International Criminal Court. Photo Credit: justflix via Wikimedia Commons.
I am a legal practitioner in the field of international criminal law and so my perspective is one that I have come to through my experience and observations as a trial lawyer but I hope that my remarks can contribute to the discussion with respect to international criminal law and its role in the attempt to preserve world peace and the maintenance and development of world society.
I begin my remarks with this statement I made to Radio Netherlands in July 2011 since it encapsulates my views;
“The Nuremberg Trials of 1946 advanced international law in a fundamental way. For the first time in history the victims of aggressive war brought their attackers to justice and aggression was defined as the ultimate war crime from which all others flow. Today, international war crimes trials serve as tools for the aggressor to persecute the victims of their aggression. International law has turned full circle from justice to oppression, from justice to revenge.
What can better illustrate this than the one-sided justice dispensed at the ad hoc tribunals, the ICTY and ICTR, where the victims of western aggression are accused of the grossest slanders and crimes in order to obscure the real facts of those wars under a cloud of darkness and confusion. What can better illustrate this than the statement by the judges of the ICTR in the case of General Ndindiliyimana, in its judgement in the Military II case, just released, at paragraph 2191, that “The Defence submits that the indictment and arrest ‘were motivated by political reasons.’ The Chamber recalls that before this Chamber, the Defence stated that the prosecution made every effort to encourage Ndindiliyimana to testify against Colonel Bagasora, but Ndindiliyimana refused. The Prosecution did not deny this. Following his initial refusal, the Prosecution produced a far-reaching indictment charging Ndindiliyimana with a number of crimes….Most of those charges were eventually dropped.”
As the judges of the ICTR revealed that the court’s prosecutor indicted people for political reasons, the ICTY demanded that Serbia hand over General Mladic for allegedly engaging in a “joint criminal enterprise” to kill Croats and Bosnian Moslems. General Mladic maintains that he defended Serbs from the criminal actions of the Croat and Bosnian Moslem forces attacking his peoples, for which there is abundant evidence. Yet the victim once again is the accused and the witnesses brought against him are from the party of the aggressor while the doctrine of “joint criminal enterprise” is an American invention unknown to the law.
Now we have the absurdity of the International Criminal Court issuing criminal indictments against various Africans whose common connection is to be in the way of western interests in Africa. The latest indictment against Colonel Ghaddafi, made because his country resists the aggression and war crimes of the USA and its satellites in Europe and Canada shows, even to the blind, that control of the ICC has been seized by the USA, even as that country refuses to be subject to its jurisdiction.
General Mladic would have good reason to tell the ICTY judges that since they are a proxy for the Security Council, he wants to be tried by the Security Council itself, and then he could see who he was really up against and why. Colonel Gaddafi would have the same right to demand to be brought face to face with his real accusers in the Security Council so he could reveal to the world their true interests. But this right to face one’s accuser, this right to honesty, will not be allowed. Instead they are faced with a theatre troop acting out a macabre play, a show for the public.
Indeed, the entire structure of “international justice” since 1946 has become so corrupted that it is difficult to see how it can be transformed into a vehicle to stop aggression as it was intended, instead of a propaganda tool justifying it. The rot has spread everywhere.”
Since that statement was made Muammar Ghaddafi was murdered by NATO forces, Libya destroyed in a flagrant act of aggression and General Mladic convicted by a NATO controlled tribunal based on “evidence” supplied by NATO experts and corrupted witnesses with an axe to grind and judges who ignored the evidence of the defence. One needs only read the judgements in his case, and that of Dr. Karadzic, and all the other accused before the ICTY and ICTR, to understand that those trials were rigged. Indeed, the public suicide of Croat general, Slobodan Praljak, the day he was sentenced by the ICTY judges in 2017, was a heavy blow to the carefully managed reputation of the ICTY in the west, since it is assumed by our courts that a dying man’s statement is considered truthful. And what was his statement? “Slobodan Praljak is not a war criminal. I am rejecting the court ruling.”
