Category Archives: War crimes etc

Open letter to the Pentagon’s Rosa Brooks

Dear Rosa:
I hope you and the family are all well. It’s been a while since we got to know you and your fabulous mother, the principled and gutsy activist Barbara Ehrenreich, when you were living in Virginia. You were still such a big human rights activist at that time.
So anyway… No polite way to phrase this… Rosa, What the heck are you doing in your current role as Deputy Assistant Secretary of Defense and Special Coordinator for Rule of Law and Humanitarian Policy, “running a new Pentagon office dedicated to those issues”… with regard to, primarily:

    1. The Executive Order that Pres. Obama signed March 7, in which he expressly allowed for the indefinite detention without trial of suspects in the U.S. military prison at Guantanamo Bay; and
    2. The appalling and deliberate humiliation to which warders in a U.S. Navy brig (naval prison) have been subjecting accused secrets leaker Bradley Manning.

Rosa, what on earth is going on– and what has your role been in all of this??
It is so hard to believe that you, Rosa Brooks, have been turning into John Yoo in this way. Rosa Brooks! With your long record as a consultant for Human Rights Watch, a fellow at he Carr Center for Human Rights Policy at Harvard, a board member of Amnesty International USA, for goodness sakes, and a member of the Executive Council of the American Society of International Law.
Rosa Brooks, whose newspaper columns at the L.A. Times, 2005-2009, were nearly always deeply animated by your defense of the universal rights of all persons– including the fundamental right to liberty and the right, if accused of a crime, to a fair and open trial… and the rights of all, whether incarcerated or not, to basic standards of human dignity and freedom from torture.
Sadly, the way that this September 2006 column of yours is titled on the website, now looks eerily prescient:”Rosa Brooks: Our Torturer-in-Chief.”
Rosa, please explain so that I and others can understand it: After two years of working in the Pentagon, has the evil of torture now become so routine and (as Hannah Arendt put it) “banal” for you that these latest, extremely abusive steps from the Obama administration now seem “okay” to you?
Do you see your role in the Pentagon as somehow being “to make things less bad than they would otherwise have been”? That is a common reason given by people who get sucked into doing the work of running the apparatuses of repression. (It’s also a “reason” that women who have been abused by their partners commonly give when they decide to stay with them, rather than quit.. Think about that. Are Michele Flournoy and your other bosses at the Pentagon and in the White House actually abusing you and your lengthy record of rights activism when they continue to employ you as their fig-leaf?)
Doing work of the kind you’re doing at the Pentagon is also nicely paid and (in some quarters) prestigious. But I can’t imagine that you have the excuse that your family needs the money you’re getting at the Pentagon. You were doubtless pulling in big bucks before as a law prof at Georgetown; and your husband, Peter Brooks, is not hard up, either. Nor can I believe that you “need” the prestige of working as a relatively lowly DAS at the Pentagon.
So why do you stay there at the Pentagon, providing a quasi-liberal “cover” for an administration that is, let’s face it, behaving in these matters no better than than the George W Bush administration behaved?
Rosa, please consider resigning. Your resignation from this strange office you are holding there could make a real difference. If you do it right, it could make 100 times more of a difference than you could ever hope to make if you simply stay on, tidying up some little portions of the detentions policy around the edges while continuing to act as a liberal fig-leaf there.
If you don’t resign, then that would be the saddest thing.
I wonder what your mom will think of you if stay on as “Rosa Brooks: Our Torturer-in-Chief”. I know what I would think of you.
Stay well, whatever you decide… But please, examine your soul deeply over these two latest, tragic steps.
Warm regards– Helena.

