The New Dark Age

2 October, 2009 — Strategic Culture Foundation

In September the International Criminal Court (ICC) officially reported it had started to preliminarily analyse information about likely inquiries into crimes by the US servicemen in Afghanistan and by Israeli troops in Gaza. The statements stand in stark contrast to the Court’s hitherto pursued policy and therefore merit special attention.

The ICC has been quite active up to date. It has dealt with situations around five countries; it accused one incumbent president (Sudan) and another vice-president (Central African Republic). However, up until now the ICC has had the audacity to deal exclusively with African countries: besides the two we have just named, there have also been the Democratic Republic of the Congo, Côte d’Ivoire and Uganda. The International Criminal Court has been unperturbed by the crimes by the US, the UK and other western nations in Iraq and Afghanistan, by Israeli crimes, by Albanians’ criminal wrongdoing in Kosovo. Will the ICC indeed have the guts for the first time in world history to launch an investigation into felonies by the main aggressors and war criminals of the present-day world?

In all fairness, international courts have repeatedly brought actions against the United States, but none of these has been a criminal court that would examine a criminal case against specific persons. There’s only one attempt on record, and that was a sham one, by a current International criminal court to bring legal action against the United States and its NATO allies. Back in 1999 the International Tribunal for the former Yugoslavia bowed to pressure from the international community and analysed information about NATO troop war crimes in the course of the Alliance’s aggression against the Federal Republic of Yugoslavia. But the examination ended in the conclusion that it was “inexpedient” to launch an inquiry.

Mind you, the prosecutors refused even to pursue investigation, to say nothing of bringing charges against them. This was possible, of course, because the International Tribunal for the former Yugoslavia was fully dependent on NATO both in terms of funding and the line-up. It’s for some reason that during NATO’s aggression against Yugoslavia the alliance’s press secretary Jamie Shea put it bluntly that NATO was the Tribunal’s friend; NATO had paid for Tribunal proceedings and was its main financier.

But the ICC wish only to pursue an investigation into the US troops’ crimes in Afghanistan or Israeli troops’ wrongdoing in Gaza is not enough. There are some legal barriers in the way. The United States is not a party to the ICC statute, so the ICC cannot exercise jurisdiction on crimes perpetrated by specific US citizens. But since Kabul has signed the statute in question, it is possible to file lawsuits against American nationals in Afghanistan. But Kabul has, besides, signed a special agreement with the United States on the US servicemen’s immunity from ICC jurisdiction. So, the situation is indeed tangled.

It is clear that Afghanistan’s two opposing agreements may give rise to collisions that will defy solution. Kabul will inevitably have to sacrifice one of the two, and a lot will depend on the Afghan leadership. For example, to exercise ICC jurisdiction on cases involving the US military, the ICC Office of the Prosecutor can file lawsuits and such suits can also be filed and handed over to the ICC by the Afghan authorities. In this context it stands to reason to ask if it was by accident that the likely inquiry was reported amid the tense atmosphere of vote-counting in the “democratic” presidential election in the Asian country.

Nor is it an easy matter to inquire into crimes by the Israeli military. Just as the United States, Israel has chosen not to sign the ICC statute, while Palestine remains unrecognized as an independent state by many countries. But the ICC Prosecutor is empowered to rule (if they pluck up courage, that is) that Palestine is a state and to exercise ICC jurisdiction on crimes perpetrated by Israelis in Gaza, whether Tel Aviv recognizes the ICC and international law or not.

Since the ICC was set up in July 2002, it has received over 8,000 applications from 130 countries, mostly from the United States, the UK, Germany, France and Russia. Applications from Venezuela and Iraq have been officially dismissed. The dismissals were well-founded in case of Venezuela, since the applicants complained about demonstration dispersals, which does not come under the jurisdiction of the ICC, but the dismissal of Iraqis’ complaints is questionable. It stands to reason to claim that complaints concerning the legality of the US-led coalition’s war against Iraq cannot be accepted as yet, since the parties to the ICC statute have not yet agreed the definition of aggression. But the International Criminal Court has jurisdiction over crimes committed during an armed conflict, whether legal or illegal. In this context it is hard to understand why the ICC Prosecutor remained indifferent to mass crimes against civilians by the British military, for example.

In his just published draft of the new ICC Prosecutor’s Investigation Strategy Luis Moreno Ocampo names 10 situations, of which four are still confidential, while the other six comprise the situations in Colombia, Côte d’Ivoire, Kenya, Georgia, Palestine and Afghanistan. It’s hard to believe that Afghanistan will become the first example of the US military appearing before the International Criminal Court. ICC Prosecutor Moreno Ocampo’s moves are more suggestive of an attempt to unilaterally exonerate himself in advance of his investigative policy. What is more probable as regards the Afghanistan-related investigation is that legal action will be brought against Taliban forces for attacking civilians (which western nongovernmental organizations are currently energetically recording), and also against some top-echelon officials in Kabul. Even if one or two US servicemen are simultaneously accused in this context (for example, of torture in Bagram), the cases will be eventually soft-pedalled (after all, the tactical pattern was drilled at the Tribunal for the former Yugoslavia) and the accused could even be triumphantly acquitted.

Speaking of some new real cases the ICC may file, these will most likely again have to do with Africa. Following Kenya’s mass unrest in 2007 over vote-rigging in presidential elections there, the winning president is about to apply to the ICC to accuse the losers who will not put up with arbitrary rule in the country. The Kenyan Parliament was made to face the choice: either to adopt a law on setting up a special tribunal, or the Kenyan authorities would hand the case over the ICC, and the court would then have to examine the case.

The situation is largely suggestive of all other ICC Africa-related cases, that is, the African governments use the court in question to suppress the opposition at home. The former UN Secretary-General Kofi Annan has set the deadline for a “voluntary” setting up of the tribunal, namely until the end of August 2009. It is October now, but the tribunal is nowhere to be seen. But the ICC Prosecutor has a sealed enveloped with the names of suspects on his table, the envelope that he has got from Kofi Annan. So, one may rest assured that the International Criminal Tribunal will, for the time being at least, remain daring as regards Africa only.