The history of international criminal law is a long one with many advances and setbacks. St. Augustine in the 4th century and Thomas Aquinas a thousand years later spoke of just and unjust wars, but the ancient debate about whether a war was unjust and to be condemned, or was just and to be approved, slipped away in the 16th century as the ability to discriminate between just and unjust wars became more difficult and as nations waged wars on pretexts claimed to be just or in which all parties to the war claimed to be engaged in just actions. The exercise of identifying acceptable reasons for going to war was abandoned and replaced by efforts to regulate the manner in which war was conducted and its effects.
Indeed, as World War I began, war was seen as a valid instrument of foreign policy, or as Von Clausewitz stated in his famous book, On War,
“war should never be thought of as autonomous but always as an instrument of policy,” and, “We see therefore that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means.”[1]
The effort to evaluate the morality or justice of a war transformed into the view that to do so was too difficult and efforts were instead directed at “humanising” the means and methods of warfare which gave rise to the fields of international humanitarian law, the law of armed conflict and attempts to codify, through international conventions and treaties, agreed upon limitations on the methods that can be used in war, the treatment of civilians, prisoners of war, and so on, which culminated in the debates at the peace conferences held in The Hague in 1899 and 1907. Various protocols were signed at the 1899 conference codifying and governing different aspects of the conduct of war. To address issues that had not yet arisen, new methods of war, new weapons then unforeseen, an important clause called the Martens Clause, after the Russian delegate who proposed it, was added stating that customary law would fill any lacunae in the agreed to protocols. It states,
“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”
The clause appears in the preamble to both the 1899 and 1907 Hague Conventions, in a different form in the 1949 Geneva Convention and the 1977 Geneva Conventions and is important because it makes reference to the legal and moral bases of humanitarian obligations during war and the idea of natural law, incorporates customary law, that is law not included in any treaty or international convention into codified law and implies a role for tribunals to enforce the principles of international law and assigning responsibility for violations.
The 1949 Geneva Conventions, and the additional 1977 Protocols further codified what was acceptable or unacceptable in national and international armed conflicts.
But the problem then, as it remains today, is enforcement of the rules of war. This entails the questions; who should be held responsible for “grave breaches” of these rules as set out in the various Conventions and Protocols, what are the motivations for charging some accused and not others, can fair trials take place with the inherently political nature of such prosecutions, against whom should charges be made and what should the consequences be for those condemned?
In customary law only state responsibility was assigned to breaches of the laws of war or for unjust wars, so that breaches of the rules of war could only be compensated with reparations, or other civil remedies. There was no precedent for holding individuals responsible and making them subject to criminal prosecution. The first treaty mention of individual criminal liability for breaches of the laws of war is found in the work of the Brussels Conference of 1874, which produced a final protocol that was signed by 15 European states but never ratified. Paragraph III stated:
“The laws and customs of war not only forbid unnecessary cruelty and acts of barbarism committed against the enemy; they demand also, on the part of the appropriate authorities, the immediate punishment of these persons who are guilty of these acts, if they are not caused by an absolute necessity.“
This begs the question we still have to answer. Who are the “appropriate authorities?” For as the past history shows us, it has been the victors who have deemed themselves to be the ‘appropriate authorities.”
The aftermath of World War I heralded what was to follow in the 20th century and what we see now in this century. The powers that were victorious in 1918 set up a Commission on the Responsibility of the War and on Enforcement of Penalties, to inquire into criminal conduct of the defeated states. It was mandated to consider the propriety and feasibility of asserting criminal jurisdiction over particular individuals accused of breaches of the laws of war. There were arguments for and against this idea. Some argued it would prolong wars if prosecution was hanging over the heads of participants. but it is notable that the United States of America objected to breaking the principle of sovereignty of nations in order to hold heads of state and other state actors liable for collective actions of their sovereigns and they pointed out that there was no precedent for such jurisdiction.
The Americans, despite their support of various international criminal tribunals since then that they were involved in setting up against their enemies, still maintain this position today with respect to themselves and their leaders’ violations of the laws of war and humanitarian law. Against themselves, and their allies, no prosecutions can ever be conducted so that the fundamental basis of the law, that it be applied equally to all, does not exist in modern international criminal law except as a principle to be ignored.