The STL and the myth of judicial virginity

The myth propagated by supporters of the various “international” criminal tribunals established since 1992 has been that somehow a judicial proceeding could rise completely above the sordid field of politics and follow its own complete integrity. I used to subscribe to that myth. But in 2000-01, as I started to investigate more closely the work of the two ad-hoc tribunals created by the UN during the mid-1990s, it became clear that “international” criminal tribunals can never, ever, be separated either from the politics of the countries whose developments they probe (and whose politics are inevitably affected by the work of the tribunals themselves)– or, from the politics of the “international” constellation of governments that establish, fund, and provide continued support for these tribunals’ work.
My 2006 book Amnesty After Atrocity? provided copious evidence of this, with regard to the work of the International Criminal Tribunal for Rwanda. But it is not only the ICTR whose work is irredeemably politicized. So has been the work of all “international” tribunals running from the Ur-example in Nuremberg through to today’s “International Criminal Court.” As longtime JWN readers know, I’ve written a lot about this issue, both here and (earlier) on the now nearly-defunct “Transitional Justice Forum” blog. Check over there for, in particular the field reports of the reporting trip I made to northern Uganda in 2006, to assess the very harmful effects that the work of the ICC was having on peacemaking there.
And then, there was the travesty of the (heavily U.S.-supported) Saddam Hussein trial…
Plus, the fact that the government leaders in Washington responsible for launching the completely unjustified invasion of Iraq in 2003, and therefore also all the deaths and violence that ensued from that invasion and occupation, were easily able to evade ever being held to account for that act of aggression (an act that was, at Nuremberg, certainly prosecutable– and prosecuted.) This, while the U.S. has also stood quite aside from all entreaties that it join the ICC– though over recent years it has given extensive logistic and financial support to some, but not all, of the ICC’s investigations and prosecutions… when this suited Washington’s own, inevitably political, purpose.
The neutrality of these judicial bodies before an “impartial” international law? That is nowhere to be seen.
… And then, there is the Special Tribunal for Lebanon,a body that has been irrevocably “politicized” and “political” ever since its establishment in 2006-07. It is a joint project of both the U.N. Security Council and the Government of Lebanon, established at a time when the U.S. still held important sway over both bodies.
Now, Hillary Clinton and her people are busy talking about the need to allow the STL to continue doing its allegedly quite “impartial” work. The STL has been the focus of considerable controversy and swirling allegations and counter-allegations over its years in existence, and I confess I have not followed these with enough diligence to be able to make clearcut judgments regarding them.
What I can say with a high degree of confidence, based on my own work on this issue of international tribunals over the past decade is that no criminal court, within a country or at the global level, can ever have its work divorced from politics. Criminal prosecutions at a national level involve the state using the laws that already exist within the country to bring a prosecution against a defendant, who may upon being found guilty be subjected to serious sanction by the state– even, in the U.S. and elsewhere, the death penalty.
At the national level, too, the head of state or government always has the power to give clemency or pardon to convicted criminals (as in the case of Elliott Abrams in the U.S.), and leaders often use these powers with the goal of fostering national unity, or other worthwhile political goals.
And at the global level? Where is the agreed-upon, duly legislated, and equality-respecting legal basis for the work of international prosecutors? Where is the opportunity for global political leaders to issue pardons or enact clemency? Where, in short, is the supra-“judicial” legal-political infrastructure that can assure the impartiality as well as general social utility of the work of prosecutors and judges?
It doesn’t exist. In a world marked by striking political inequalities– especially between countries that have P-5 status on the Security Council, and those that don’t; and between countries that have at least submitted themselves to the judgments of the ICC, and those that haven’t– the “impartiality” of international criminal courts is a myth.
I wish it weren’t so. I wish we had the kind of global system in which all national leaders and other significant political actors could be held equally accountable for their actions. But we don’t. Rights activists from around the world who have put so much energy into fighting for the establishment and support of the existing international courts really also need to examine closely the effects that these courts have had on the lives, livelihoods, and wellbeing of the millions of citizens of the countries that have been their targets. In Amnesty After Atrocity? I looked at the effects on the citizenries of Rwanda, South Africa, and Mozambique of the widely differing approaches those three countries adopted to the issue of seeking “accountability” for past war crimes, crimes against humanity, and genocide. The two countries that decided against using criminal courts to deal with perpetrators of atrocities during the episodes of severe violence that all of them had suffered were the ones that came out with their social cohesion, political purpose, and the rights situation of their citizenries the best assured.
It is not only in Lebanon that a crucial “trade-off” exists between the work of (an inevitably “political” and backward-looking) international tribunal and the prospects for peace and people’s wellbeing going forward. Look at some of my own past work on this issue. Look at what the Obama administration is now actively considering doing in the context of Sudan, for goodness sake! Today, White House officials including “Ms. Anti-Genocide” herself, Samantha Power, are openly talking about the possibility of easing up the pressure that Pres. Omar Hassan al-Bashir has been subjected to from the ICC, in exchange for his cooperation with implementing the results of the South Sudan referendum.
It surely should not be that only in Lebanon does Washington pursue the chimera of the “impartiality” of a tribunal with strong international dimensions at the expense of the wellbeing of the target country’s citizenry.
Accountability for Rafiq Hariri’s killing? One day, let’s hope, the facts will all emerge. But this highly politicized judicial process centered in The Hague looks unlikely to be able credibly to uncover them. And if it does issue indictments, what then? STL prosecutor Daniel Bellemare and whose army will arrest those indicted? What of the Lebanese government’s supposedly co-equal role in managing this whole “criminal justice” project?
The next time Sec. Clinton or a State Department spokesman starts talking about the need to preserve the “impartiality” of this court, the STL, they should be asked about some of these very important questions…

