Cassandra Voices

Tag: Crimes Against Humanity

  • A Visit to the Hague

    Late last year HHJ Gumpert KC – one of the judges in the formidable fortress that is Woolwich Crown Court the flagship anti-terrorism court in the U.K. – kindly secured for me a visit to the ICC out of court time. The tour was given by a former member of the team he led in the Congolese prosecutions.

    The ICC issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to his abuse of child soldiers. Lubanga was sentenced to fourteen years’ imprisonment. Gumpert also successfully prosecuted Dominic Ongwen, who was sentenced to twenty-five years for myriad crimes.

    The Rome Statute, which entered into force on 1 July 2002, established the International Criminal Court, though Israel voted against it, after murmurings on the transfer of populations that is the resettlement programme. The court works on the principle of ineffectiveness, where national courts have been derelict. It lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.

    On 17 March 2023, ICC judges issued arrest warrants for Russian leader Vladimir Putin and the Presidential Commissioner for Children’s Rights in Russia for alleged child abductions in the 2022 Russian invasion of Ukraine. Putin was charged for actions against Ukraine, which although not a party to it, has accepted the authority of the court since 2014. Should Putin travel to a state party to it, local authorities can arrest him. Later in 2023, Russia’s Ministry of Internal Affairs retaliated by placing several ICC officials on its wanted list. On November 21 last year, when I was in Gompert’s court in Woolwich, warrants were formally issued for the arrest of Benjamin Netanyahu.

    It occurs to me that an informal journalistic war crimes court was initiated by Christopher Hitchen, whose book The Trial Against Henry Kissinger (2001) accused Henry Kissinger of war crimes. This led to a Parisian judge issuing an arrest warrant and Kissinger hopscotching it back to the safety of Fox News. So, Netanyahu will no doubt control his foreign trips, and Ireland is clearly out of the question. Mr Putin does not seem to need to travel to enemy states.

    The process to establish the ICC district may be “triggered” by any one of three sources: (1) a state party, (2) the Security Council, or (3) a prosecutor.

    So, there is huge independence in that there is a self-originating prosecutor jurisdiction. though he needs the approval of Pre-Trial Chamber to initiate the investigation. The factors listed in Article 53 are a reasonable basis for a prosecution. These include whether the case would be admissible, or whether there are substantial reasons to believe that an investigation would not serve the interests of justice (the latter stipulates balancing against the gravity of the crime and the interests of the victims).

    Brumandinho Dam Disaster, Brazil, 2019.

    2016 Policy Paper

    During my visit there was much talk about the Policy paper on case selection and prioritisation published in September 2016, indicating that the ICC would focus on environmental crimes when selecting cases. According to this document, the Office will consider prosecuting Rome Statute crimes that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.

    Richard A. Falk coined the phrase Ecocide as a Crime Against Humanity in 1974. In my view we should also include Economicide, when one deals with the illegal dispossession of land. What about bringing banksters or hedge fund managers (including through NAMA) to justice? And what about no longer drawing a distinction between the Kinahan gang and Goldman Sachs? Or is it time bring a case against Bill Gates or Elon Musk?

    It should be born in mind that, alas, having someone prosecuted by the ICC is a tricky exercise. The Israelis clearly breached international law when they bundled Adolf Eichmann onto a plane in Argentina in 1960. How do you get Netanyahu to court? Or Putin? Or what if one indicted Trump or Bannon? A real danger is that the present U.S. administration will directly or indirectly withdraw funding for the court, even though the U.S. is not a signatory. They might even undermine American officials for working against the interests of Israel, or any of its allies in this dangerous world.

    The core concept of Crimes Against Humanity had its first incarnation during the Nuremberg Tribunal, but its inception may derive from the discourse in Sophocles ‘Antigone’ as to whether an immoral law is a law. In that play – the Rosetta stone of modern natural law – the heroine Antigone observes to the harsh, positivist Creon, King of Thebes, who will not allow her brother, who has fought against him, to be buried with the proper rites, that natural law has been breached.

    Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who neither dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth…

    From the great Roman statesman Cicero’s perspective, an unjust law is not a law: ‘Those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but laws.’

    Most famous of all, early Christian lawyers, St Augustine of Hippo said: ‘lex iniusta non-Est lex’ – an unjust law is not a law.

    Radbruchs’s Formula

    A crucial juristic figure was the German Gustav Radbruch (1878-1949), both a law professor and a government minister during the Weimar Republic. In Radbruchs’s Formula he argued that where statute law was incompatible with positivist law to an intolerable degree, and where it negated the principle of equality, which is central to justice, it could be disregarded.