In 1919 the Commission presented its report. It concluded that war crimes should be prosecuted before an international high tribunal composed of the victors of the war, and to include acts which provoked the war, but not the act of aggression itself since that entailed complex political considerations and it had never been regarded as a crime before. The Commission stated,
“The premeditation of a war of aggression, dissimulated under a peaceful pretence, then suddenly declared under false pretexts, is conduct which the public conscience reproves and which history will condemn but by reason of the purely optional character of the institutions at The Hague for the maintenance of peace . . . a war of aggression may not be considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal.
The United States at Annex II advanced four fundamental reservations to the report’s recommendations. First, it objected to the proposal of creating an international criminal tribunal, for which, it argued, there was ‘‘no precedent, precept, practice, or procedure,’’ instead of coordinating existing national military tribunals. Second, it invoked the limitations of jurisdiction when it argued that nations could not legally take part in the prosecution of crimes committed against the subjects of other nations. Third, it rejected the notion that any court of law could prosecute violations of the ‘‘laws or principles of humanity,’’ on the ground that such violations were moral rather than legal breaches and were, as such, non-justiciable. Fourth, it argued that to prosecute a head of state outside of his national jurisdiction would violate basic precepts and privileges of sovereignty. The Americans indicated their intention not to participate in any international trial.
Despite their objections, however, the final Treaty of Versailles called for the establishment of an international tribunal to try Kaiser Wilhelm II, to which the Americans, against their own stated policy, but for political reasons, agreed. But the Kaiser fled to The Netherlands and no trial took place. Similar trials were proposed against the Turks but failed to do much.
Of course the role of the Allied powers in provoking World War 1 and the methods of warfare they used were ignored completely so that, whether or not the defeated powers were guilty of crimes against peace and war crimes, the selective prosecution of only the defeated powers rendered the exercise meaningless and riddled with hypocrisy.
The same problem arose again after World War II with the Nuremberg and Tokyo trials that prosecuted only one side in the war while the crimes of the Allied powers were left unpunished. This, in turn, gave the Allies, especially the Americans, a sense of impunity from prosecution and punishment for their crimes. Their war crimes, such as the fire bombings of German cities and the use of nuclear weapons on Japanese cities, purely as a demonstration of their power to the Soviets, were crimes demanding the people involved be held accountable, but no one has been or ever will be held accountable. This, in turn, gave the Americans, a sense of immunity from prosecution and punishment for their crimes and encouraged them to commit further war crimes in all their wars since1945.
The Nuremberg Trials are considered a cornerstone of international criminal law. Indeed they produced the principle that aggressive war is the supreme crime against peace from which all others follow, a noble and logical conclusion. But what did it mean to produce that legal principle when the trials themselves were a massive case of selective prosecution, when the role of the USA and Britain, for example, in encouraging the Germans to attack the USSR was ignored, when the American policies and actions provoking Japan into its war with the USA were ignored, when, even before the war was concluded, the British and Americans began preparing for a new war against the USSR?
At the Nuremberg Trials there were no judges willing to state the obvious. But in the Tokyo Trials, there was a jurist who had the courage of his convictions, Judge Radhabinod Pal, from India, who voted to acquit all the Japanese officers and officials accused of war crimes.
While he concluded that the evidence was overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population of some of the territories occupied by them and also against prisoners of war, he produced a judgment questioning the legitimacy of the tribunal and its rulings. He held the view that the legitimacy of the tribunal was suspect and questionable, because the spirit of retribution, and not impartial justice, was the underlying criterion for passing the judgment.
He concluded:
“I would hold that every one of the accused must be found not guilty of every one of the charges in the indictment and should be acquitted on all those charges.”
I cite him further because the problems with international criminal tribunals he raised then are still with us today.
He argued that the United States had clearly provoked the war with Japan and expected Japan to act as it did. He stated,
“Even contemporary historians could think that as for the present war, the Principality of Monaco, the Grand Duchy of Luxembourg, would have taken up arms against the United States on receipt of such a note as the State Department sent the Japanese Government on the eve of Pearl Harbour.’”
He also noted that,
“Questions of law are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute alone are retained and all else is forcibly excluded. We cannot afford to be ignorant of the world in which disputes arise.”
He refers to the trial as a “sham employment of legal process for the satisfaction of a thirst for revenge.”
Furthermore, he believed that the exclusion of Western colonialism and the use of nuclear weapons by the United States from the list of crimes, as well as the exclusion of judges from the vanquished nations on the bench, signified the
“failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate.”
