War crimes: prosecutions blocked by protectors

May 13, 2014
Sarah Benton

From an uncertain beginning, the Rome Statute, setting up the International Criminal Court, has gathered the adherence of most countries. Russia, the USA, China, Korea and Israel are notable exceptions. All are countries which present themselves as not being bound by international law and all have reason to fear prosecution (as the UK has just found). The ICC is not just for black Africans. Here are 1) The Cable, Foreign Policy on the USA’s dilemma and 2) interview with former ICC chief prosecutor on, inter alia,  Palestine/ Israel and the ICC. Plus Notes and links on the ICC and ratifying parties.

U.N. high commissioner for human rights, South African lawyer Navi Pillay. She has repeatedly called for the UNSC to invite the ICC prosecutor to assess charging President Assad with war crimes. Her appointment was approved by the General Assembly on 28 July 2008. She took up the post on 1 September 2008. Her mandate has been renewed for two years beginning on 1 September 2012.

Exclusive: US to support ICC war crimes prosecution in Syria

By Colum Lynch, The Cable / Foreign Policy
May 07, 2014

Barack Obama’s administration has decided to back a push to have the International Criminal Court (ICC) open a formal, United Nations-sanctioned investigation into potential Syrian war crimes, embracing a strategy that it once dismissed as wholly inadequate in confronting mass atrocities in Syria, according to U.N.-based officials.

The United States this week gave the green light to France — which has championed the effort — to distribute the text of a draft Security Council resolution authorizing an ICC investigation into alleged Syrian atrocities to other members of the 15-nation council for more formal negotiations, according to diplomats familiar with the matter.

The United States indicated that it could support the text after seeking assurances that the ICC prosecutor, based in The Hague, would have no authority to investigate any possible war crimes by Israel, which has occupied the Golan Heights since the Six-Day War in 1967, according to those diplomats. The draft will be shared this week with the U.N.’s five veto-wielding powers, including China and Russia, before being distributed to all members of the 15-nation council as early as next week.

The resolution’s passage is anything but ensured. The new diplomatic push sets the stage for a big-power confrontation with Syria’s closest ally, Russia. Moscow has previously expressed its skepticism over the virtue of an ICC prosecution of alleged Syrian war criminals. U.N. diplomats say they are under no illusion that Russia can be easily dissuaded from vetoing the resolution. Still, proponents of the measure say lobbying the Russians is worth a try, given that Russia has previously yielded to international pressure to rein in its Syrian allies.

“Russian objections to an ICC referral shouldn’t be seen as irreversible,” said Balkees Jarrah, international justice counsel at Human Rights Watch. “As the situation on the ground shifts in Syria, we have seen changes in Russia’s position on chemical weapons and humanitarian access.… Russia would be hard-pressed to explain why it wouldn’t want the ICC to go after atrocities by government forces and others alike since the court would examine crimes by all sides. So it would be a mistake to preclude circumstances in which the Russians would allow the council to give the court a mandate in Syria.”

The Hague-based court is currently unable to prosecute crimes committed in Syria because Bashar al-Assad’s government never joined the treaty body, known as the Rome Statute, establishing the global court. Under the terms of the treaty, only the U.N. Security Council has the power to invite the prosecutor to investigate crimes that occur beyond the reach of the court’s jurisdiction. So far, the 15-nation council has approved previous investigations only in Libya and in Darfur, Sudan. Russia voted in favor of both investigations. The United States and China abstained on the Darfur resolution, but they both voted in favor of the ICC investigation in Libya.

Current chief prosecutor for the ICC Fatou Bensouda. Photo by AFP / Getty images.

If adopted, the latest resolution would grant the ICC prosecutor, Fatou Bensouda, the power to conduct an investigation into alleged war crimes, crimes against humanity, and other criminal acts allegedly committed by Syrian authorities and Syrian rebel groups. Funding for the investigation would be raised on a voluntary basis. Like previous resolutions, the draft would exclude the prosecution of non-Syrian nationals from countries, like Israel and the United States, that are not members of the court.

The United States and its European and Arab partners are discussing a second draft resolution that would demand that the Syrian army crack open its borders, particularly with Turkey, to accelerate the delivery of assistance to rebel-controlled communities that have received only a tiny fraction of international aid entering the country. It remains unclear which resolution they would put for a vote first.

The efforts highlight how the White House is grasping for ways to handle the Syrian crisis as U.S.- and Russian-sponsored political talks have stalled, the killing continues unabated, and President Assad is preparing plans for his re-election.

In September 2013, when the Obama administration was planning to strike Syria in response to its alleged use of chemical weapons, Samantha Power, the U.S. ambassador to the United Nations, questioned the efficacy of a range of diplomatic measures — including condemnations, sanctions, and a Security Council referral to the ICC to prosecute alleged crimes — to halt Syria’s assault on civilians. “What could the International Criminal Court really do, even if Russia or China were to allow a referral?” she said in a September 2013 speech before the Center for American Progress. “Would a drawn-out legal process really affect the immediate calculus of Assad and those who ordered chemical weapons attacks?”