H. Shue on advanced militaries targeting civilian infrastructure

The Oxford philosopher and ethicist Henry Shue has just published an extremely important piece of analysis (PDF here, pp. 2-7) that unpacks the timely issue of why it is that first-world militaries that have well-stocked arsenals of Precision-Guided Munitions (PGMs, also known as ‘smart bombs’) are also among those agitating hardest to loosen up the constraints that the laws of war have placed on bombing civilian targets.
This matter has, of course, great relevance both to the practice of the U.S. and the Israeli militaries during their wars of recent years, and to the current Israeli campaigns against what that government calls “lawfare”, that is, the attempt made by many in the international community (but not the U.S. government) to hold Israel to the same standards of international law, including the laws of war, as everyone else.
Shue lays out the basic conundrum he is investigating in these terms:

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C. Murray: Raid not piracy but war

Former British ambassador to Uzbekistan Craig Murray makes a strong argument here that the Israeli commandos’ assault on a Turkish-flagged civilian vessel in the high seas was an act not of piracy but of war. (HT Issandr el-Amrani.)
Murray writes:

    To attack a foreign flagged vessel in international waters is illegal. It is not piracy, as the Israeli vessels carried a military commission. It is rather an act of illegal warfare.
    Because the incident took place on the high seas does not mean however that international law is the only applicable law. The Law of the Sea is quite plain that, when an incident takes place on a ship on the high seas (outside anybody’s territorial waters) the applicable law is that of the flag state of the ship on which the incident occurred. In legal terms, the Turkish ship was Turkish territory.
    There are therefore two clear legal possibilities.
    Possibility one is that the Israeli commandos were acting on behalf of the government of Israel in killing the activists on the ships. In that case Israel is in a position of war with Turkey, and the act falls under international jurisdiction as a war crime.
    Possibility two is that, if the killings were not authorised Israeli military action, they were acts of murder under Turkish jurisdiction. If Israel does not consider itself in a position of war with Turkey, then it must hand over the commandos involved for trial in Turkey under Turkish law.
    In brief, if Israel and Turkey are not at war, then it is Turkish law which is applicable to what happened on the ship. It is for Turkey, not Israel, to carry out any inquiry or investigation into events and to initiate any prosecutions. Israel is obliged to hand over indicted personnel for prosecution.

Murray also notes, interestingly, that the new (Conservative) British Foreign Minister, William Hague, has issued a statement on the massacre that is considerably stronger and better than anything one would ever have heard from “New” Labour.