He was not alone among Indian jurists of the time; one prominent Calcutta barrister wrote that the Tribunal was little more than “a sword in a wig”
He also pointed out the injustice of accused being charged by a tribunal that did not exist when the alleged crimes were committed violating the fundamental principle that an accused cannot be charged with something made a crime only after the fact.
Publication of his dissenting judgement was suppressed for many years, but it is an important one and should be paid more attention to, because he raises in it not only the hypocrisy of these tribunals but also the illegitimacy of the ad hoc tribunals, the ICTY and ICTR, created under Chapter VII of the UN Charter.
Pal wrote, in the conclusion to his long judgement, (the capitalised words appear in the original Judgement) that,
“Chapter VII of the UN Charter provides for action with respect to threats to the peace, breaches of the peace, and acts of aggression. The provisions of this chapter do not contemplate any steps against individuals. It may safely be asserted that the coercive actions envisaged by chapter VII would not be invoked individually against those who might be responsible for the functioning of the offending collective entity.
As a judicial tribunal, we cannot behave in any manner which may justify the feeling that the setting up of the tribunal was only for the attainment of an objective which was essentially political though cloaked by a juridical appearance.
It has been said that A VICTOR CAN DISPENSE TO THE VANQUISHED EVERY- THING FROM MERCY TO VINDICTIVENESS; BUT THE ONE THING THE VICTOR CANNOT GIVE TO THE VANQUISHED IS JUSTICE. At least, if a tribunal be rooted in politics as opposed to law, no matter what its form and pretences, the apprehension thus expressed would be real, unless If JUSTICE IS REALLY NOTHING ELSE THAN THE INTEREST OF THE STRONGER.”
He also wrote,
“It is indeed a common experience that, in times of trial and stress like those the international world is now passing through, it is easy enough to mislead the people’s mind by pointing to false causes as the fountains of all ills and thus persuading it to attribute all the ills to such causes. For those who want thus to control the popular mind, these are the opportune times; no other moment is more propitious for whispering into the popular ear the means of revenge while giving it the outward shape of the only solution demanded by the nature of the evils. A judicial tribunal, at any rate, should not contribute to such a delusion.
The name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in need of generous magnanimity and understanding charity. The real question arising in a genuinely anxious mind is, “can mankind grow up quickly enough to win the race between civilization and disaster?”[2]
Yet, we are still engaged in victor’s justice. The establishment of the ad hoc war crimes tribunals for Yugoslavia and Rwanda, ultra vires the powers granted to the Security Council by the UN Charter, and the creation of the hybrid tribunals for Sierra Leone, Cambodia and Lebanon, has created a situation which Dr. Hans Kochler, of the International Progress Organisation in Vienna, felt compelled to write about in his famous book on the ad hoc tribunals entitled, “Global Justice or Global Revenge? International Criminal Justice At The Crossroads,”[3] I highly recommend it.
All these tribunals were controlled during their functioning by US assets as we now witness with the actions of the International Criminal Court against President Putin. The world knows the ICC has no jurisdiction to issue a warrant for the arrest of a head of state of a nation that is not a party to the Treaty of Rome. Nor can it engage in investigations into alleged crimes that took place the national territory of a nation such as Ukraine, that is also not a party to the Treaty.
As an aside, the ICC claims jurisdiction in the matter of Ukraine based on a letter from the claimed government of Ukraine sent to the ICC in April 2014, confirmed by a second letter in 2016, stating that Ukraine accedes to the jurisdiction of the ICC even though not a party to the ICC. But those letters are not legitimate since they were sent by an illegitimate regime imposed on the people of Ukraine when the duly elected government of Ukraine, the only legitimate government, was overthrown in a NATO organised and controlled coup d’état in 2014 which installed NATO puppets in power in Kiev, and since the letter was the idea of the United States that arranged the coup.
