On the Illegitimacy of the Bush War on Iraq

The following document is from http://www.sundaytimes.lk/020512/columns/ameen.html

"There can be no global justice unless the worst of crimes - crimes against humanity - aresubjected to the law. In this age more than ever we recognize that the crime of genocide against one people truly is an assault on us all - a crime against humanity. The establishment of an ICC will ensure that humanity's response will be swift and will be just" - UN Secretary General Kofi Annan.

The United States on Monday dealt a body blow to world justice when it officially withdrew from the Rome treaty establishing an international criminal court that will start work from July 1.

The International Criminal Court was seen as a progressive step by 139 countries when the treaty came up for signature in 2000. The United States was among them and its then President, Bill Clinton, signed the treaty but said under apparent pressure from Pentagon and Republican hardliners that the document was flawed and he would not submit it for ratification.

Except Bangladesh, none of the South Asian nations signed the treaty, probably because they perceived the treaty provisions as detrimental towards their national interest or probably they feared the proposed piece of international law like a robber or murderer feared the domestic criminal law.

South Asian governments and rebel groups that challenge state sovereignty have come under heavy stricture from international human rights groups for excesses committed in dealing with domestic conflicts. Some of these excesses could qualify as war crimes. So their unwillingness to sign the treaty is quite understandable in terms of self-interest.

The United States' withdrawal has grouped it together with a bunch of Third World countries, which have much to hide. But some of those countries that President George Bush branded as 'rogue states' have signed the treaty.

Besides the US withdrawal and certain other states' failure to sign or ratify the Rome treaty, the document itself is widely regarded as one of the most enlightened pieces of international legislation since the establishment of the United Nations in 1946. Though, the United States and those countries that fear the treaty may have reservations or may have seen flaws in the treaty, to an idealist who dreams of global justice, the treaty is certainly a giant stride. For, the core of the treaty is human freedom, human rights and human dignity. If the court, which will be set up in the Hague, is allowed to perform its statutory role, conflicts around the world will take a human shape. The brute will be thrown out of wars.

"Impunity has been dealt a decisive blow," proclaimed UN Secretary General Kofi Annan at the ceremony officially launching the ICC. But the US move to abandon the treaty is seen as underscoring the impunity with which the United States pursues its strategic agenda around the globe.

With the United States prosecuting a global war against terrorism - which many see as a euphemism for its global domination and resource exploitation - the US withdrawal was predictable. In simple terms, the United States justifies its opposition to the ICC on the basis that it does not want American service personnel, who are now engaged in the so-called anti-terror war in countries ranging from Afghanistan to Kazakhstan and the Philippines, to be tried for war crimes and imprisoned by a world court.

"The ICC purports to have jurisdiction over certain crimes committed in the territory of a state party, including by nationals of a non-party. Thus the court would have jurisdiction for enumerated crimes alleged against US nationals, including US service members, in the territory of a party, even though the US is not a party," the US State Department said in its observation.

Going by this assessment, one could assume that the United States - a country that preaches human rights and democracy and brags about its commitment to justice and peace - is not as clean as the image it projects through manipulated media.
Take for instance, allegations levelled at the United States during the prison revolt in Mazar-e-Sharif in Afghanistan. It is alleged US troops recommended and supervised the slaughter of hundreds of Taliban prisoners in November last year in a war crime that would certainly qualify as a prosecutable atrocity. Some human rights activists are of the view that the manner in which Washington imprisons Taliban and Al Qaeda suspects in Guantanamo Bay in Cuba might also qualify to be a war crime. Departed souls of thousands of Afghan civilians, whose deaths the hawks in the Bush administration callously referred to as 'collateral damage', also will be haunting the proposed court though it will have no retrospective jurisdiction. These souls will be joined by those from Korea, Vietnam, Libya, Iraq and scores of other countries.

Thus it appears that the new judicial body, endowed with powers to imprison upto 30 years those who are found guilty, is causing more tremors in the United States than any other country. If the US cupboard has no skeletons, why should US resist the new court and why did Henry Kissinger flee Paris last year in the wake of a lawsuit against him over alleged war crimes in Vietnam?

Besides the fear of being prosecuted, the US decision also smacks of global arrogance, which is more evident during Republican presidencies. In 1984, the International Court of Justice (ICJ) found the United States guilty of a crime in mining Nicaragua's harbour, but the Republican administration of Ronald Reagan refused to honour the verdict, taking cover behind treaties governing disputes in the American region and undermining the authority of the world court.

However, in the late 1980s, both the United States and the Soviet Union gave a common pledge to respect the rulings of the ICJ. In contrast to the Nicaragua episode, the Clinton administration was in the forefront of the setting up of two international tribunals to deal with war crimes committed in Yugoslavia and Rwanda.
But when there were positive moves towards the creation of a world criminal court, the Clinton administration, which initially backed it, decided to play it by ear in the face of opposition from Pentagon hawks and Republican legislators.

Things began to change rapidly after Bush took over, especially in the aftermath of September 11. To prepare the ground for its announcement on Monday, the Bush administration took calculated steps. First it distanced itself from the war crimes tribunals on Yugoslavia and Rwanda, accusing the courts of mismanagement and abuse.

The US criticism of the courts prompted the 43-nation Council of Europe to pass a resolution describing it as an interference in and an undue political pressure on the international judicial process. Then came the American Servicemembers' Protection Bill. The Bill sponsored by Senator Jesse Helms and passed by an overwhelming majority of the US Senate, barred all cooperation with the ICC. A Congress joint committee, however, killed the bill in favour of a much-streamlined amendment barring the use of US funds for the ICC's creation.

To circumvent prosecution provisions in the ICC Treaty, Washington is reviewing agreements governing the deployment of the US military in more than 100 countries. This would mean that the United States would obtain assurance from a country, say Afghanistan, that the host country would not invoke ICC's jurisdiction to try US military personnel for their war excesses.

But critics say Washington need not fear the treaty because the court's prosecutors will act only with the approval of the UN Security Council where the United States along with Russia, Britain, France and China holds veto power to torpedo any anti-US move or a move against any of its allies, especially Israel whose action in the occupied Palestine will automatically trigger ICC jurisdiction. These critics claim that the treaty is basically designed to prosecute people like Saddam Hussein or Mullah Omar.

The bottomline is that as long as the UN structure is democratically flawed - meaning five veto-wielding nations holding the rest of the world to political ransom - the ICC Treaty could be powerless against the powerful and there will be double standards in global justice.

Despite the many flaws of the UN system, it is better than a world order without the UN. Similarly, a world with a flawed international criminal court, would be better than a world with no international criminal court. This seems to be the reason behind UN Secretary General Kofi Annan's optimism. But as for George Bush's America, the blindfold over the statue of justice - symbolic of the principle of looking at what is right rather than who is right - may now be bathed in tears.

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