‘Just War’ theory in the spotlight

I am briefly in London. Got here this morning. Heading to Wales on Saturday for some executive/management coaching… But recently, I was discussing with some friends the status of the whole body of theory called ‘Just War’ theory— in connection with it having coming under such stark attack from the strident Israel-first apologists of the so-called ‘Lawfare Project.’
So here I am, staying in the strongly Quaker-affiliated Penn Club in Bloomsbury, and what do I find in the library but a copy of Peter Brown’s important study of the life and work of Augustine of Hippo, who was the prelate who first introduced into Christian theology the idea that some wars could indeed be ‘just.’
Prior to that, most followers of Jesus of Nazareth had worked hard to follow in his pacifistic footsteps. But by the time Augustine, who was born in North Africa, got coverted to the faith in the late 4th century CE, Christianity was well on its way to becoming the religion of the Roman Empire. And it was after (‘Christian’) Rome was sacked by the Goths that Augustine sat down in North Africa and started writing the multi-volume work, “The City of God” that planted the first seeds of the permissibility of war.
So I sat and read a couple of the relevant chapters of Brown’s book. Then I went to the nearby British Museum and discovered that I had just, by about half an hour, missed attending a lecture on the sack of Rome.
It happened exactly 1,600 years ago this year… And the reverberations of the church’s subsequent “conversion”, under Augustine’s urging, to a doctrine that permitted war, have been strongly felt throughout Europe and indeed the whole world, until today.
Just War theory is really a sort of two-edged implement. It seeks to strictly restrict and regulate the occasions on which a ‘just’ ruler can have recourse to war. (Indeed it seems to be predicated on a realistically strong recognition that wars always cause harm, even when their cause is ‘just’, and that their course is always unpredictable.) But, for the first time in the history of Christianity, once Just war theory was promulgated and adopted, wars thereafter became permissible… which is one heck of a dangerous slippery slope to be sliding around at the top of.
Because if you think about it, no-one who has ever started a war has set out from the get-got with anything less than the firm conviction that this war is just.
But, um, in that case, how can two countries ever fight each other, if the causes for which both of them are fighting are just?
Imagine this: George W. Bush, to a still-skeptical Congress in late 2002: “Well, I admit our evidence on the Iraqi WMDs is kind of spotty; and it’s true we really haven’t exhausted all the diplomatic options for dealing with our concerns; and I realize that if we launch an invasion of Iraq things there may take a very unpredictable course… but I’m asking you to give me congressional backing to take the nation into war against Iraq, if need be.”
No, that’s not how leaders launch wars. First they convince themselves that this is a war of absolute necessity, then they set about convincing others, colluding in the manipulation of the evidence if that’s what it takes.
The Nuremberg Tribunal had it absolutely right when, in the statute establishing the tribunal they declared the launching of an aggressive war to be a crime against the peace. Too bad the provisions the negotiators for the 1998 Rome Treaty, which established the International Criminal Court, never gave substance to the (still-hollow) provisions made in its text for the (future) criminalization of the launching of war.
As I have argued on numerous occasions, waging war is the original Ur-atrocity that creates the circumstances in which all the other kinds of atrocity that were fleshed out and given teeth to at Rome, then occur and proliferate.
Well, anyway, what is there to say about all these “lawfare” people who smear and defame Judge Goldstone and everyone else who tries to call Israel to account for its actions; and who accuse all the human-rights and international humanitarian law activists around the world of “unfairly singling out Israel”?
Mainly, that we’ve seen it all before– from apologists for every single state that has ever been accused of committing atrocities.
These pro-Israel activists, however, have taken the defamation and smearing of Israel’s critics to heights few others have ever reached before.
Why on earth do they think that Israel, alone among the nations, should not be held accountable for its actions? Where do they get off, trying to persuade others around the world that Justice Goldstone, a very distinguished member of the Constitutional Court of South Africa and a key figure during his country’s transition to democratization, is some kind of a hate-filled (self-hating?) crazy guy?
Well, they won’t succeed in persuading very many people at all of this– except in those pockets of the U.S. Congress and administration that have been deeply manipulated for many years by Israel-first propaganda.
Mainly what they achieve is that they reveal themselves to be so consumed by fear and hatred that it seems to have addled their brains. Sad. Sad. Sad.