Further the acceptance of ICC jurisdiction contained in those letters is conditional on the ICC prosecuting only Russian alleged crimes, not those of the Kiev regime or its allies. But parties to the Treaty have to accept the complete jurisdiction of the ICC, not partial jurisdiction. The letters, therefore, cannot give the ICC jurisdiction it does not have. Western legal analysts and the NATO governments and media say nothing about these facts and that the entire exercise of the ICC against President Putin is American propaganda designed to prevent or impede any negotiations between the parties to the Ukraine conflict. When President Milosevic was charged by the NATO tribunal he ceased to be regarded as a head of state and became for NATO a criminal to be hunted down. So that, the ICC, while it pretends to exist to prevent war, acts instead to prolong war, just as the ICTY did in the case of the NATO aggression against Yugoslavia.
Likewise the ad hoc tribunals have no jurisdiction to arrest citizens of sovereign nations, to hold them prisoner, to pretend to try them, to condemn them to prison. Indeed, in 2007 thirty-seven of the accused at the ICTR sent a letter to the UN Security Council stating that they were political prisoners of the United Nations, and they were right to say so. The prisoners from the former Yugoslav republics held by the UN can state the same.
Another problem with international criminal law versus the domestic criminal law in all nation states is that in nation states the authorities only become involved after a crime has been committed, not during the commission of the crime, which would make the state itself a witness of and a party to the crime on one side or the other.
For example if two groups of men attack each other no one will be arrested or charged until after the fight is stopped by consent or the arrival of the police. But in a war between nations how is it possible to lay charges while the war is on-going, making it impossible to conduct honest, comprehensive investigations of the facts and when laying charges against one side or the other will always be regarded as a political decision and designed to influence the course of the war?
The Nuremberg and Tokyo Trials at least were established after the fact, as was the creation of the ad hoc War Crimes Tribunal For Rwanda, and the hybrid tribunals for Sierra Leone, Lebanon and Cambodia. But the Yugoslav tribunal created the precedent of laying charges during the conflict and for political reasons, for the benefit of one party to the conflict, in that case, NATO. We all remember that the Canadian prosecutor, Louise Arbour, on the orders of Madeleine Albright, charged President Milosevic only after France and Germany began talking about peace negotiations. The Americans wanted the attack on Yugoslavia to continue and Arbour player her part by indicting President Milosevic as a war criminal, and so prevented any negotiations from taking place. The NATO aggression continued. Now we have the ICC playing the same role with respect to President Putin, not only acting outside its jurisdiction, but also entering the Ukraine conflict itself and becoming a party to the conflict and not to bring peace, but to create the conditions for a longer war.
My role as a lawyer in the trial of President Milosevic by the Yugoslav Tribunal, was a limited one, since I was heavily involved in a trial at the Rwanda tribunal at the same time but it was clear, as Dr. John Laughland wrote in his book, “Travesty, The Trial of Slobodan Milosevic and the Corruption of International Justice,[4]” that the trial was a travesty. Ramsay Clark, the former Attorney-General of the United States and a member of the International Legal Committee for the Defence of Slobodan Milosevic (ICDSM), of which I was a part, said in his introduction to Laughland’s book,
“The ICTY was not only conceived in sin, it violated the first principle of the UN Charter, the sovereign equality of all nations…The US, which heavily bombed Belgrade in 1945, again bombed Yugoslavia from Novi Sad, to Nis, to Belgrade in 1999. The US was joined by NATO. Yet, the ICTY was empowered only to indict the victims of US and NATO attacks, not the aggressors.”
On March 11, 2006, President Slobodan Milosevic died in a NATO prison. No one has been held accountable for his death. In the years since the end of his lonely struggle to defend himself and his country against the false charges invented by the NATO powers, the only demand for a public inquiry into the circumstances of his death, aside from ours, came from Russia when Foreign Minister, Sergei Lavrov, stated that Russia did not accept the Hague tribunal’s denial of responsibility and demanded that an impartial and international investigation be conducted. Instead, The NATO tribunal made its own investigation, known as the Parker Report, and as expected, exonerated itself from all blame.
But his death cannot lie unexamined, the many questions unanswered, those responsible unpunished. The death of Slobodan Milosevic was clearly the only way out of the dilemma the NATO powers had put themselves in by charging him before the Hague tribunal. The propaganda against him was of an unprecedented scale. The trial was played in the press as one of the world’s great dramas, as world theatre in which an evil man would be made to answer for his crimes. But of course, there had been no crimes, except those of the NATO alliance, and the attempt to fabricate a case against him collapsed into farce.
