WATERLOO, Ontario — Since the end of World War II, America, Britain and Israel have been among the countries most heavily involved in war and armed conflict. Don’t expect to see any of their political or military leaders in an international criminal dock anytime soon.
The International Criminal Court, in operation since 2002, has issued four indictments, all against Africans: the Central African Republic, the Democratic Republic of the Congo, Uganda and Sudan.
Last June, Sudanese President Omar Hassan al-Bashir became the first sitting head of state to be indicted by the ICC special prosecutor on charges of war crime, crimes against humanity and genocide. On March 4 the ICC issued arrest warrants on the first two charges; that of genocide was rejected.
Many argue that this will jeopardize prospects for peace, as Bashir has less, not more, reason to give up power. Conversely, why would opposition rebel groups agree to negotiations with an alleged war criminal?
Other critics are fearful of the humanitarian consequences: Sudan expelled 13 “international” (Western) aid agencies. The most immediate victims of the ICC decision, therefore, are innocent civilians dependent on the delivery of international relief supplies.
These alleged downsides are all debatable, but 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.
This is not an isolated phenomenon. In a U.N. Security Council debate in 2006, Chinese Ambassador Liu Zhemin warned that the Outcome Document, adopted unanimously by more than 150 of government leaders meeting at the United Nations in autumn 2005, was “a very cautious representation of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” It would not be appropriate “to expand, willfully to interpret or even abuse this concept.” Yet that is exactly what French Foreign Minister Bernard Kouchner tried to do in invoking the responsibility to protect against the Myanmar government last year after Cyclone Nargis.
Similarly, the five nuclear powers under the Nonproliferation Treaty have unilaterally demanded nonproliferation by the rest instead of fulfilling their disarmament obligations under the original bargain. In some cases, NPT rights to international assistance in developing civilian nuclear capacity have also been unilaterally reinterpreted by supplier and technology denial cartels.
The ICC was opposed by the United States for many reasons, some more honorable than others. Washington vetoed a routine extension of the U.N.’s peacekeeping mission in Bosnia in 2002 because it couldn’t get the ICC to grant blanket immunity from prosecution to U.S. peacekeepers.
Stung by the fierce criticism from many die-hard friends and allies, the U.S. softened its position and won a renewable 12-month exemption for the peacekeepers of all countries that had not ratified the ICC statute. This damaged the integrity of the court, treaty negotiations and the credibility of the Security Council itself.
Lloyd Axworthy, who as Canada’s foreign minister had been a powerful voice in establishing the ICC, warned in a July 17, 2002, article that “the compromise acquiesces to the Security Council’s questionable right to amend by interpretation a treaty arrived at in open discussion by representatives of more than 100 nation states in a founding convention.”
It was the searing images of U.S. soldiers abusing Iraqi prisoners at Abu Ghraib that finally put an end to the annual exemption in 2004. Yet 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.
In a surreal twist worthy of Kafka, Western governments send terror suspects to be tortured to countries that the same governments then brand as human rights abusers. Or consider the ad hoc International Criminal Tribunal for former Yugoslavia. It has tried several Serbs, but no NATO national. Might it have something to do with the tribunal’s being located in a NATO country, its budget being paid mostly by NATO countries and its reliance on NATO for collection of evidence and enforcement of warrants?
International criminal justice is a worthy goal. The ICC should be mothballed until it is robust and resilient enough to be truly universal.
China, the only developing country permanent member of the Security Council, has been shown to lack the willpower, intellectual capacity and political courage to defend developing country interests and values. India and Japan should take up the slack in international leadership in defense of weak countries in a U.N. system that has been captured increasingly by a moral majority-type West.
Ramesh Thakur is the founding director of the Balsillie School of International Affairs and a former senior U.N. official.