International War Crimes Tribunal and Legality of Occupation on Iraq – suggestion for working together with coordinating groups in other parts of the world
(A talk given at the Workshop of Legality of War in Iraq at CND Annual conference 6th of September 2003 – University of Birmingham)
Vijay Mehta
Main E-mail: vijay@anglo-sphere.com
This article also includes a interview with Luis Moreno-Ocampo, the first prosecutor of the newly appointed international criminal court at the Hague in Netherlands
It is good to know that how many people from different countries are taking initiatives similar to the UK Tribunal in London and are willing to work together for a peaceful future.
They will explore if there is a Common Ground with similar tribunals taking place in Greece, Japan, Turkey and UK and other countries to work together. The coordinating group in Turkey is considering to hold a three day working meeting in Istanbul on October 14-15-16. We will try to send a representative to take part in the deliberations of the tribunal in Turkey.
Similarly we would like to invite all the groups holding international tribunals to come to UK tribunal which CND and Peace rights are holding on November 8-9 in London at LSE (London School of Economics). If number of people is coming to UK tribunal then we can have a fringe meeting to exchange information, evidence and comments to move forward and In fact I think now there is a scope and a possibility to incorporate these specific tribunals into a broader international one perhaps to be held in Hague or Geneva for bigger impact and media attention.
All these tribunals will broadly be establishing the following:
I am giving the information on all the International War Crimes Tribunal initiatives set up in other parts of the world in the hope that we can do something together.
SUMMARY OF INFORMATION ON IRAQ TRIBUNALS
Greeks accuse Blair of war crimes in Iraq
"[The accused] intended to cause severe psychological distress or major physical or psychological damage to individuals who enjoy the protection of the Geneva conventions."
The association, which has 20,000 members, said the campaign against Iraq was highlighted by attacks on a non-combative population, non-military targets and defenceless towns, villages, settlements and buildings. The natural environment was also destroyed by air assaults that were disproportionate to the desired military objective, it argued.
The association said it had lodged the suit at the court in The Hague "in correspondence with its institutional role to, amongst other things, safeguard international law".
Should the case go ahead, the association plans to call innumerable international witnesses, including the UN secretary general Kofi Annan, the former chief UN weapons inspector Hans Blix, and the European commission president, Romano Prodi.
The ICC was established last year with the express purpose of trying cases of war crimes, genocide and crimes against humanity.
But the tribunal, which some critics have called a kangaroo court, fearing cases of this very kind, can only act when a country is unable or unwilling to investigate or prosecute the crimes alleged to have been committed by its citizens.
In addition to Mr Blair, the foreign secretary, Jack Straw, the defence secretary, Geoff Hoon, and the minister of state for the armed forces, Adam Ingram, are also accused of war crimes.
It is now up to the ICC chief prosecutor Luis Moreno Ocampo to decide whether there is any substance to the suit.
The complaint, which outlines 110 violations of the criminal code, echoes the widespread anti-war sentiment which gripped Greece before the conflict.
Although the Greek Socialist government quietly supported the invasion, providing air space and a military base on Crete for allied spy and war planes, more than 90% of the Greek population were vehemently opposed to it.
Mr Blair was singled out in particular as the focus of their venom.
After lodging the complaint, the association’s president, Dimitris Paxinos, reiterated that there were "good grounds" to sue Mr Blair, irrespective of whether his government had "sexed up" intelligence on Iraqi’s alleged weapons of mass destruction to justify the war.
Mr Blair, he said, would have to appear before the court if there was an "indication of guilt" even if, he conceded, it was unlikely that the ICC would summon Mr Blair to testify.
"I don’t think that’s very likely," he told a local radio station, "but really that does not concern me. "I see it as my duty to bring the action."
The association, he said, had not brought similar charges against the American president, George Bush, because Washington had still not ratified the treaty which set up the ICC.
Downing Street has repeatedly dismissed the allegation the British government is culpable of war crimes in Iraq.
Upon hearing of the action by the Greek lawyer’s group in May, a No 10 spokesman said: "As we have made clear on a number of occasions, the government acted in accordance with international law."
