- Anisur Rahman* 11 March 2020
At last another tyrant is going to face trial at The International Criminal Court (ICC) on charges of carrying out genocide, mass murder and crimes against humanity upon a large ethnic group. Omar Al-Bashir, ex-dictator of Sudan who was ousted by a popular uprising in 2019 will be extradited to the Hague, the headquarter of the ICC. It has recently been promised by the present governing council of Khartoum. During Al-Bashir´s tenure around 300000 people were systematically killed in Darfur region and approximately 2.7 million people were uprooted from their homes. It is a courageous decision by the governing council of Sudan, because being a predominantly Muslim country it could dare to send its former staunch Islamic ruler to ICC to face trial for crushing a Christian dominated movement. At the same time it is a prudent decision in the sense that when the dictator became extremely unpopular and was thrown away by the people, they could take the advantage of the situation and thereby change positively the tarnished image of the country and the religion.
Al-Bashir is the latest accused in this infamous list of culprits. In the past several head of states/head of governments, army-chiefs/clan leaders faced trial on charges of war crime and crime against humanity in the ICC most of whom were found guilty, though a few were acquitted. The list includes among others: Jean Kambanda, the former PM of Rwanda, Jean Paul Akayesu, a former Mayor of Taba, Rwanda and dozens of armed miscreants for their extremely notorious role during the Rwanda massacre in which around 8 hundred thousand ethnic Tutsi people were killed by the Hutu-led government gangs. Thousands of Tutsi women were systematically raped and/or murdered. Most of the homes of the minority Tutsis were burnt down. All these heinous crimes were carried out within a span of only 3 and a half months between April and July, 1994. Only a nuclear bomb could do it faster. The special tribunal constituted for trial of the Rwanda genocide did a commendable job to bring the culprits to justice. Another tribunal created for trial of war crimes and crimes against humanity in the former Yugoslavia – shortly known as International Criminal Tribunal for the former Yugoslavia – did similar commendable job in bringing the main culprits and masterminds of that area to justice. Slobodan Milosevic, Radovan Karadzic, Patko Mladic ended up in The Hague, the Headquarter of the tribunal. Mladic, known as the butcher of Bosnia got life imprisonment and Karadzic was awarded 40 years jail term. The trial of Slobodan Milosevic, the 3rd President of the former Yugoslavia could not be concluded as he was found dead in his cell in the Netherlands while it was still in the process.
The tribunals for Rwanda and Yugoslavia are the continuation or natural follow-ups of The International Military Tribunal – commonly known as Nuremberg Tribunal – that was constituted for trial of Nazi war criminals of Germany who committed genocide and crime against humanity during the second world-war. Though a similar court was established after the 1st world-war, it was rather very ineffective. Nuremberg Tribunal set the stage for creation of such international courts. Nuremberg court was a military tribunal. But subsequent courts established later are civil in nature where both civil and uniformed criminals are being tried or have been tried. Two main Nazi criminals i.e. Adolf Hitler and Joseph Goebbels could not be tried since they committed suicide to avoid capture. Heinrich Himmler could be arrested but he also took his own life only one day after his arrest. At that time, death sentence was not prohibited internationally. So many of the indicted criminals were sentenced to death and were executed swiftly.
When the UN, particularly the General Assembly realized that it is better to have a permanent international criminal court instead of setting up particular courts for particular cases it requested the International Law Commission (ILC) to study the possibility and submit its proposals. Their proposals and suggestions led to the creation of the present day ICT which was established on 1st July, 2002 when the Rome Statute came into force though it took 3 more years to start its functions formally. It is very important to note here that some countries including the USA were opposed to the creation of the ICC. Obviously they were afraid that they might one day would be prosecuted for their crimes which they were aware of. As of November 2019 123 states have become parties to the statute of the Court. But four signatory states – The United States, Russia, Israel and Sudan have informed the UN that they no longer intend to become states parties and as such have no legal obligations arising from their signature of the Statute which virtually nullify their signatures. However, Sudan has recently informed that they will cooperate with the Court.
