Justice for Afghanistan?

The International Criminal Court is seeking arrest warrants against senior members of the Taliban regime on the grounds that their persecution of women is a crime against humanity:

The international criminal court’s chief prosecutor has requested arrest warrants for the Taliban’s supreme leader and Afghanistan’s chief justice on the grounds that their persecution of women and girls in Afghanistan is a crime against humanity.

It marks the first time the prosecutor has built a case around systemic crimes against women and girls, legal experts say. It is also a rare moment of vindication for Afghan activists, who over the last three years have often felt abandoned by the international community even as Taliban oppression deepened.

[...]

Karim Khan, the ICC chief prosecutor, said in a statement that the Taliban’s supreme leader, Haibatullah Akhundzada, and chief justice, Abdul Hakim Haqqani, are “criminally responsible” for ongoing persecution of girls, women, the LGBTQ+ community and their allies.

Good. And not just because of Afghanistan. There's also Iran and Saudi Arabia, and of course the US is increasingly going full-Gilead. And while none of those countries are parties, establishing a principle in international law that gender persecution is a crime against humanity will still enable their regimes to be held to account in future under other legal jurisdictions. Members of the Republican Party might not be able to take European holidays ever again.

Justice for Gaza!

It finally happened: the International Criminal Court prosecutor is seeking an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for war crimes in Gaza:

The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant.

Karim Khan said his office had applied to the world court’s pre-trial chamber for arrest warrants for the military and political leaders on both sides for crimes committed during Hamas’s 7 October attack and the ensuing war in Gaza.

[...]

In an extraordinary rebuke of Israel’s treatment of Palestinians and its conduct in the war in Gaza, Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. Monday’s statement notably does not include any Israel Defense Forces (IDF) officials, such as its chief of staff, Lt Gen Herzi Halevi, focusing instead on political decision-making.

The latter seems like a significant omission, since they're the people actually doing the war crimes. But maybe they're next in the queue?

Meanwhile, the question for Aotearoa: when are we sanctioning Netanyahu and his criminal regime? We have rightly sanctioned Putin and his cronies for their illegal war in Ukraine. We can hardly do less to a genocidal war criminal.

Send Putin to The Hague

The International Criminal Court has formally opened an investigation into war crimes in Ukraine, after being asked to by 39 countries:

The prosecutor of the international criminal court (ICC) in The Hague has announced that he will launch an investigation into possible war crimes or crimes against humanity in Ukraine.

Karim Khan said that although Ukraine was not a member of the ICC, it had awarded jurisdiction to the court. He said that there was grounds to open an investigation based on a previous preliminary investigation on Crimea and the Donbas published last year, and on current events in Ukraine.

“I have already tasked my team to explore all evidence preservation opportunities,” Khan, a British lawyer, said.

Which is good, because war crimes and crimes against humanity are undoubtedly being committed by Russian forces in Ukraine, and they need to be prosecuted. But thanks to a quirk of the Rome Statute, the real crime here - the crime of aggression ( "the supreme international crime" which "contains within itself the accumulated evil of the whole") - will not be part of the investigation. Neither Ukraine or Russia is a party to the Rome Statute (though Ukraine has accepted jurisdiction), so the ICC cannot prosecute for aggression. Which means firstly, that we need to reform the Rome Statute so that it can; and secondly, that until that happens, we will need a special-purpose tribunal to prosecute this crime and hold Putin accountable.

A victory for international justice

Back in 2015, Palestine became a party to the Rome Statute of the International Criminal Court. In 2018, it complained to them about war crimes carried out on their territory by occupying Israeli forces. And now, the ICC has ruled that it has jurisdiction and can investigate:

The international criminal court has announced that it has jurisdiction in Palestine, clearing its chief prosecutor to investigate alleged atrocities despite fierce Israeli objections.

Israel’s prime minister, Benjamin Netanyahu, condemned the ruling and said the country would “protect our citizens and soldiers in every way from legal persecution”.

[...]

Bensouda, a Gambian lawyer, has said she would investigate both the Israeli military as well as Palestinian armed groups, including the Gaza-based Hamas faction, which has been accused of “intentionally directing attacks against civilians”, according to her office.

Good. Both Israel and Hamas have carried out indiscriminate attacks against civilians. In addition, Israeli blockades deprive palestinians of the necessities of life, while its legal structure is essentially an apartheid regime. The only way these crimes against humanity will end is when their perpetrators are prosecuted and held to account. And the fact that the Israeli government is fighting so hard to stop that from happening tells us everything we need to know: they're guilty, and they know it.

Justice for Afghanistan?

The International Criminal Court has launched a war crimes inquiry into America's war in Afghanistan:

Senior judges at the international criminal court have authorised an investigation into alleged war crimes and crimes against humanity in Afghanistan, overturning an earlier rejection of the inquiry.

The ICC investigation will look at actions by US, Afghan and Taliban troops. It is possible, however, that allegations relating to UK troops could emerge in that process.

[...]

The ICC judges also approved that the scope of the investigation should include CIA black sites operated in Poland, Lithuania, and Romania, where detainees were taken.