Power made the remarks to help defend the administration’s refusal to use U.S. military force against Assad’s forces to stop their use of chemical weapons. The United States ultimately decided to hold its fire in exchange for a commitment by Syria to eliminate its previously secret chemical weapons program.

Still, the destruction of Syria’s chemical weapons has done little to stem the killing of civilians through conventional means. The three-year-long civil war has left well over 100,000 dead and placed more than 9 million in need of humanitarian handouts. More than 240,000 people live under siege conditions, most of them cut off by Syrian government forces from humanitarian assistance for more than a year. Civilians have been starved, tortured, and subjected to relentless attacks by chemical weapons, jet fighters, barrel bombs, and suicide bombers.
This past February, the U.N. Security Council threatened to undertake unspecified “further steps” against Syria if it failed to improve conditions for civilians and provide unfettered access to humanitarian aid workers. But U.N. Secretary-General Ban Ki-moon subsequently issued a statement saying that “none of the parties to the conflict have adhered to the demands of the council. Civilians are not being protected. The security situation is deteriorating and humanitarian access to those most in need is not improving.”

There has been mounting international pressure for a prosecution of perpetrators of crimes in Syria. In January 2013, Switzerland organized an effort by nearly 60 countries to persuade the Security Council to authorize an ICC investigation. This April, the U.N. high commissioner for human rights, Navi Pillay, issued the latest of repeated calls for the U.N. Security Council to invite the ICC prosecutor to look into crimes [committed in Syria].

David Kaye, a professor of international law at the University of California, Irvine, who previously worked on ICC policy at the State Department, said that it might be easy to dismiss the council action as an empty gesture that makes Washington and Paris “feel morally good” about themselves knowing full well that Russia will block it. But he said it is time for the United States to stop using the threat of a Russian veto as an excuse for inaction in the ICC.

“I don’t think it’s on anybody’s mind in Syria [that] there is a risk that they will be held accountable for crimes,” he said. But he said American support for a prosecution might grab the attention of those carrying out the killing. “Once the United States starts to get involved, I think it changes the conversation.”

That kind of involvement would mark a significant shift for Washington, which has never ratified the Rome Statute establishing the world’s first international criminal court and which has long had a complicated relationship with the institution.

Then-President Bill Clinton signed the treaty during his final days in office, but only after negotiating key provisions aimed at shielding American nationals from possible prosecution. President George W. Bush initially moved aggressively to undermine the court’s authority, authorizing a senior State Department official, John Bolton, to issue a letter to the United Nations repudiating Clinton’s signature. Bush’s U.N. envoy, John Negroponte, threatened to shut down U.N. peacekeeping missions unless the U.N. Security Council offered a blanket exemption for American nationals from prosecution by the ICC.

The Bush administration ultimately offered grudging support to the court by withholding its veto of a 2005 Security Council resolution triggering an ICC investigation into crimes in Darfur that ultimately led to the issuance of arrest warrants for Sudanese President Omar Hassan al-Bashir and other senior officials accused of genocide and other war crimes.

The Obama administration has been more supportive of the court, voting in favor of a 2011 resolution launching an investigation into war crimes by members of the regime of Libyan leader Muammar al-Qaddafi. But Washington’s support for that prosecution has softened since the overthrow of the regime and its replacement by a pro-Western government.

Former ICC chief prosecutor Luis Moreno-Ocampo

Former ICC prosecutor says Palestinians can join court

In an interview with Al-Monitor, Luis Moreno-Ocampo, former chief prosecutor for the International Criminal Court, says that Palestinian membership in the court is possible, but could also open up Palestinian authorities to prosecution.

By Akiva Eldar, trans. Ruti Sinai, Al Monitor / Israel Pulse
May 12, 2014

Seventeen human rights organizations, among them Amnesty International and Human Rights Watch, on May 8 called for the president of the Palestinian Authority, Mahmoud Abbas, to apply on behalf of Palestine to join the International Criminal Court (ICC).

Coincidentally, the Hebrew University was at the same time hosting Luis Moreno-Ocampo, who until two years ago had served as the court’s chief prosecutor. Moreno-Ocampo was invited to Israel to speak at the Fried-Gal Transitional Justice Initiative, a program that seeks to introduce the process of transitional justice to future law students and leaders of Israel. That same week, on May 9, Israeli author Amos Oz stirred up a storm when he suggested that instead of calling Jews who harass the Arab minority “hilltop youth,” and their acts of vandalism “price tag,” the perpetrators should be called “Hebrew neo-Nazis.”

Three events — the push for Palestine to join the ICC, the wave of hate crimes against non-Jews and the international coverage of the impending visit of Pope Francis to Israel and the occupied territories May 24-26 — are causing sleepless nights for the heads of the Israeli security and foreign services. The Jewish zealots do not hesitate to hurt members of the Christian clergy, to desecrate monasteries and to blaspheme the name of Jesus.

