions. Cluster bombs, phosphorus, depleted uranium and chemical agents have been used by these leaders in some of these conflicts. American professor Francis Boyle points out that despite the fact that Palestinian president Mahmoud Abbas accepted the jurisdiction of the ICC two years ago, the ICC prosecutor has refused to investigate the crimes against humanity inflicted upon Palestinians by Israel. Third, countries like the United States, Israel, Russia, China and India remain outside the ICC. Under Bush, the United States derecognised the Rome Statute. As such, Washington is not obliged to surrender any US perpetrators for trial before the ICC. In fact, it has gone so far as to adopt measures that would allow it to use force to retrieve its nationals detained by the ICC. This reality renders the ICC as a body that can only pursue cases against weak states. Fourth, for a crime to be prosecuted before the ICC, it must be committed on the territories of a member state of the ICC. Iraq and Afghanistan are not parties to the ICC Statute and the bestialities committed there by the American allies are therefore exempt from the ICC’s jurisdiction.
Fifth, Article 98 of the Rome Statute provides that a country need not hand over a foreign national to the ICC if it is prohibited from doing so by an agreement with the national’s country. The American government has forced nearly 100 countries to sign such “Article 98” agreements, thereby making its war criminals immune from international prosecution. Sixth, the UN Security Council (UNSC) has the power to refer crimes committed by a non-signatory to the ICC (as it did for Darfur). But due to its geopolitical, racial and religious bias, the UNSC is unlikely to refer wrongdoers in the United States, Israel, Russia and China to the ICC.
Seventh, the ICC can investigate a case only if national courts fail or are unable to investigate a case. Major offending states like the United States, Israel and Britain put up the charade of prosecuting low-ranking soldiers but ignore compelling evidence that the massacre of civilians, tortures and other crimes against humanitarian law were authorised by top politicians. Eighth, before mounting the Iraq invasion the US president had threatened the use of nuclear weapons. During the war, the United States and Britain used many weapons of mass destruction (WMD) that are banned in international law. Use of these WMDs is not a crime under the ICC Statute. India had asked for inclusion of nuclear weapons and WMDs as a crime against humanity but the United States disagreed. Ninth, the ICC is to some extent a tool of national leaders who report rebels and oppositionists to the ICC. It is noteworthy that three of the four active cases in Africa involve opposition figures referred to the court by their own governments.
One should therefore ask whether the ICC is a candle in the dark or a tool of colonialism and imperialism. It is undeniable that because of its link with the UNSC, the ICC is indeed a Western tool that reflects the racist and colonial nature of the UNSC. Its silence in the face of heinous crimes in occupied Iraq, Afghanistan, and Palestine (especially Gaza) is deafening.
Malaysia should stare the ICC officials in their faces and ask them why is there such unequal harassment under the law, and why is there such callous indifference to the barbarism, slaughtering and stealing in Iraq, Afghanistan, Lebanon and Gaza. Nevertheless, our fidelity to human rights demands that we subscribe to a system of international justice against mass murderers. It must also be remembered that many of the failings of the ICC are the failings of the UNSC. Despite many reservations, it would be a folly not to join hands with this historic institution of international criminal justice. As Eleanor Roosevelt said: “It is better to light a candle than curse the darkness.”
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.

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