Opinion Editorials, August 2010

Who Will Take Out the Garbage if our Courts of Justice Won't Punish War Crimes?

By Stuart Littlewood

Redress, August 8, 2010

Stuart Littlewood considers the impunity with which state-sponsored murderers and war criminals operate and argues that if universal jurisdiction is not made to work, then upright, socially responsible citizens may have to dispense justice themselves. “Assassination may not remain the private playground of shadowy CIA and Mossad operatives for much longer.”

Millions would love to see the present crop of war criminals dangling from lamp-posts.

But somebody called “Ellie”, writing on Medialens has put a damper on this happy prospect. She explained the difficulties in bringing the scum to book. One of the things the British government wants to do, she said, is "stop the possibility of private prosecutions for [international] crimes committed by foreign nationals, so that friendly war criminals can continue to sup tea in Buckingham Palace".

Unfortunately, crimes that can supposedly be tackled under universal jurisdiction are limited and don't include waging a war of aggression (although they do include war crimes in general), "so we can't get anywhere with this charge (e.g. against Bush) in a domestic court".

“The same criminal trash who [went to war illegally or on a false prospectus] are bored with their murderous adventures in Iraq and Afghanistan and sulking because they haven’t turned out to be as heroic as advertised. They are now impatient to do it all again only better – in Iran.

Thanks “Ellie” for that. To pursue someone like Blair for war crimes in a British court it would be necessary to get the Crown Prosecution Service to take the case. However, our corrupted establishment is hardly going to initiate steps against one of their own, or make it easy for outsiders to do so. Efforts so far have met with little success. There could of course be good reasons for this. To make a war crimes charge stick it may be necessary to show, for example, that our armed forces carried out attacks disproportionate to any military gain. Not as easy as it sounds, given the stonewalling judges picked to hear these cases.

Those who have tried to lay charges need to work on refining the way they formulate and present their case until they leave judges no wriggle-room.

Legal buck-passing and general paralysis

The impression I get is that unless the prime minister and the hordes of MPs who clamour for illegal war and the consequential civilian mega-deaths actually pick up a weapon and personally gun down a classroom of Iraqi kids in front of witnesses, British justice won't touch them.

The International Criminal Court (ICC) at The Hague is not exactly blazing a trail for justice either. Its chief prosecutor, referring to a case before him in February 2006, remarked:
The events in question occurred on the territory of Iraq, which is not a state party to the Rome Statute and which has not lodged a declaration of acceptance under Article 12(3), thereby accepting the jurisdiction of the Court.

Therefore, in accordance with Article 12, acts on the territory of a non-state party fall within the jurisdiction of the court only when the person accused of the crime is a national of a state that has accepted jurisdiction.
Bush isn’t, Blair is. The Clinton administration, after much grumbling, signed the Rome treaty but the Bush administration announced that the US would not be party to the Rome Statute.

The chief prosecutor also pointed out that the ICC has a mandate to examine conduct during the conflict, but not whether the decision to engage in armed conflict was legal.

International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).

The available information established that a considerable number of civilians died or were injured during the military operations ... [but] did not indicate intentional attacks on a civilian population. Furthermore there was a lack of information showing clear excessiveness in relation to military advantage or indicating the involvement of nationals of states parties; therefore there was no reasonable basis for believing a crime within the jurisdiction of the court had been committed.

Although any crime within the jurisdiction of the court was grave, the Statute required "an additional threshold of gravity" because the court is faced with hundreds or thousands of crimes and will deal only with situations where they are committed as part of a plan or policy involving mass crimes.

The chief prosecutor ended by saying: "Effectively functioning national legal systems are in principle the most appropriate and effective forum for addressing allegations of crimes of this nature." In other words, don’t bother us.

It shows the sort of thing peace campaigners are up against. Of course, horrendous evidence has come to light since 2006. And just recently the ICC has begun to prepare for prosecuting the crime of aggression now that the states party to the Rome Statute have finally agreed on a definition.

The crime of aggression is defined as “the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression”.

An act of aggression is defined as “the use of armed force by one state against another state without the justification of self-defence or authorization by the Security Council”. It must constitute a manifest violation of the Charter of the United Nations.

But before we start jumping for joy, the court will have no jurisdiction to consider such cases before 2017. So the circle of buck-passing and general paralysis remains unbroken.

There can surely be no greater crime than going to war illegally or on a false prospectus. The same criminal trash who did so before are bored with their murderous adventures in Iraq and Afghanistan and sulking because they haven’t turned out to be as heroic as advertised. They are now impatient to do it all again only better – in Iran. Judging by the massive campaign of disinformation and reports of an imminent assault, they are determined not to be deflected from their evil path by the distant prospect of being hauled up before the ICC on charges of aggression. Assuming anyone is left standing by then.

If our elaborate national and international justice machinery won't take out this stinking garbage, which has offended our nostrils for too long, who will?

Assassination made “legal”

It wouldn’t surprise me if angry citizens resorted to the formation of a private “good riddance” service to get the job done. It conjures up a vision of members of the public, who feel themselves at war with these evil forces, queuing up for the services of an assassination bureau – an upright, socially responsible organization acting in the public interest to eliminate the world's worst tormentors.