The trial was necessary from NATO’s point of view in order to justify the aggression against Yugoslavia. His illegal arrest, in Belgrade, his illegal detention in Belgrade Central Prison, his illegal rendition to the former Gestapo prison at Scheveningen, near The Hague, and the show trial that followed, were all part of the drama played out for the world public, and it could only have one of two endings, the conviction, or the death, of President Milosevic.
Since the conviction of President Milosevic was clearly not possible after all the evidence was heard, his death became the only way out for the NATO powers. His acquittal would have brought down the entire structure of the propaganda framework of the NATO war machine and the western interests that use it as their armed fist.
The key to the problem for NATO is the following statement of President Milosevic made to the judges of the Tribunal during the trial:
“This is a political trial. What is at issue here is not at all whether I committed a crime. What is at issue is that certain intentions are ascribed to me from which consequences are later derived that are beyond the expertise of any conceivable lawyer. The point here is that the truth about the events in the former Yugoslavia has to be told here. It is that which is at issue, not the procedural questions, because I’m not sitting here because I was accused of a specific crime. I’m sitting here because I am accused of conducting a policy against the interests of this or another party.”
The prosecution, that is the United States and its allies, had not expected a real defence of any kind. This is clear from the inept indictments, confused charges, and the complete failure to bring any evidence that could withstand even basic scrutiny. The prosecution case fell apart as soon as it began. But once started, it had to continue. NATO was locked into a box of its own making. If they dropped the charges, or if he was acquitted, the political and geostrategic ramifications were enormous. NATO would have to explain the real reasons for the aggression against Yugoslavia. Its leaders themselves would face war crimes charges. The loss of prestige cannot be calculated. President Milosevic would once again be a political figure in the Balkans. The only way out for NATO was to end the trial but without releasing Milosevic or admitting the truth about the war. This logic required his death in prison and the abandonment of the trial.
One can write at length about all the injustices inflicted on the accused held by the ad hoc tribunals, the criminality of the behaviour of the prosecution and other organs of the tribunals. In another paper I termed it the “criminalisation of international criminal justice;” because of the inequality of arms between the prosecution and defence, the clear presumption of guilt expressed by the judges, and the propaganda organs of the tribunals, the fabricated charges, fabricated witnesses, hidden documents, forged documents, use of quasi-legal doctrines such as joint criminal responsibility- an American invention used to apply guilt by association and without proof of intent- denial of the right to choice of effective counsel, denial of resources to the defence, intimidation and threats against witnesses and defence counsel, to hostile judges who tried to control the trials in the prosecution’s favour.
At the Rwanda tribunal we were astonished that the prosecution never offered any forensic or concrete evidence that any killings had taken place, no videos, no photographs, no DNA, no physical evidence whatsoever was produced even though we demanded proof. For people had been killed, but not who they claimed, nor in the manner they claimed, nor by who they claimed. But we were never provided any actual evidence of it, except witnesses who claimed to see things they could not have seen, and many of them confessed, on cross-examination, that they had been told to lie by the prosecution, or their agents, in order to avoid prison or death. It became so embarrassing for them that in 2006 they decided to eliminate the necessity of proving their accusations by stating that the genocide they charged took place was a judicially recognised fact, even though the accused denied it. Courts are normally only allowed to use the tool of judicial recognition of facts, or taking judicial notice of facts, when the facts are uncontested, to obviate the necessity of proving things such as the sun rising every day. But at the ICTR, the accused, who were charged with genocide and who denied it, were forbidden to defend themselves against the main charge they faced.
In our trial we protested this and, despite the judges trying to control us, ignored it and kept filing evidence proving that the charges were false and unfounded. But in that tribunal too, just as at the ICTY, the Americans controlled the entire operation since, despite their denials that they were involved in Rwanda, they were involved directly in the war, which they provoked and supported to gain access to the resources of the Congo, and they needed to cover up their role and justify the war and all the deaths by fixing blame on scapegoats, just as they did at the ICTY.
The injustice continues at the International Criminal Court where accused are held for years without the prosecution offering any evidence that they had committed any crime, as happened to President Gbagbo of Ivory Coast who was held for years on fabricated charges, to keep him detained, on the request of France, to rob him of his presidency and to keep him out of politics in his country even when several judges on multiple occasions told the prosecution they could find no grounds to detain him since the prosecution had not offered any evidence against him. Yet, still he was detained.