Last night legal experts said that if the court did decide to hear the case it would set a precedent that could "open the floodgates" of similar actions being brought before the tribunal.
Japanese Tribunal
The attachment is from
Ms Chihiro Chujo
International solidarity Committee, Movement for Democratic Socialism,Japan.
Dear Sir,
I would like you to ask you to be an initiator of the International Criminal Tribunal for Iraq since we need to make the really international initiative. And it would be much better if you contemplated such possibilities of contribution as recommendation of UK or European judges and public procurators, holding a public hearing in UK or in other European countries, and so on. For the detail, please read the document attached to this e-mail.
At present the following persons are preparing the International Criminal Tribunal for Iraq based on the experiences of the International Criminal Tribunal for Afghanistan.
Prof. Akira Maeda (Rokyo Zokei University, Japan)
Prof. Takahito Shimizu (Ohibirin University, Japan)
Hideki Yano (International Criminal Tribunal for Afghanistan)
Haruhisa Takase (International Criminal Tribunal for Afghanistan, Japan)
Daizo Kutsuzawa (Preparatory Group of the International Criminal Tribunal for Iraq, General Secretary of MDS, Japan)
As a schedule from now on, we would like to fix the initiators and begin calling for supporters in July, and hold the conference founding the Tribunal movement on 5. October (the date is not yet fixed) this year. From
January next year we are going to hold public hearing in Japan and in other countries, and give decision at the end of next year.
We think that the UK contribution to such a movement is vital since you have a long tradition of international law regulating peaceful relationship between nations.
I am always open to your questions and looking forward to your answers.
Ms Chihiro Chujo International solidarity Committee, Movement for Democratic Socialism,Japan.
Turkish Tribunal
This Attachment is from: Ayse Berktay [ayseberktay@superonline.com] wrote to the International Peace Bureau saying:We are working on organizing an independent international tribunal investigating and documenting the very grave crimes the US and its allies have committed in Iraq in launching the attack, during the invasion and the current occupation. The embargo itself would need to be taken up for discussion - in terms of its devastating results. The tribunal would also consider the "full spectrum dominance", "pre-emptive war", etc. doctrines and various foreign and "defence" policy papers and discuss whether they, in themselves, constitute violations of international treaties and international humanitarian norms and values and discuss the role of the "Project for New American Century (PNAC)" in the process. The tribunal would, after examining reports and evidence, listening to witnesses (Iraqi and internationals), hearing interventions by victims, reach a decision.
In the attached documents are some basic headlines of the groups of issues to be addressed.
The goal is to organize a genuinely respectable and credible tribunal which shall have worldwide impact. This requires that:
1. The tribunal consists of internationally accepted and respected people of merit in their various fields.
2. The tribunal should include people from as many different sectors/professions/groups as possible and from different continents - with representative capacity. In other words, this war of aggression having been a crime against peace and humanity as well as against the people of Iraq, the composition of the tribunal should in some way be acceptable as a representation of the conscience of the world as a whole.
3. The tribunal should not remain an academic endeavor but should be backed by a strong international campaign. Anti-war and peace movements, which carried out the big mass movements against the attack on Iraq, have in principle adopted the idea of indicting the aggressors and turning this into a campaign. They are now being approached to confirm their participation. We have already taken the idea to the international anti-war coalition meetings in Berlin, Jakarta and Geneva.
To increase its worldwide impact and to turn it into a steadily rising campaign culminating in the final session - which will take place in Istanbul, Turkey - we developed the following idea which was accepted in Brussels:
It seems possible to group the basic areas of investigation under 4-5 titles. The tribunal would need to hold preparatory sessions / hearings to develop the investigation, to prepare preliminary reports and to map out what else needs to be done before the final session. There will be separate investigation commissions for each of the 4-5 main titles. These groups would each hold a preparatory / preliminary session in a different country - preferably in different continents. To these sessions only those people involved in that special area of investigation - investigators, some witnesses, report writers etc. and of course a representative from the tribunal to preside the session - would go.
All these commissions of inquiry or investigation will be working in conformity with an overall set of rules and norms that will apply to the whole tribunal and in close contact with the coordinating group and the tribunal board.
