Why is a court tasked with dispensing justice to those alleged to have committed war crimes, crimes against humanity and genocide wherever they are in the world only pursuing non-Westerners? Since its inception in 1998, the International Criminal Court (ICC) in The Hague has only opened investigations into ‘situations’ on the African continent in Uganda, the Democratic Republic of the Congo, the Central African Republic, Kenya and the Sudanese region of Darfur.
In a world where so many innocents have been killed, maimed, wrongly imprisoned, tortured, displaced or forced into starvation with the perpetrators seemingly immune from prosecution, it is clear that the court’s mandate should be broadened and its powers increased. For international justice to be meaningful it must be one-size fits all. Anything less is a mockery of the principles on which the ICC was founded. Either the ICC should be empowered to try all those suspected of committing crimes within its remit or it should close its doors.
Former United Nations Secretary-General Kofi Annan once said that he hoped the court “will deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.”
Those hopes have been dashed. In practice, the ICC is toothless when it comes to landing big fish and relentless in its pursuit of weaker fry. I’m amazed by the lack of outrage over such blatant inequality exercised by a court that is supposed to protect the rights of victims wherever they may be. An international court should stand as an example to national courts. Imagine the public outcry were the British government to decide that London’s Central Criminal Court ‘The Old Bailey’ could only try nationals of certain countries allowing all others to walk free.
On July12, the ICC issued a second arrest warrant for the President of Sudan Omar Al-Bashir alleging that he bears individual criminal responsibility for genocide committed in Darfur in addition to war crimes and crimes against humanity. In recent days, the court’s Chief Prosecutor Luis Moreno-Ocampo has asked members of the United Nations Security Council to ensure President Al-Bashir is arrested and brought to trial. The Prosecutor’s enthusiasm for his job is commendable but why doesn’t his zeal extend to other leaders who may have blood on their hands?
The fact is the hands of Mr. Moreno-Ocampo and his colleagues are tied because the ICC can only open an investigation under one of these three conditions: the accused is a national of a member state; the alleged crime was committed on the territory of a member state or the case is referred to the ICC by the UN Security Council.
In effect, those conditions constitute a straightjacket for the court, whereby nationals of most big powers are excluded from its jurisdiction. For instance, three of the five permanent UNSC members China, Russia and the US have declined to become ICC member states (the US signed the Rome Treaty but never ratified it) and can, therefore, use their powers of veto to block their nationals - as well as nationals of allied nations - being referred to the ICC.
That is the main reason President George W. Bush and others in his administration were able to evade accountability for their role in the deaths of up to one million Iraqis during a war waged on cooked-up pretexts. I’m appalled that someone could wreak so much devastation - and preside over a crippling global economic downturn – without facing any consequences whatsoever.
In a published letter dated February 10, 2006, the ICC Prosecutor admitted that war crimes may have been perpetrated in Iraq but those allegedly committed by nationals of member states were not serious enough to warrant investigation. In other words, the ICC does not have jurisdiction over crimes committed by Americans on the soil of a non-member country. This doesn’t, however, explain why the ICC refrained from investigating Britain’s former Prime Minister Tony Blair, whose country is a member state.
Blair shares culpability with Bush for the destruction of this ancient Arab nation. Furthermore, evidence is emerging from the Iraq Inquiry, currently underway in London, that Blair deliberately hyped-up the threat from Iraq’s weapons and was aware that the invasion was illegal in the absence of a UN Resolution authorizing force. Proof is also emerging that under Mr. Blair’s watch, Britain’s MI5 was complicit in the rendition, torture and illegal detention of insurgents. Yet since his resignation from office Blair has been rewarded with high-profile positions and lucrative speaking engagements.
The restrictions placed upon the ICC evidences what most of us already know. International law is of little relevance to major powers and their friends. While President Al-Bashir is liable to arrest should he venture out of Sudan, Israeli war criminals are treated with kid gloves in Western capitals fearful of landing up in Washington’s bad books. Israel’s former Prime Minister Ariel Sharon ‘the Butcher of Beirut’ was found by an Israeli tribunal to have been indirectly responsible for the massacre of Palestinians in Lebanon’s Sabra and Shatila camps yet he was subsequently feted in the US and elsewhere.
In recent times, the British government has tipped off high profile Israelis intending to visit the UK that they were liable for arrest in relation to private prosecutions. Last year, an arrest warrant for Israel’s former Foreign Secretary Tzipi Livni for war crimes issued by a British court was dropped due to pressure from the Brown government. Today, Britain’s new coalition government is attempting to change the law of universal jurisdiction so that Israeli criminals get a free pass.
“We cannot have a position where Israeli politicians feel they cannot visit this country,” said Britain’s Foreign Secretary William Hague. Naturally, those concerns do not extend to President Al-Bashir who is the leader of an Arab country. Arab leaders are fair game as we witnessed when the occupiers cheered the kangaroo trial that sent Saddam Hussein to the gallows. If the Arab world doesn’t stand with President Al-Bashir, then we can only wait to see which Arab head of state will be the next to feature on the ICC’s wanted list.
Such biased attitudes were highlighted when the Goldstone Report recommending the UN’s referral of certain Israelis to the ICC for war crimes and crimes against humanity in Gaza was ignored by the Security Council, which has also turned a blind eye to Israel’s attack on a Turkish aid vessel in international waters as well as its continuing illegal blockade of Gaza.
There is only one law that governs the international community: might is right. To pretend otherwise is nothing but hypocrisy. I will not be happy to see the Sudanese leader flown to The Hague unless seats are booked for Bush, Blair and Benjamin Netanyahu too. If the author Jonathan Swift was right when he wrote “Laws are like cobwebs which may catch small flies, but let wasps and hornets break through,” those laws and the system of justice that applies to them must be changed.
Khalaf Al Habtoor is a businessman and chairman of Al Habtoor Group.