“The Bush administration is believed to have sat down with the world expert in these matters [murder and assassinations] – Israel – to work out a legal framework for a new targeted-assassination policy."

Readers may remember the 1969 film “The Assassination Bureau”, a tongue-in-cheek romp set at the turn of the century a hundred years ago, a time for purging rotten monarchs and cruel tyrants. The bureau's hit team is for hire provided that Ivan Dragomiloff, its founder and mastermind, deems the targeted killing "socially justifiable" and there’s proof of the candidate's misdeeds.

The need for a purge hasn’t changed. And today assassination can be perfectly legal – ask Israel and the US.
Although US President Gerald Ford outlawed targeted political killings in 1976, White House and CIA lawyers claim that an intelligence “finding” makes all the difference. The right sort of finding puts things on a war footing and allows the US, for example, to assassinate so-called “terrorists”. In the wake of 9-11, all the Americans have to do is invent a “finding”, label the folk who stand in their way “terrorists” and claim the murder was an act of self-defence in a war situation, and they're home and dry.

Remember the US bombing Libyan leader Mu’ammar Gaddafi's home in 1986 in the hope of rubbing him out? And the Clinton administration firing cruise missiles at suspected guerrilla camps in Afghanistan in 1998? And Bush instructing the CIA to engage in "lethal covert operations" (based on an intelligence “finding”) to destroy Bin Laden and his al-Qaeda organization?
 
The Bush administration is believed to have sat down with the world expert in these matters – Israel – to work out a legal framework for a new targeted-assassination policy. Annoying pockets of resistance in the occupied Palestinian territories are answered with the wholesale imposition of Israeli-concocted warfare laws for the benefit of Israel's “self-defence”, which trample everyone else’s rights. This was just the ticket for Bush’s crooked nonsense as he pressed ahead with his war on terror.

Israel's liking for assassination goes back to pre-state days when such atrocities were committed against Arab and British targets by the Irgun, a Jewish terror organization that resorted to murder and mayhem for removing obstacles to the Zionist cause and driving the Arabs off their lands.
 
The Israelis cleverly bumped off master bomb maker Yahya Ayyesh and Hezbollah’s Imad Mughniyeh, “the Fox”, both in 1996. In 1997 Mossad agents, presumably fans of Shakespeare’s Hamlet, entered Jordan and injected a lethal nerve toxin into the left ear of Hamas boss Khaled Meshaal as he walked to his office. They were caught by the Jordanian authorities and King Hussein demanded Israeli Prime Minister Binyamin Netanyahu hand over the antidote. Netanyahu refused, but Bill Clinton intervened and forced the issue. Meshaal lived.

Assassination became official Israeli policy in 1999 to stop Yasser Arafat's militia, the Tanzim, firing on illegal Jewish settlers in the West Bank and Gaza. "If anyone has committed or is planning to carry out terrorist attacks, he has to be hit. It is effective, precise, and just," said Israeli minister Ephraim Sneh in 2001, apparently careless of the frequent lack of precision, the collateral casualties and the possibility that his intelligence is wrong.

That same year Israel's security cabinet gave the army carte blanche to kill anyone suspected of being involved in armed activity, meaning that mere suspects on a “list” became targets for extra-judicial execution.
 
The Israelis’ preferred method is the air-strike, which is often lacking in finesse. In 2002 an Israeli F-16 warplane dropped a one-ton bomb on the house of Sheikh Salah Shehadeh, the military commander of Hamas, in Gaza City killing not just him but at least 11 other Palestinians, including seven children, and wounding 120 others.
 
In 2004 Hamas's spiritual leader, Sheikh Ahmed Yassin, wheelchair-bound since the age of 12, and nine innocent bystanders were killed in a helicopter gunship attack. Yassin had survived an F-16 bomb blast the previous year. Israeli Prime Minister Ariel Sharon called him "the mastermind of Palestinian terror" and a "mass murderer", which was comical coming from a war criminal who ran Israel's death squad, Unit 101, and was found indirectly responsible for the massacres in the Sabra and Shatila refugee camps.
 
According to the Israeli human rights organization B'Tselem, 238 Palestinians have been assassinated and more than 160 innocents have died in the process, along with heaven knows how many injured or mutiliated, since the second Intifada (uprising) in 2000. "The use of state assassinations by Israel against Palestinian suspects is undermining the rule of law and fuelling the cycle of violence in the region," warns Amnesty International.

The finger of suspicion points to Israel for the murder of Lebanese Prime Minister Rafiq Hariri in 2005. We’ve recently seen Mossad’s assassination of a Hamas commander in Dubai (their hit team using stolen British passports) and the execution of several crew members of the Mavi Marmara while on a humanitarian mission in international waters.
 
The US State Department similarly describes its own hits on Al-Qaeda as "legal and necessary".

If universal jurisdiction is not made to work then other means will probably be found. Assassination may not remain the private playground of shadowy CIA and Mossad operatives for much longer, so war criminals had better start looking over their shoulder.

A lamp-post awaits them.

Stuart Littlewood is author of the book Radio Free Palestine, which tells the plight of the Palestinians under occupation. For further information please visit www.radiofreepalestine.co.uk.

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