Where will the preliminary hearings be held?
This would depend on movements coming up and saying we are willing to host this and to arrange its logistics.
The reports of these preliminary hearings by commissions of investigation will be presented in the final tribunal. All the documentation will be available to the jury and the tribunal board. The jury will evaluate all these and new evidence, listen to the "defense" and hear some witnesses at the final tribunal and report on the conclusions it reaches. And the tribunal board will evaluate all these and reach a decision. This will not be a sentence but a decision on whether the various accusations are valid and whether such crimes have actually been committed.
In Brussels the group in Turkey was asked to go ahead with coordinating this project and to act as the clearing house of the information flow.
We will do this and in late September - early October we will hold an international working meeting with organizations and persons who commit themselves to take part in this effort and finalize all the plans. We expect the coordinating group to expand to include other regions of the world after this meeting.
After this meeting we will all make an international declaration - announcing that there will be a tribunal, the schedule, etc. We will start sending out official invitations to people us wish to take part in the tribunal board, the jury, commissions of investigation, etc.
Already two groups, one from Brussels and the other from Japan/Hiroshima have volunteered to hold two of the preliminary hearings. We are working to have the first preliminary hearing in New York - it will be a very good starting point. With the broad support this initiative is developing, it seems likely that there will be other offers for hosting from Asia, Latin America and Europe. Movements in the countries of the region will contribute towards the organization of the campaign and the event and its publicity. The best arrangement would be if, as in the case of Brussels and Hiroshima, the groups volunteering to hold preliminary sessions also undertake the task of organizing the commission of investigation focusing on a particular aspect of the crimes in question. Of course we will do the coordination and give all the help we can to make sure that the commission is made up of the best possible participants and is fully competent and is equipped to carry out the task. But it could also be possible to think of hosting a hearing and arranging for a commission of investigation separately and then make rational matches.
Organizations are invited to participate in this effort. They could participate at various levels. They could:
1. Undertake to organize a preliminary session and the commission of investigation.
2. Offer to host a preliminary session.
3. Undertake to set up a commission of investigation.
4. Offer to contribute contacts, names of people who would qualify to take part in the various components of the tribunal and establish the initial contacts with those people.
5. Offer to contribute names & contacts of persons and organizations of expertise who are already researching into the various aspects of the crimes and violations in question.
6. They could also undertake to follow up with the preparation of certain reports and make them available for the use of the tribunal. We need reports. There are many institutions and people all around the world who are exploring many aspects of what has been done and what is going on in Iraq. We need to build on these and make them usable in the tribunal. All this separate efforts and work then would combine to produce an immense impact.
7. There will be a web page soon. We will need to have the web page in as many languages as possible for constant flow of information.
8. Offer to undertake to organize the local campaigns around the tribunal.
9. Offer to contribute financially towards meeting the expenses involved in realizing this tribunal. Until the international declaration is made, our more concrete work will go on at the local level and we will be raising funds locally. After the declaration, we will have an international bank account. We have asked the Russell Foundation to monitor it. Either they or someone they will advise will be doing this.
We are asking for:
a) Confirmation of endorsement of the project
b) Indication of which, if any, of these or other contributions the organization undertakes to make
c) Close contact and coordination & information flow concerning developments.
The draft on main headlines of issues to be addressed in the tribunal is attached. It is A DRAFT and needs to be developed. We are going to have a meeting with a group of experts in international law and human rights law in ten days and will develop it with them. Then we will be consulting others at the international level.
We have an office at the below address.
Our contact information is: c/o Baris Girisimi (Peace Initiative of Turkey)
Gazeteci Erol Dernek Sok. No 11 Hanif Han 4/5, 80072 Beyoglu - Istanbul -
Turkey Phone: +90 532 721 04 91 or +90 212 292 97 65 Fax: +90 212 244 73 70
ayseberktay@superonline.com
Attached are:
Main Headlines (draft)
The text we brought to Brussels
Text explaining the components of the tribunal
Results of the meeting in Brussels
[hhe attachments are not enclosed here but are presumably available on the web site].