    [P]reference is given to the positive law, duly enacted and secured by state power, even where it is unjust and fails to benefit the people unless it conflicts with justice to so intolerable a level that a statute becomes in effect false law and must therefore yield to justice…where there is not even an attempt at justice. Where equality, the core of justice, is deliberately betrayed in positive law then the statute is not merely false law it lacks completely the very nature of law.

    For him justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he contended that there was a law which was above statute: ‘However one may like to describe it: the law of God, the law of nature, the law of reason.’

    It is important to note that his views were followed in various German cases after the War and was part of the discourse that led to the Nuremberg war crimes tribunal.

    Historically much later, in the 1992 cases of Strelitz, Kessler and Krenz, former East German Border Guards were convicted of offences despite section 27/2 of the East German Border Act that indicated that the protection of the border outweighed the right to life. The German Supreme Court in endorsing Radbruch indicated that:

    [A] justification available at the time of the act can be disregarded due to its violation of superior law if it shows an evident and gross violation of basic principles of justice and humanity… The contradiction of the positive law to justice must be of such unbearable proportions that the law must yield to justice as incorrect law.

    A group of Bosniaks from the Lašva Valley close by Travnik, Bosnia and Herzegovina that were forced out of their homes and villages by Croat forces in 1993. Photo: Mikhail Evstafiev.

    Ethnic Cleansing

    The Nuremberg Court and The European Convention on Human Rights were set up with the idea that the cataclysms of the past must never happen again. Sadly more have come to pass. In Bosnia we witnessed the arrival of a modern variant: ethnic cleansing. In 1992, the United Nations General Assembly deemed ethnic cleansing to be a form of genocide stating that it was:

    Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterised by a consistent pattern of gross and systematic violations of human rights…. controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide.

    In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was genocide though the Court had no authority to determine whether it amounted to war crimes and Crimes against Humanity. A kind of fore runner of the ICC though ad hoc.

    The court concluded by seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces had committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general.  They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them, solely on the basis of their identity.

    Slobodan Milosevic, the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He was charged with having committed genocide. The formal accusation accused him of planning, preparing and executing the destruction of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in named territories within Bosnia and Herzegovina.

    He died during his trial, on 11 March 2006, and no verdict was returned. Ten years later, Radovan Karadzic was found guilty of genocide in Srebrenica, war crimes and Crimes against Humanity, ten of the eleven charges in total, and sentenced to forty years’ imprisonment.

    Morality of the Law

    The natural lawyer Lon Fuller, in supporting Radbruch, argues that the German courts were correct in striking down the Nazi laws and that a legal system must have certain characteristics if it is to command the fidelity of a right-thinking person. Fuller, in The Morality of Law, (1964) argues that Nazi law did not have coherence and goodness and instances the use of retroactive legislation, such as the Rohm purge of 1934. Further, for Fuller, the Nazi laws were deeply immoral for a variety of procedural reasons. They were not published, they were vague, and they could not be interpreted in a congruent fashion.

    We are now entering such a dangerous universe. In camera, unpublished surveillance laws are violating privacy, and retroactive and overly broad legislation erode free expression. The anti-immigration hysteria and the rise of the far right may lead to de facto ethnic cleansing. The control of the world by transnational corporations has occurred through violations of privacy, data mining and economic crime.

    The real concern in northern Europe and in Brussels also is around how AI will not be controlled by a corporate economy. Why is that? Considerations of profit will ensure, as the former head of AI in Google recently argued, that within thirty years there is a ten to twenty percent chance of human liquidation. It trespasses in an unbridled way on boundaries.

    The question of compensation and reparation also arose in our discussion at the ICC, and I mentioned that the Innocence Project in all its conferences has a separate stream for the exonerated. So does the ICC. Thus, surely it is time the Irish government finally to deliver on its Magdalene Laundry promises, and compensate those disposed by banksters? Fat chance.

    The concept of obligations ergo omnes needs to be extended to new challenges. The ICC needs to be supported to extend its jurisdiction. They seem beleaguered but to quote Halldor Laxness they are at least Independent People. Independent People are important. Thus bankers were jailed in his native land Iceland when Independent People prevailed.

    Feature Image: The premises of the International Criminal Court in The Hague, Netherlands. The ICC moved into this building in December 2015.

  • War Crimes: Collective Guilt

    As events in Ukraine demonstrate, ineluctably, war diminishes our humanity, possessing men – and mostly men – of a callous disregard for life, and a capacity for often inexplicable cruelty.