A Strange Alliance at the Supreme Court…

    I am pleased to be able to publish this contribution by Sam Singer, a 2009 graduate of Emory Law School who’s a Staff Law Clerk for the US Court of Appeals for the Seventh Circuit. Copyright in this text remains with Singer. ~ HC


A strange alliance at the Supreme Court: The pro-Israel lobby’s curious defense of an alleged Somali war criminal.
by Sam Singer©
Mohammed Ali Samantar is the only living vestige of the Barre regime, the last government in two decades to exercise central control over Somalia and, not coincidentally, the last that was impudent enough to try. When Siad Barre was finally overthrown in 1991, Samantar, who had served as defense minister and prime minister, fled, in a storm of bullets, to Italy. He eventually made his way to Fairfax, Virginia, where he lived in suburban obscurity until a group of Somali nationals discovered him, hired a lawyer, and sued for damages. According to his accusers, the Barre regime committed unforgivable acts of violence against them and their families, offenses spanning a range of brutality from arbitrary detention, to torture, rape and extrajudicial killing. Samantar was allegedly aware of the crimes being perpetrated against civilians and yet failed to stop them. The suit was dismissed by a federal district court and then reinstated by the US Court of Appeals for the Fourth Circuit. It is now pending before the Supreme Court, where a peculiar coalition of defenders is urging reversal.
Among them, to the confusion of some observers, are five prominent pro-Israel organizations, each with a professed interest in keeping Samantar out of court. In joint amicus briefs, the groups insist that as a former government official, Samantar should be immune from suit. To hold otherwise, they warn, would violate international law and set an inviting precedent for Israel’s enemies and their supporters in the human rights community.
The arrival of the Israel lobby adds geopolitical intrigue to a case that already read like a Ludlum thriller. And because it speaks to real and immediate consequences, it lends concreteness to a discussion that would have otherwise carried on in the abstract. It is one thing for a lawyer to appeal to legal authority for the proposition that the courts of one nation ought not sit in judgment of the acts of another; it is quite another for five groups purporting to represent the interests of the Israeli government to advise that doing so in this case would be to declare open season on Israeli officials in US courts.

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Max Blumenthal on N.Y. ‘Lawfare Project’ conference

Blumenthal went to this seven-hour conference, held Thursday by the ‘Lawfare Project’ in New York, and has written a great blog post about it at Mondoweiss.
The Lawfare Project has activities in both Israel and the U.S., that are designed primarily to discredit all those human rights activists and organizations worldwide that have criticized Israel’s actions, to criticize those provisions of the laws of war that they consider somehow “unfairly” hamper the armies of states that they judge to be “democracies”, and to work to overturn those provisions.
Sound familiar? Yes, of course these last two things were a big part of what Dick Cheney, Scooter Libby, David Addington, and John Yoo tried to do after 9/11, as well. They were arguing then– and the Lawfare Project is arguing now– that in the “unprecedented” circumstances of today’s worldwide war between the forces of “good” and of “evil”, the “old” norms and existing body of laws of war, which seek evenhanded application between all warring parties and seek to provide protections, in particular, to the citizens who are the victims of war, need urgently to be revised– and pending that, worked around.
How very sad, therefore, to see that one of the three co-chairs of Thursday’s conference was the Dean of Columbia Law School, David Schizer. Blumenthal has a seven-minute video clip from his speech, in the blog post.
Go read Blumenthal’s whole post, which is extremely well researched, as well as well written.
The flier for the conference notes that,

    This program has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 6.5 Transitional and Non-Transitional MCLE credits: 1 Ethics and 5,5 Professional Practice.