UK initiative Peacerights Tribunal
Peacerights is planning a tribunal on the legality of the actual conduct of the war. This will take place on November 8-9.
There will be 2 stages. The first stage will consist of a panel of five internationally renowned lawyers. The purpose of this first stage will be to establish as a matter of principle whether certain methods of attack or the use of certain weapon systems are within the definition of war crimes from the Rome Statute. This panel will hear evidence from a highly expert panel of weapons experts who will be able to give evidence to the panel on the various issues arising from the weapon systems etc used in the war. At the moment an obvious focus is on the use of various types of cluster bombs but we will also look at depleted uranium, the effects on electricity supplies etc.
Having established the basic principles the second stage will hear evidence as to the conduct of the war and the effect on civilians from a variety of sources, for example human shields, journalists, etc. Peacerights has been monitoring the war from the outset. The panel at the second stage will establish as a matter of fact and evidence whether war crimes have been committed and if so the tribunal will report to the prosecutor of the ICC and he will be urged to use his powers to start an investigation on his own initiative.
There are a great deal which people and groups can do and we are hoping to involve both individuals and groups. In this way the initiative will be a peoples' one rather than being confined to lawyers and academics.
There are other initiatives taking place in Germany, Belgium, Philippines, Indonesia and other places. But I’m unable to present them owing to lack of details.
GRASSROOTS INTERVIEW With Luis Moreno – Ocampo (from www.moveon.org)
Mr. Moreno-Ocampo was elected as the Chief Prosecutor by the Court's ratifying countries in April. He has a long history of prosecuting criminal and human rights cases including the extradition of a former Nazi officer from his home country of Argentina, political bribery, journalists' protection, and the military junta that seized power during Argentina's "dirty war." The Prosecutor has also been a visiting professor at Stanford and Harvard Universities in the United States. Here's an excerpt from Mr. Moreno-Ocampo's responses:
"National States alone cannot offer individuals the protection they need and deserve, as the attacks on the Twin Towers in Manhattan show. The protection offered by national States is not sufficient to guarantee the life and freedom of their citizens if the international community, too, is not based on the rule of law. Only the existence of mechanisms for the protection of all persons in all countries can bring lasting, comprehensive peace."
His full answers to the questions you selected are below. Thank you to the Prosecutor and all the members who posed questions.
Question 1: Could the ICC have been an alternative to bringing Saddam Hussein -- or, for that matter, Osama bin Laden -- to justice? Do you imagine that -- with or without U.S. approval -- the ICC can become a deterrent for the kinds of pre-emptive wars we've seen since 9/11?
Answer 1: The International Criminal Court has no jurisdiction over crimes
committed by Saddam Hussein or Osama bin Laden before the entry into force of the Rome
Statute on 1 July 2002. The ICC may have jurisdiction over crimes committed by them on or
after that date, provided that certain very clear requirements are met. A war crime, a
crime against humanity or genocide must have been committed either on the territory of a
State Party to the Rome Statute or by a national of a State Party for the ICC to have
jurisdiction.There are currently 91 States Parties to the Statute, but Iraq is not one of
them. Thus, crimes committed by Saddam Hussein in Iraq would not fall within our
jurisdiction. Even if Iraq became a State Party, the Court has no retroactive
jurisdiction, so some of the atrocities allegedly committed by Saddam Hussein prior to 1
July 2002, such as the gassing of the Kurds in Halabja in 1988, cannot be investigated by
the Office of the Prosecutor. The ICC is only designed to respond to atrocities that occur
after a State ratifies the Statute. Although there is no agreed legal definition of
terrorism under international law, it is possible that certain terrorist acts allegedly
committed by Osama bin Laden could be qualified as either war crimes, crimes against
humanity or even genocide, if the complex legal criteria defining these crimes are
fulfilled. If this were the case, and provided the acts in question occurred on the
territory of a State Party, or were carried out by the national of a State Party, and
occurred on or after 1 July 2002, then there could be possible ICC jurisdiction. Despite
all of the above criteria, if a State is genuinely willing and able to investigate and
prosecute a crime itself, then the ICC has no authority to act. This is because the Court
is complementary to national justice systems. It is only when a crime within the
jurisdiction of the Court has occurred, and national States are unwilling or unable
genuinely to act, that the ICC will be able to assume jurisdiction. For thousands of years
the world has used war as an instrument of conflict resolution. Peace is a modern
invention. Since weapons of mass destruction have unlimited effects, the ICC and other
institutions are key for the creation of a world in which violence is controlled. The
Court cannot exercise jurisdiction over alleged crimes of aggression until the crime is
defined and the conditions for the exercise of jurisdiction are set out. The Assembly of
States Parties of the ICC may adopt such a provision at a review conference to be convened
in 2009. Thus, pre-emptive wars are not, at this time, within the jurisdiction of the
Court.
