war crimes

LawNews

Germany, Rwanda, Kosovo, Syria – what do these places have in common? They were and are the sites of some of the worst atrocities in our history.

On April 7, 2017 the Orange-Gasbag President of the US authorized military strikes against Syria. The attack was allegedly precipitated by the use of chemical weapons against civilians.

Though the Syrian government, led by president Bashar al-Assad, has denied responsibility for the chemical attacks, the insurgents he is fighting not only lacked the means to commit them, but the targets consisted of the rebel-held town of Khan-Sheikhan, and one of the medical clinics treating victims of the ongoing civil war.

This article is not about the US President’s hypocrisy, as he blames Obama for the situation in Syria and yet in 2013 tweeted:

It is not about the fact that the US military strike hit an almost empty airbase that had little impact on Assad’s reign of terror, or the fact that the Orange Blowhard’s administration has clearly seen the film Wag the Dog.

For those unfamiliar with the movie, it features a President on the brink of scandal whose advisors fabricate a war to win back support from the American people. With the evidence of treason against the Cheeto Administration mounting, it should be no surprise that they’ve thrown themselves into a war against a hugely unpopular world leader, especially given that said world leader is backed by Russia, the very state accused of hacking the American election. With evidence mounting that Russia was warned about the US airstrike, this move by Orange Administration is clearly just for PR purposes.

This article is about Crimes Against Humanity, Genocide, and War Crimes.

With refugees being turned away by xenophobic politicians in primarily white countries and military leaders breaking every rule in International Law, it’s high time we looked at how the world defines these crimes.

For this article, I’m going to use the Rome Statute, the treaty that established the International Criminal Court and has been in force since 2002.

The International Criminal Court, based in The Netherlands, is a permanent court that investigates and tries individuals charged with crimes against humanity. Their goal is to put an end to impunity for atrocities and acts complementary to existing criminal justice systems.

The Rome Statute, in describing the role of the International Criminal Court, provides detailed definitions of genocide, crimes against humanity and war crimes.

Genocide is defined as any of the following acts “committed with intent to destroy, in whole or in part a national, ethnic, racial, or religious group”:

  • Killing members of that group
  • Causing serious physical or mental harm to members of said group
  • “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”
  • Imposing measures to prevent births within that group
  • Forcibly transmitting the children of said group into that of another group

Crimes against humanity are defined by the Rome Statute as acts committed as part of a “widespread or systematic attack directed against any civilian population with knowledge of the attack.” That means that for an act to be considered a crime against humanity, it has to be part of a widespread deliberate attack against civilians that includes one or all of the following acts:

  • Murder
  • Extermination
  • Enslavement
  • Deportation or forcible transfer of the population
  • Imprisonment
  • Torture
  • Rape, sexual slavery, forced prostitution, forced pregnancy, or forced sterilization or any other serious sexual violence
  • “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” or other grounds
  • Enforced disappearances
  • Apartheid
  • “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

Unfortunately, the Rome Statute’s definition gender is binary, recognizing only male and female despite evidence that gender goes beyond the two.

War Crimes are defined as breaches of the 1949 Geneva Conventions, which establish a set of rules for humanitarian treatment in war. Article 8 of the Rome Statute has a sort of abridged version of the definition of war crimes, which include:

  1. Willful killing
  2. Torture or inhuman treatment, including biological experiments
  3. Willfully causing great suffering, or serious injury to body or health
  4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
  5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power
  6. Willfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial
  7. Unlawful deportation or transfer or unlawful confinement
  8. Taking of hostages

The Statute lists other offenses as war crimes, including intentionally directing attacks against civilians and civilian objects even when they’re not military objectives.

Though it goes without saying that war crimes and crimes against humanity are indeed taking place in Syria, prosecuting war crimes is always a problem. As Larry May, Professor of Philosophy and author of the book Crimes Against Humanity: A Normative Study once wrote:

“We cannot prosecute on the basis of moral outrage alone.”

It is for this reason that rules on how to prosecute atrocities were established. However, in order to successfully do so, you need a certain degree of consent from the country the crimes took place in, as state sovereignty and the right to self-determination is the rule in our international system. There are no overarching laws to force countries to hand over their war criminals if they don’t want to subject them to international justice.

The International Criminal Court can only prosecute cases committed in a state that is party to the Rome Statute since 2002. The ICC has no jurisdiction in countries like the USA, China, and Russia who chose not to ratify the treaty, undoubtedly due to concerns about their own statesmen being prosecuted.

In this international crisis we have to remember that we are citizens of the world with a responsibility to shelter and protect the victims of atrocities and punish the perpetrators. At the same time, we must do our best to respect that the people of a country have the right to determine what is best for them. Let’s hope an influential someone in the White House remembers this too.

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The hunt for evidence of the use of chemical weapons in Syria is a red herring and shouldn’t be the focus of the international community’s (minus Assad’s apologists in Moscow and Tehran) efforts to stop the Assad regime’s relentless campaign of bloodshed against its own people.