    As such, the invasion of one state by another without a casus belli – as we have witnessed in Russia’s essentially unprovoked invasion of Ukraine and also with the US invasion of Iraq in 2003 and other incursions since – has long been considered an injustice: any aggressor thus bears a level of responsibility for what follows.

    This does not, however, absolve an injured party from guilt for mistreatment, or worse, of prisoners of war, or other breaches of the Geneva Convention; notoriously described as ‘quaint’ by George W. Bush’s Attorney General Alberto Gonzales, with apparently horrifying consequences.

    Sabrina Harman poses for a photo behind naked Iraqi detainees forced to form a human pyramid, while Charles Graner watches.

    A Single Murder

    In peacetime the violent ending of a single life is newsworthy, but during a military conflict the deaths of thousands are often defined as mere casualties, calculated to diminish one side or another’s capacity to wage war. A cold-blooded logic often underpins such strategic analysis.

    ‘What was a single murder’ Stefan Zweig asked of World War I, ‘within the cosmic, thousand-fold guilt, the most terrible mass destructive and mass annihilation known in history?’

    Beyond the mindless trench warfare of World War I, the twentieth century also produced the exquisite evils of World War II, when the carnage reached the civilian sphere as never before; the leading industrial nations harnessing advanced technologies to produce Concentration Camps, Gulags, carpet bombing, and of course – supposedly bringing wars between Great Powers to an end – the atomic bomb.

    In that war’s wake there emerged a new understanding of international law, previously dominated by an insistence that this should only apply between states, as opposed to allowing individual rights to be enforced against officials of an offending state in a foreign jurisdiction.

    This traditional understanding was emphasised by a British official during negotiations prior to the Treaty of Versailles after World War I: ‘The new League of Nations must not protect minorities in all countries,’ he complained, or it would have ‘the right to protect the Chinese in Liverpool, the Roman Catholics in France, the French in Canada, quite apart from the more serious problems such as the Irish.’

    According to Phillipe Sands: ‘Britain objected to any depletion of sovereignty – the right to treat others as it wished – or international oversight. It took the position even if the price was more injustice and oppression.’ [i]

    But the depravities of World War II changed the global mood, even if Hermann Goering could persuasively assert that ‘the victor will always be the judge and the vanquished the accused.’ Indeed, there is a reasonable argument that Russian, American and British officials should also have been in the dock to account for what occurred in Katyn, Hiroshima, Bengal and elsewhere.

    Nonetheless, the universal ambit of human rights was one of the great advances of the post-Second World War period, culminating in the Universal Declaration of Human Rights. In theory at least, it was no longer permissible for states to act with impunity even within their borders, as the Rule of Law gained universal jurisdiction, at least where atrocities were concerned.

    Looting of an Armenian village by the Kurds, 1898 or 1899.

    Genocide v. Crimes Against Humanity

    Thus, charges of Crimes Against Humanity and, arguably more problematically, Genocide, were laid against leading Nazi at the Nuremberg trials.

    Coincidentally, the two Polish-Jewish jurists Raphael Lemkin and Hersch Lauterpacht responsible for developing these novel concepts both studied in the University of Lwów, a Polish city between the Wars, before being annexed by the USSR at the end of World War II. Today Lviv, as it is now called, is the main city of Western Ukraine.

    Amidst accusations of war crimes, including that of Genocide, being levelled against Russia, it is worth considering important distinctions between Crimes against Humanity and Genocide.

    The author of the former concept, Hersch Lauterpacht argued that ‘The well-being of an individual is the ultimate object of international law.’ In contrast, in his 1944 book, Axis Rule in Occupied Europe Rafael Raphael Lemkin adopted an approach which aimed to protect groups, for which he invented the new crime of ‘Genocide.’

    In response, Lauterpacht worried that the protection of groups would undermine the protection of individuals. He challenged the ‘omnipotence of the state,’ suggesting atrocities against individuals should be referred to as Crimes Against Humanity, whereby no longer would officials from any state be free to treat their people with impunity.

    Lemkin also wrote of the misdemeanours of the ‘Germans’ rather than the Nazis, arguing that the ‘German people’ had ‘accepted freely’ what was planned, participating voluntarily, and profited from their implementation. This was similar to the War Guilt Clause contained in the Versailles Treaty after World War I, which was deeply resented by Germans.

    Genocide concerned acts ‘directed against individuals not in their individual capacity, but as members of national groups.’ For Lemkin Germany’s terrible acts reflected a militarism born of the innate viciousness of the German racial character. He selectively included a quotation from Field Marshall Gerd von Rundstedt who noted that one of Germany’s mistakes in 1918 was to ‘spare the civil life of the enemy countries’[ii] and that one third of the population should have been killed by organised under-feeding, but not all Germans shared this mentality.