Question 2: For those of us less informed about the workings of political bodies, would you please explain in simple terms the necessity of a second international organization independent of the United Nations? Does the UN or its Security Council not already have the jurisdiction to try war and human rights criminals? Is there some clear advantage to functioning separately?
Answer 2: The ICC was born from discussions that took place in the framework of the United Nations. However, some UN member States do not support the Court, and thus we are an independent organisation. A fundamental difference between the UN and the ICC is that some UN member States have the power to veto Security Council resolutions. This alone sets the two institutions apart. The ICC acts independently and has an internal system of checks and balances. All of this accounts for the lack of support for the ICC of some States and to their unwillingness to ratify the Rome Statute. The Tribunals for the former Yugoslavia and Rwanda were created by the UN Security Council exercising power under Chapter VII of the UN Charter. These Tribunals were created because the Security Council had determined that the situations in these countries constituted a threat to or breach of international peace and security. Their creation was thus a reaction to pre-existing situations. They can only prosecute crimes which occurred within those countries, and do not have the potential global reach of the ICC. The ICC is intended to exist prior to any future atrocities occurring, so that those who choose to commit these atrocities will have knowledge before they act that there is an established Court ready to investigate and prosecute them. This means that the ICC has a significant global power of deterrence which previously did not exist. It would not have been legally possible for the Security Council to create a prospective court for situations which had not yet occurred – particularly so when at the moment of creation, there has been no threat to or breach of international peace and security. Furthermore, to create a truly global Court, global participation and consensus was required. The ICC was created not by a resolution of the Security Council, but by an extensive multi-lateral treaty negotiation which concluded in Rome in 1998. 160 countries attended the negotiations, with 120 finally voting to adopt the Rome Statute. This later increased to 139. Only 7 countries voted against it (including the US). Of this 139, the number of States who have become full participants of the ICC system is currently 91. This means that, although it does have a close relationship with the UN, the ICC is an independent treaty body. The General Assembly sponsored the Rome Conference, and the Security Council can trigger the jurisdiction of the Court by referring a situation for investigation to the Prosecutor, thus avoiding the delays and costs involved in creating ad hoc tribunals as a reaction to atrocities.
Question 3: How can we, who believe that the US should be a participating member of the world community, convince those who fear that the ICC would be misused for political interests? What arguments can we make?