Irrespective of the good intentions of UN Secretary general Ban Ki Moon, President Obama and French Minister of Foreign Affairs Laurent Fabius, the search for proof of a likely use of sarin, nerve, or other deadly gases on a huge number of innocent civilians (between 136 to 1300) outside of the Syrian capital Damascus in a town called Ghouta, will be near impossible under the circumstances. Besides, it wouldn’t make the case against the President of Syria, Bashar (“the butcher) El Assad, and his cronies any more credible. In the minds of many international criminal law experts, that case is already open and shut.

Setting aside the question of whether Assad has violated the universal taboo among states with respect to using chemical weapons against his foes (a category that apparently includes women and children!!!!), there is already sufficient proof based of eyewitness accounts of survivors of his atrocities and enough documentation of his crimes collected by impartial international observers, since the beginning of the civil war in Syria in 2011, to indict Assad and his generals for their part in the brutality. And yes I am aware of crimes being committed by rebels forces in Syria. They too will have to be held to account for their crimes, at the end of the day.

With the chances of some sort of robust humanitarian intervention, along the lines of what NATO did to fellow glorified thug Colonel Muammer Gadhaffi, looking increasingly slim, and seemingly every military analyst in the world insisting that there are no good options in Syria, it might be time to explore alternatives to the use of force. Moving the U.S. Navy’s 6th Fleet into range for possible air strikes against the Syrian military, may have some deterrent value.

While I realize that an International Criminal Court investigation and possible future prosecution of war criminals in Syria will be at best a moral victory, at worst an empty threat and futile attempt to bring an end to daily murders, tortures and disappearances, there is something to be said for what the head of the UN High Commissioner for Human Rights Navi Pillay is suggesting about referring the case to the ICC for them to take all necessary legal measures against the Assad regime.

This will, of course, never give the murderers who rule Syria sleepless nights, but it just might shame those who, like Russia, continue to defend their legitimacy, into abandoning their allies in Syria or at least keeping their mouths shut when the matter next comes before the UN Security Council for discussion.

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People love to invoke the name of Franz Kafka for the slightest fucking absurdity in their lives. Example: I waited in line at the post office for an hour. Then I was told by the clerk that I would have to put my own envelope in the mailbox! WHAT A KAFKAESQUE TWIST OF FATE! In truth, very few situations in our humdrum daily lives would actually make good material for one of this Czech/German/Jewish writer’s novels or short stories.

Then there’s the legal ordeal of Spanish judge Baltasar Garzon, a human rights lawyer and jurist of the very first order who is currently standing trial in Spain for allegedly breaking the country’s laws. Perhaps the greatest living legal champion of justice for victims of human rights, crimes against humanity and war crimes, being accused of violating the law he was sworn to uphold and trotted out in front of his former colleagues on the bench to answer to their examinations. I absolutely think Kafka would recognize this.

First, a brief look at the event that made the man a hero to many of us advocates of international law and rocked the international community to its foundations. It may not seem this way now, but before 1998, the idea that a former dictator, let alone from another country, could be brought to justice for crimes committed by him or on his behalf by his subordinates years earlier, was laughable.

Garzon, on the basis of the increasingly accepted doctrine of universal jurisdiction, got the ball rolling with an indictment for General Augusto Pinochet, former Chilean tyrant and senator, for crimes committed during his 17 year rule as generalissimo of that country. However, due to a legal technicalities and Pinochet’s allegedly poor health, his trial before the British House of Lords was cancelled. This was a watershed moment in international law and has been cited as precedent in any number of cases involving war crimes and crimes against humanity (Charles Taylor, George W. Bush, etc.) ever since.

The current case against Garzon smacks of political vendetta. The main element of the state’s argument is that the Garzon has violated a 1977 amnesty passed by allies of the Franco regime in order to facilitate the transition to democracy and provide immunity for atrocities committed during the fascist era of the country’s history. In his defence, Garzon has raised two key points: that crimes against humanity cannot be swept under the rug by virtue of any domestic law and that, since the crimes investigated (i.e. disappeared victims of the fascists) are ongoing, they remain subject to criminal prosecutions.

Garzon has made powerful enemies over the years for his fearless willingness to prosecute criminals, regardless of their status or location. Though his targets have often included notorious right wing extremists like Pinochet, it’s worth noting his courageous attempts to bring their mortal enemies to justice as well, including the members of Al Qaeda and Basque terrorists affiliated with ETA.

While I am always in favour of national reconciliation, it should never be done at the expense of justice. How will Spain ever put the ghosts of the past to rest, if it doesn’t allow this type of investigation into historical crimes to take its course? Garzon is a hero all over world for standing up for international law and human rights, this trial is a travesty designed to besmirch the reputation of a man whose name is synonymous with integrity and the rule of law.