Ethics???
I think it’s outrageous and tragic that the Dean of a once-fine law school like Columbia is lending his prestige to this highly anti-democratic and anti-humane campaign (a major aim of which is to trash Judge Goldstone and block demands for implementing his report.)
But at a broader level, many of the developments within the Jewish liberal establishment in the U.S. are fascinating, because we are now seeing for the first time ever, I think, sharp debates within this establishment over the morality of actions taken by the current Israeli government and also, underlying that, over the morality of many of these very same tactics and strategies as have been used in Palestine by the Zionist settler movement throughout its entire 115-year history there.

Gaza police and noncombatant immunity

Phil Weiss, who’s read more of the Goldstone report than I have at this point, zeroes in on the paragraphs Goldstone and Co wrote about the IDF’s killings of police officers and cadets in Gaza.
He writes,

    The mission reports that 99 policemen and 9 civilians were killed in the first minutes of the slaughter. Overall, 240 policemen were killed during the war– a sixth of the Gaza casualties. Police were “deliberately” targeted. And on what basis? Well, Israel regards the police institutionally– or in large part individually– as part of the Gazan military.
    The mission analyzed the history of the Gaza police since the Hamas takeover in 2007. While policemen were recruited from Hamas followers, Goldstone found that the police are a “civilian law-enforcement agency” and that the police targets of Dec. 27 were none of them taking part in hostilities and had not lost their “civilian immunity.” Yes “individual” policemen were surely members of armed groups and can be considered combatants. But the Israeli attacks failed to strike an acceptable balance, between anticipated military advantage of destruction and civilian damage. The great majority of these policemen were civilians. So the mission concludes,This was a violation of international humanitarian law.

Now, Phil makes some very important points in that post. But he– and we– should note that a “civilian” is not the same as a “noncombatant”.
A noncombatant is a person whom, under international humanitarian law, it is forbidden to target, and who is therefore “protected” by IHL.
This includes civilians but it also includes members of a military formation who are not currently fighting. Hence the specificity of the term “noncombatant.”
This class of persons includes all civilians. It also includes members of military formations who are “hors de combat” because of injuries– along with members of military formations who are not “on duty” in the military at the time.
It would include, for example, even senior officers in the IDF or any other military (or of Hamas’s military formations) who are off duty– sleeping in their homes, or whatever. And it includes the many members of Israel’s reserve forces who, during the Gaza war or at any other time, might have been sleeping at home and going about their normal family and professional lives.
Many members of the police force in a place like Sderot may, for example, have also been reserve officers in the IDF. But at any time that they are not actually engaged in combat as part of the IDF– or, I think, in military training, which is a preparation for combat– they are considered noncombatants, and therefore have all the IHL protections of noncombatants.
Thus, for a Gazan, simply being a member of an armed group does not make a person into a “combatant”, that is, a legitimate target of Israeli fire. Unless he is currently engaged in combat, which the cadets at a police academy graduation ceremony evidently weren’t.
That’s the great thing about international humanitarian law: it applies to everyone in the same way.
… Anyway, that’s my only quibble with what is otherwise a really excellent post by Phil.

Gaza, the Obama administration, and the present

I was reading this account from Reuters of the way that Obama’s ambassador to the UN, Susan Rice, today tried to sideline and bury the important report of the Goldstone Commission.
Firstly, she brushed aside the report’s recommendation that the Security Council should remain actively involved in the follow-up efforts to win accountability from the accused perpetrators of atrocities on both sides during Israel’s December-January assault on Gaza.
Then, this:

    Rice said the focus should be the future.
    “This is a time to work to cement progress toward the resumption of (Israeli-Palestinian peace) negotiations and their early and successful conclusion,” she said.