    Collective Guilt

    The difficulty, therefore, with the crime of Genocide is that in purporting to protect one national, ethnic or religious group it often implicates another via its ruling authority; this may perpetuate racial stereotypes, such as innate viciousness, and contains a potential for indiscriminate reprisals, or even further wars.

    Under the original conception of the crime of Genocide, any Russian, even an expatriate opposed to Putin, might be held responsible for the conduct of the Russian army in Ukraine. This idea of collective guilt – a species of Original Sin attached to a national or racial group – generally based on supposedly timeless national characteristics, could also permit crippling sanctions and even bombing campaigns impacting on civilian life.

    Punishing an entire nation for the conduct of its government – even if that government is democratically elected – is therefore unjust, not least as it tends to bolster the authority of belligerent elements within a state – who may point to the aggressor posture of the opponent – diminishing the likelihood of lasting peace.

    Far less problematic is the idea of Crimes Against Humanity, which simply asserts a universal jurisdiction for atrocities committed by the officials of any state, including ‘legally’ against their own people.

    But charging Russian officials with Crimes Against Humanity might lead us to consider whether the leaders of other nations, including the US – which along with Russia (and Ukraine) is not a party to the International Criminal Court – should be similarly indicted.

    Drone Strikes

    Since the beginning of the twenty-first century the US has been waging warfare through extra-judicial assassination operations: drone strikes, aimed at suspected ‘terrorists’ living in some of the world’s most deprived and defenceless countries. As of 2021, the Bureau of Investigative Journalism claims that there have been at least 13,072 confirmed drone strikes on Afghanistan alone since 2015.

    These remote attacks represent a new phase in the cruelty of warfare, as the leading Superpower maintains a social distance from each hit. The consequences, or ‘collateral damage’ is rarely investigated by a mainstream media that now howls in anger at Russia’s excesses.

    As LSE’s Maarya Raabani puts it: ‘Buoyed by mainstream media, an alarming preponderance of metaphors and passive-voice reporting have denied any chance to hold drone atrocity perpetrators to account.’

    Moreover, ‘Drone strike casualty estimates are substituting for hard facts and information about the drone program,’ said Naureen Shah, Acting Director of the Human Rights Clinic at Columbia Law School. ‘These are good faith efforts to count civilian deaths, but it’s the U.S. government that owes the public an accounting of who is being killed, especially as it continues expanding secret drone operations in new places around the world.’

    In July 2021, U.S. President Biden announced the adoption of an ‘over the horizon’ counterterrorism strategy. According to the Brookings Institution:

    The new plan would rely on armed unmanned aerial vehicles — or drones — to respond to terrorism threats around the globe without deploying American boots on the ground. But although the strategy was designed to overhaul policies that had kept the United States embroiled in conflict for 20 years, it failed to address the unintended consequences of counterterrorism strikes, namely civilian casualties. On August 29, 2021, with most U.S. soldiers withdrawn from Afghanistan and regional bases shuttered, this challenge became clear. The U.S. military conducted a strike that killed 10 civilians, including women and children, rather than the intended target.

    TAS13: GENOA, JULY 22. Russian President Vladimir Putin (left) and US President George Bus.

    In striking unison, mainstream media in the West has reacted to the invasion of Ukraine with outrage, and conveyed statements of the President of Ukraine with uncritical approval. Russia certainly deserves opprobrium for his war of aggression against Ukraine – and its officials may be responsible for war crimes – but the failure to interrogate the actions of the US and its allies including Israel and Saudi Arabia over many years makes the self-righteousness ring hollow.

    Russia is operating in a context established by the US’s illegal invasion of Iraq in 2003 that destabilised the Middle East causing hundreds of thousands of unnecessary deaths. Putin exploited the anarchy in the international system with his invasion of Georgia in 2008, having divined that the rules of the game had changed. There is a continuum between Russia’s attacks against Georgia, the Donbass and Crimea campaign in 2014, and this latest invasion of Ukraine.

    Once Western leaders and their allies are also held accountable for their actions we may move to an environment where the Rule of Law attains a universal character; then the invasion by one state of another without a legitimate casus belli may become unthinkable.

    Unlike during the period of the USSR, Russia exerts little ‘soft’ power. Putin’s propaganda relies on the hypocrisy of the West, especially the US which continues to baulk at becoming a party to the International Criminal Court and allies with rogue actors such as Saudi Arabia and Israel. Confronting Russia should also involve Western governments pursuing morally consistent foreign policies.

    [i] Phillipe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, (Knopf, New York, 2016) p.72

    [ii] Ibid pp.82-184