Answer 3: In order to appease those who feared that the ICC would suffer from politically motivated bias, the putting in place of a rigorous system of selection of its officers and a system of checks and balances was necessary. These systems ensure that the Court is a serious institution, and one which possesses high technical quality. Despite the assurances offered by these safeguards, individuals in some countries are disinclined to support a criminal court that is independent, because it limits the actions of certain States. The judicial system, as we know it, developed within national States in which the government controls the police and the army, and also designates the judges. In a world without a central government, without police and an army, a system of justice which is independent is a novelty and may give rise to fears and uncertainty. Despite not currently being a supporter of the ICC, the US was an active participant of the Rome Conference in 1998 and played a major role in the inclusion in the Statute of a comprehensive series of safeguards to protect national sovereignty and to prevent the ICC from ever being used for frivolous or politically motivated prosecutions. As such, the Rome Statute contains a comprehensive system of checks and balances. Below is a selection of some of the most prominent safeguards. Any investigation initiated by the Prosecutor himself will require the authorisation of a Pre-Trial Chamber of three judges who must examine the evidence the Prosecutor has gathered and be satisfied that there is a "reasonable basis to proceed". Further, any arrest warrant issued must also be confirmed by this Pre-Trial Chamber. An accused person, and any involved countries, will have the opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber. Also, the system of complementarily protects against politically motivated prosecutions because if States are willing and able to genuinely investigate and prosecute a matter themselves, they need never fear ICC involvement. The need for the national proceedings to be genuine is crucial, though, as national action cannot be used to "shield" someone from ICC jurisdiction, and if done so, the ICC will have the power to act. The Prosecutor himself and all the judges went through a rigorous process of scrutiny prior to their election as officials of the Court. There are strict criteria for their selection which includes they be experts whose reputation, moral character and independence are beyond reproach. The judges are nominated by the States Parties and must be eligible for the highest judicial office in their home country. Whilst in office the Prosecutor and judges are prohibited from engaging in any activity which may threaten their independence, and, if they do so, they can be removed. Furthermore, if they abuse their power while in office, they can be impeached. It must be emphasised that the crimes the ICC is empowered to prosecute are the most serious, horrendous and egregious crimes known to humanity and prior to the Rome Statute, the US was fully committed to preventing and punishing the commission of these crimes. The US does not operate a policy of committing these crimes, and as such should not fear prosecution of its nationals, particularly when all the safeguards are taken into consideration.
Question 4: Some have argued that weak, poor countries should actually oppose the Court alongside the U.S. because it’s unlikely the ICC will be able to pursue cases against the leaders of rich, powerful states on whose political support and deep pockets it will depend. In effect, the Court would not be able to avoid propagating a double standard of "justice" that reflects that power dynamics of global politics. Do you find this argument at all valid?
Answer 4: National States alone cannot offer individuals the protection they need
and deserve, as the attacks on the Twin Towers in Manhattan show. The protection offered
by national States is not sufficient to guarantee the life and freedom of their citizens
if the international community, too, is not based on the rule of law. Only the existence
of mechanisms for the protection of all persons in all countries can bring lasting,
comprehensive peace. The life and freedom of individuals in any country can be threatened
by internal and external elements. Internally, individuals may be attacked by groups over
which the State has no control. This is what happens in countries in which the rule of law
has broken down. The events that took place in Rwanda in the 1990s are an example of this
type of threats. This is the kind of situation that can be repeated. It is taking place in
Ituri, Democratic Republic of Congo’s a second set of threats is external, and
consists of attacks coming from other States. In order to protect individuals from this
type of threat, it is necessary for States to reach consensus regarding the definition of
the crime of aggression. However, there is also scope for some of the crimes committed in
this context to come within the purview of the ICC, if they constitute war crimes, crimes
against humanity or genocide.
Question 5: Given your comments on the role of corporations and the international
banking system in the Democratic Republic of Congo, might the ICC be a mechanism to deal
indirectly with businesses implicated in massive human rights violations, even if
international business does not directly fall under the ICC's jurisdiction? Do you think
that the issue of corporate responsibility might be an issue that should be raised at the
ICC's review scheduled for 2009?
Answer 5: The issue of corporate responsibility is central to our vision of
ensuring the observance of the law in the long term. We need to align values, economic
interests and decisions of national States. Corporations have to be aware of the fact that
for there to be markets, there needs to be peace, and that they, too, can contribute to
its construction. The ICC has no jurisdiction over crimes such as money laundering and
illegal exploitation of natural resources, both of which would be fuelling the war in
Ituri according to credible reports. The Office of the Prosecutor is convinced that
investigations and prosecutions into the financial aspects of the crimes being committed
in Ituri will surely contribute to the winding down of the war in the country.
As we can see from the comments of the ICC prosecutor Luis Moreno – Ocampo that if we can establish as a mater of fact and evidence whether war crimes have been committed and if so the tribunal will report to the prosecutor of the ICC and he will be urged to use his powers to start an investigation on his own initiative.
Thank you very much
Vijay Mehta
MAVice-Chairman: Action for United Nations Renewal
Secretary: London CND (Campaign for Nuclear Disarmament)
Editor: INLAP TIME (Institute for Law & Peace)
Founder Member: Non Violent Action Monthly Magazine