At first blush this looks like a classic “peace versus justice” dilemma, of the kind I’ve written about extensively in my work on conflict termination and the “justice” issues deriving therefrom.
But then I thought there is already a very, very long history of Palestinians having their “justice” claims brusquely pushed aside in favor of the promise of a future, western-led peacemaking effort… And throughout the past 61 years those efforts have never, ever led anywhere.
So today, the Palestinians are once again asked to forget about their past grievances, and to focus on a promise of some kind of a future peace settlement that, if the past is any kind of a reliable guide, may well prove quite illusory.
Lost in all this, however, is the situation of the Palestinians– in Gaza, but also elsewhere– in the present.
Is there anything the US could do about this?
Of course there is! And it’s not only the case that the US could do something to help the Gazans in the present– the US also should be doing a whole lot more than it has to date to alleviate the harm that they continue to suffer on a daily and continuing basis, since it has enormous leverage over the government of Israel.
But Washington has used not one iota of that leverage to force Israel to open Gaza’s borders up for the passage of the freight that the Strip’s 1.4 million people sorely need in order to conduct a normal, safe, and dignified life.
Winter is approaching in Gaza, where it can bring rain and some bitterly cold winds. And despite all the representations that various do-gooders have made since the parallel ceasefires wet into effect on January 18, Israel has not allowed into the Strip any of the most basic construction materials that are needed to repair the extensive damage that the IDF caused during last winter’s war, in many cases quite intentionally, to housing, schools, factories, and public infrastructure.
So maybe now is not the time to pull together a huge series of international court cases to look into the atrocities of the past. (Or maybe it is.)
And maybe we should give the US-led diplomacy one last chance to build a better future. (Or maybe not.)
But if we look only at the continuously unfolding present, then if the US does nothing to force Israel to open Gaza’s borders to the passage of vitally needed freight, then Washington will be directly complicit in the additional harms that Gaza’s people will suffer this winter.
(Meantime, in today’s statement, Rice criticized the mandate of the Goldstone Commission, and she criticized its policy recommendations. But I don’t think she questioned any of its actual findings. And those findings surely stand as the best draft we have to date of the historical record of who did what to whom in the Israel-Palestine theater in the time of the 2008-09 Gaza War. Even just as a record, the work of the Commission will be invaluable– and it can provide the basis for all kinds of court cases in the future.)

Thakur on the ICC, Darfur, and Bashir

When I blogged about the ICC’s missteps on Darfur yesterday I had not yet seen this excellently argued recent article by Ramesh Thakur.
Thakur, who for a long time was Vice-rector of the U.N. University, based in Tokyo, argued centrally there that:

    a more troubling issue is how an initiative of international criminal justice meant to protect vulnerable people from brutal national rulers has managed to be subverted into an instrument of power against vulnerable countries. A court meant to embody and pursue universal justice is in practice reduced to imposing selective justice of the West against the rest.

He writes,

    no senior U.S. general or Cabinet member is likely to face international criminal prosecution for Abu Ghraib, Guantanamo or other abuses.
    Does the world not deserve an honest accounting of what happened in Fallujah in April 2004, how many were killed, and whether any criminality was involved, including the use of chemical weapons prohibited under international humanitarian law?
    Nuremberg was supposedly about who started the war, not who lost. Same for the Tokyo tribunal. We know who started the Iraq War; and we know they have not been called to account for the crime.
    Africans are being held to international accountability for domestic acts of war crimes, but Westerners seem to escape international judgment. What of the war-crime charges by Hamas and some Israelis in Gaza earlier this year?
    Unlike Bashir or any other Africans in the dock, whose alleged atrocities were limited to national jurisdictions, the Bush administration asserted and exercised the right to kidnap suspected enemies in the war on terror anywhere in the world and take them anywhere else, including countries known to torture suspects. Many Western allies colluded in this distasteful practice of “rendition.” No Westerner has faced criminal trial for it.

And he argues, as I did in my blog post yesterday, that the ICC should be mothballed until it can become a more robust instrument of a much more equitable international system.