When one sees the continuation of this process of bringing the war criminals and perpetrators of genocides to justice one can feel a sigh of relief. But at the same time when many of the bigger fishes remain/remained untouched, the flaws of the international laws, particularly its discriminatory character/implementation become evident. Three decades ago Noam Chomsky observed that” If the Nuremberg laws were applied, then every post-war American president would have been hanged.” Chomsky examined war-crime atrocities of almost all the US presidents of that period starting right from Gen Dwight D. Eisenhower. According to him even Jimmy Carter who is well respected for his humanitarian character, cannot be spared if Nuremberg standard is strictly applied. Chomsky particularly mentioned the heinous role of John F. Kennedy, one of the most popular presidents of USA during Cuba crisis and Vietnam War. Al Bashir of Sudan cannot be pardoned for genocide and war-crime he committed in the Darfur region. But this crime seems rather minor if one compares it with the crimes The United States committed in the Vietnam War. Similarly, according to many observers Bush and Blair´s war-crimes and crimes against humanity are far more extensive than those of Milosevic and Karadzic. Milosevic gang ruined the former Yugoslavia and killed several thousand people. But Bush and company destroyed and devastated not only Iraq, but the entire region. To perpetuate their unfair and greedy oil-interest, economic imperialism and to protect the illegal activities of Israel and thereby their own interest, they have ruined the whole Middle-East. Millions of Palestinians have been driven out of their homes, thousands have been killed but not a single Israeli prime minister or general have been indicted for war crimes or crimes against humanity. It is not only the leaders of the so-called Western super powers and their cohorts elsewhere some have secured positions of impunity from such crimes but at the same time their Eastern counterparts have also attained virtual impunity. We may forget about the atrocities of Lenin, Stalin and Mao Zedong during their ”revolution periods” when millions of people lost their lives. What happened in Hungary in 50s and Czechoslovakia during 80s? No Soviet leader was indicted in any international court. Nobody dared to constitute such courts. Even the regional super powers have acquired some kind of impunity. Evidences can be found in the Indian occupied Kashmir which has become one of the biggest prisons and torcher centers of today´s world. General Yahya Khan, General Tikka Khan and the company who carried out genocide in former East Pakistan (now Bangladesh) could not be taken to any international court for trial due to the behind-the-scene understanding between some powerful countries. It symbolizes the grave shortcomings and failure of the international judicial system.
It has become evident that the trial of the war crime and crime against humanity has become very selective and discriminatory – not universal. So long the United Nations remains captive at the hands of the super powers, particularly evil veto system remains in force, it cannot be made effective and war criminals cannot be brought to justice if they enjoy the support of any of the veto power holders. Observing this unjust reality, helplessness and captivity, a group of world renowned intellectuals headed by Bertrand Russell and Jean Paul Sartre formed a tribunal popularly known Russell Tribunal. The first task of this tribunal was the trial of the culprits of Vietnam War, more specifically the trial of the United States. It was not a usual tribunal recognized by the super powers or the UN. It had no enforcing authority. But it enjoyed a moral strength and commanded ethical high ground. It aroused consciousness all over the world against war-crimes committed by the super powers. There are criticism against this tribunal. Atrocities committed by the Vietcong forces were not taken into consideration. It is a different issue. But the main significance of the Russell Tribunal lies in the fact that it is the first international tribunal which dared to proceed trials of war crimes committed by a super power and its accomplices when even the UN remained a helpless spectator. The Vietnam tribunal was consisted of 25 members including some Nobel laureates, winners of valor, internationally famous lawyers, distinguished human right activists, novelists, playwrights, university professors, newspaper editor and a former President (Lazaro Cardenas of Mexico) from 18 countries. The tribunal carried special weightage since Bertrand Russell a well-known peace activist, mathematician and philosopher acted as the honorary president of the tribunal and Jean-Paul Sartre, philosopher, a distinguished philosopher, playwright and political activist acted as executive president of it. The first session of the tribunal was held in Stockholm. A significant feature of the trial was that it accused 3 other governments viz. the government of Japan, the Philippines and Thailand and all were found guilty of complicity in the aggression committed by the United States government. They were found guilty on all 11 counts. Though the tribunal could not put any war-criminal behind the bar, it made a huge impact all over the world. Unfortunately after the death of Bertrand Russel and Jean-Paul Sartre, it could not keep the momentum intact although some subsequent Peoples Tribunal were formed including one permanent tribunal.
A praiseworthy decision has recently been taken by the Hague-based International Criminal Court that the investigations of alleged war crimes committed by the US and other parties in the Afghan conflict will go ahead. The ICC overturned an appeal to block the investigation made earlier in this regard. Hence at the moment there is no legal obstacle to examine the alleged criminal activities of the Taliban, the Afghan government and the US troops. Notwithstanding the limitations of the court, it is a bold decision. To implicate the US government for war crime by a UN sponsored international court had been unimaginable to many before it was actually done. But the irony or anti-climax has already been written by Washington. The United States, along with Russia and Israel have informed the UN that they no longer intend to become states parties and as such have no legal obligations arising from their signatures of the Statute.Hence whatever punishment/judgement is delivered they can ignore it. The Afghan government and Taliban forces might be brought to justice depending on the political developments. To avoid or ignore the punishment declared by a court constituted by the UN is not a victory rather a moral defeat. But to make the justice delivered in its true sense, all the culprits must get due punishment. It is time to form and launch an international movement like the one that Bertrand Russell and Jean Paul Sartre started a few decades ago. The permanent Peoples´ Tribunal should be rejuvenated. And above all, the UN should be restructured. The five veto power holders will not be willing to give in. It is the duty of the world intelligentsia to make it happen.
- Anisur Rahman is a senior Bangladeshi journalist now living in Sweden.