The presumption of innocence at the ICC is replaced by the presumption of guilt, just as it was at the ad hoc tribunals, as is evidenced by the establishment of a “Counsel for Victims” and giving that office official status when in national courts, the “victims” would be considered witnesses to be cross-examined. A witness can only become a “victim” of the accused after a finding of guilt against the accused, not before. An accused at the ICC faces, in effect, two prosecutors, the official prosecutor, and the counsel for the alleged victims. But the troubled history of the ICC is well known and the arrest warrant issued against President Putin has only brought it into further disrepute.
But we are faced not only with the ad hoc UN tribunals and the ICC. The Americans, the British and the European Union have begun setting up their own private tribunals. They call them “peoples tribunals.” The first is the London Tribunal headed by the arch nemesis of President Milosevic, British barrister, Geoffrey Nice, who was the lead NATO prosecutor against him at the ICTY. It’s objective is to create propaganda against China concerning allegations of mistreatment of Uyghurs in China, all of which originate with CIA sources. It held two sets of hearings in London in 2020 and 2022 and pretended to issue a “judgement”, condemning China. That judgement is now used in western media propaganda against China. Now there is another tribunal headed by Stephen Rapp, the former US ambassador for war crimes, former prosecutor at the Rwanda tribunal and later the Hariri Tribunal for Lebanon. He has established what he calls “The Court of the Citizens of the World,” where he made himself a judge and issued an “indictment” against President Putin for “aggression.” He then himself issued the judgement.”[5] And On March 4th, 2023, Ursula Von der Leyden announced the establishment of another tribunal, run by the EU, to lay charges against Russia.[6]
Finally, we have Hashim Thaci, the former head of the Kosovo Liberation Army, so-called, a US asset, along with a few others, facing trial in what is termed a “Kosovo Court,” located in The Hague, with judges from NATO countries. This mongrel court seems to me to have been established to give Kosovo some credibility and legitimacy as a country when most of the world refuses to recognise Kosovo as a country, to clear its sordid reputation. Hashim Thaci’s crimes are well known, and he became “president’ so-called of Kosovo when his crimes were well known and applauded by his supporters. But is this the ‘court” to try him? He should be facing a Serbian court, for his crimes were committed against the people of Serbia, in Serbia. The Kosovo court therefore is a NATO backed court, and whether it will be used to condemn Thaci and the handful of others, as scapegoats, to give Kosovo some credibility as a “country” or will be used to exonerate him is not clear. Probably, as at the ICTY and ICTR, a few will be convicted to give the court some credibility and the rest acquitted. But once again we see that international criminal justice being used for political and geostrategic objectives.
In light of this history can we say that international criminal law has a future? Can we say that it has actually existed outside the desiderata of philosophers and moralists and the noble principles established in customary law and the various international conventions, protocols and treaties? Can we escape the vast contradiction, between theory and praxis, between noble attempts to limit wars, to govern human conduct in wars, and the political purposes to which international criminal law has been twisted and perverted in practice?
There is not much more I can say except that it seems to me that international justice worthy of the name cannot exist without an international order that is democratic; a world order in which the sovereignty and equality of nations is fundamental. Law and its legal structures reflect the social, economic and political relations of a society. To rebuild the legal architecture of international justice so that it is fair, impartial and universal we first have to change the fundamental economic, social and power relations that are its foundation. Without this mankind will continue down the path of reaction and war and the list of victims of these truly criminal tribunals will be long and the victims of a world war will include all of us.
[1] Clausewitz, On War, 1,1 pages 32-34 [2] Pal Judgement, http://www.sdh-fact.com/CL02_1/65_S4.pdf, page 700 [3] ISBN: 3-211-00795-4 ,Springer: Vienna / New York, 2003 [4] Pluto Press, London, Ann Arbour, 2007 [5] http://opiniojuris.org/2023/03/07/the-court-of-the-citizens-of-the-world-opinion-of-stephen-rapp-judge-of-tccw/ [6] https://ec.europa.eu/commission/presscorner/detail/en/statement_23_1363