Moreno-Ocampo, in an interview he granted Al-Monitor on May 9, stressed that recognition of Palestine by the UN General Assembly as a non-member observer state had changed the legal situation in the region. “In the past, the Palestinians asked to join the International Criminal Court, but I had no authority to determine whether they are, in fact, a state,” explained the jurist who became the ICC’s first prosecutor, a position he held for nine years. “Today they are recognized and can choose to turn to the court.”

A special chapter is reserved for Moreno-Ocampo in the story of the political-legal change taking place in this era, during which the world is moving from the nation-state model solely to include a global system of laws and administration. Moreno-Ocampo was among those who gradually turned the ICC into an instrument that terrorizes tyrants, rebels, occupiers and war criminals.

Moreno-Ocampo’s personal history is intertwined with that of his homeland, Argentina. In 1985, two years after the end of the horrifying military dictatorship, Moreno-Ocampo served as state prosecutor against the generals, including the former president, in what came to be known as the junta trial. Tens of thousands of people were disappeared, murdered and tortured during the years of Argentina’s Dirty War, and the prosecution team was determined to seek justice and to express the voice of the victims. Moreno-Ocampo is careful to stress that the history of the international court started beforehand, on Nov. 20, 1945. The title he chose for his lecture in Jerusalem was “From Nuremberg to The Hague.”

“That’s where it began,” he reminded his listeners. “The precedent of forming an international jury was established at Nuremberg. That’s when the foundations were laid down for an international tribunal that would try people suspected of genocide, crimes against humanity and war crimes.” To illustrate the continuity of this legacy, Moreno-Ocampo invited Benjamin Ferencz, the prosecutor of the Nuremberg trials, to the first trial he conducted in 2003 at the ICC, against the Congolese militia leader Thomas Lubanga (who was convicted some two years ago of forcibly recruiting children and using girls as sex slaves). He placed a robe over Ferencz’s shoulders and asked him to take part in reading the summations.

Moreno-Ocampo hopes, however, that unlike the Nuremberg tribunal, as well as Argentina’s, the contribution of today’s court will not end with the price exacted from those who committed crimes and lost power, but will also succeed in preventing additional crimes.

Al-Monitor: How will a Palestinian request to join the criminal court influence the situation in the region?

Moreno-Ocampo: The presence of the ICC in the region will encourage the sides to think creatively about how to solve their problems in their bilateral relations. They can both do a lot about this. The conflict keeps resulting in many casualties in Israel and Palestine. Joining the ICC might prevent crimes and open up new ways of thinking about the problem. The Palestinians understand that joining the ICC will expose them as well to prosecutions. If this, then, prevents the firing of rockets from Gaza, Israel’s citizens will benefit, will they not?

Can the fact that Israel is concerned about the Palestinians joining the ICC point to a troubled conscience?

Yes, it probably does. The question is what Israel should do now that the Palestinians are authorized to join the court. If it doesn’t want them to do so, it has to think what it can offer them in order to prevent such a move. If the court’s presence can constitute a threat that will prevent future crimes, this will be an excellent result. As I said, this goes for the Palestinians, as well.

How does the court wield influence if it does not have any enforcement mechanisms of its own?

The police forces of the member states enforce the rulings of the court. That means that whoever is convicted cannot travel around Europe, Canada or Australia [unlike the United States, Russia, China and additional states that have not signed the Rome Statute, the document that serves as the source of the ICC’s authority]. Zero impunity is an essential matter for the prevention of future crimes.

The idea is to ensure that in an effort to prevent crimes, justice is carried out across borders, not only in the state where the crimes are committed. When I joined the ICC, there were 21 member states, and today there are 122. We keep expanding. It’s only a matter of time. What we need are additional tools to prevent violence and to control it.

And finally, in your lectures in Israel you asked students what they would do if they were in your shoes as a prosecutor. Permit me to ask you, if you were the prime minister of Israel, would you join the ICC?

First of all, you have to solve the problem between yourselves and the Palestinians. Only then can you join the ICC, in order to ensure that you don’t slip back into violence. It’s hard and complex to join the ICC as long as you are in the throes of a conflict.

Notes and links

The States Parties to the Rome Statute, ICC.
Afghanistan, Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Austria
Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi
Cambodia, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Comoros, Congo, Cook Islands, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Czech Republic
Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic
Ecuador, Estonia
Fiji, Finland, France
Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana
Honduras, Hungary
Iceland, Ireland, Italy
Japan, Jordan
Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg
Madagascar, Malawi, Maldives, Mali, Malta, Marshall Islands, Mauritius, Mexico, Mongolia, Montenegro
Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway
Panama, Paraguay, Peru, Philippines, Poland, Portugal
Republic of Korea, Republic of Moldova, Romania
Saint Kitts and Nevis, Saint Lucia; Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Suriname, Sweden, Switzerland
Tajikistan, The Former Yugoslav Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Tunisia
Uganda. United Kingdom, United Republic of Tanzania, Uruguay
Vanuatu, Venezuela

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