The latter is significant, since it squarely puts criminals like Ashcroft, Rumsfeld, and Yoo in the dock, alongside the murderers, rapists and torturers in the US military.

The US, of course, is losing its shit: while purporting to support international justice, they in practice oppose any suggestion of it being applied to them or their allies. The ICC is only supposed to investigate countries they bomb, not whether bombing is justified. But if it is to mean anything, then the ICC must conduct a robust and thorough inquiry into these allegations, no matter how the US retaliates. Otherwise, it will simply be a vehicle for victor's justice, and lose all credibility.

Contempt for international justice

The International Criminal Court is the primary enforcer of international human rights law and norms against war crimes and crimes against humanity. So naturally, the United States is threatening its judges:

John Bolton, the hawkish US national security adviser, has threatened the international criminal court (ICC) with sanctions and made an excoriating attack on the institution in a speech in Washington.

Bolton pushed for sanctions over an ICC investigation into alleged American war crimes in Afghanistan. He also announced on Monday the closure of the Palestine Liberation Organization (PLO) office in Washington because of its calls for an ICC inquiry into Israel.

[...]

He said the Trump administration would “fight back” and impose sanctions – even seeking to criminally prosecute ICC officials – if the court formally proceeded with opening an investigation into alleged war crimes committed by US military and intelligence staff during the war in Afghanistan or pursued any investigation into Israel or other US allies.

Bolton vowed that the United States would retaliate by banning ICC judges and prosecutors from entering the US, imposing sanctions on any funds they had in the States and prosecuting them in the American court system.

“If the court comes after us, Israel, or other US allies we will not sit quietly,” he said, also threatening to impose the same sanctions on any country that aided the investigation.

Afghanistan has been a party to the ICC since 2003, and any crimes against humanity that happen on its territory can be investigated or prosecuted by the court. The actions of US soldiers in Afghanistan are within the court's jurisdiction.

This is a clear attempt to interfere with the court's work and deter its investigation. If this happened in New Zealand, we'd call it contempt of court and perversion of the course of justice. But there are no similar powers on the international stage, nothing that signals to states that threatening international judges is beyond the pale. Clearly, we need to create some. As for the US, it is behaving more and more like a rogue state, and the international community needs to act to bring it back within the international legal order. Sanctions against US government officials like Bolton would be a good start...

Justice for Iraq?

In 2003, British forces joined the US in invading Iraq. The invasion was followed by serious allegations that they had abused and tortured prisoners in their custody, resulting in at least one death. While the UK government compensated several victims, they have generally tried to impede any investigation or prosecution, shutting down the Iraq Historic Allegations Team, while secretly pressuring the Solicitors Disciplinary Tribunal to try and have a law firm which represented their victims punished. But now, the game is up, with the chief prosecutor of the International Criminal Court announcing that the claims of war crimes by British troops have a reasonable basis:

The chief prosecutor at the international criminal court in The Hague, Fatou Bensouda, has declared there is a “reasonable basis” to believe that UK soldiers committed war crimes against detainees during the Iraq conflict.

The announcement on Monday means the ICC will press ahead with its investigation into claims that British troops abused and unlawfully killed prisoners after the US-led invasion.

It came in a 74-page report delivered in New York to the annual assembly of states parties that participate in the jurisdiction of the court.

In her conclusion on the long-running inquiry into the role of British troops in Iraq between 2003 and 2008, Bensouda said: “The [prosecutor’s] office has reached the conclusion that there is a reasonable basis to believe that members of the UK armed forces committed war crimes within the jurisdiction of the court against persons in their custody.”

Hopefully this means the ICC will investigate and prosecute the offences the British have refused to properly investigate and prosecute themselves. Which means we might finally see some justice for Iraq.

South Africa pisses on the rule of law

Sudanese president Omar al-Bashir is a wanted war criminal, the subject of two ICC arrest warrants for war crimes and crimes against humanity. Over the weekend, he attended a summit of African leaders in Johannesburg. The South African government granted him immunity. Human rights activists went to court seeking an order for his arrest, and won an injunction forbidding him from leaving the country. Today, the South African government ignored that and allowed him to depart:

The Sudanese president, Omar al-Bashir, has flown home, leaving South Africa in defiance of a court order that he must remain to face an international arrest warrant.

[...]

As Bashir’s plane took off from Waterkloof military airfield outside Pretoria, the local high court was hearing arguments over an application that would have forced the South African government to arrest him.

A South African judge criticised the government for allowing Bashir to leave. “The conduct of the respondents to the extent that they have failed to take steps to arrest and detain the president of Sudan, Omar al-Bashir, is inconsistent with the constitution of the Republic of South Africa,” Dunstan Mlambo said.

The high court ruled after Bashir’s departure that he should have been detained.

So, we have a government defying its own courts to protect a war criminal. There's a name for people who do that: accessories. And they should be tried for it.

New Fisk

When will Palestinians learn? Turning to international law isn't the answer — just ask America and Israel
Retrial for Al Jazeera journalists: The 'gates of hope' may have opened, but the media is still shut out of Egypt

Justice for Iraq

The International Criminal Court is investigating the UK for war crimes in Iraq:

Allegations that British troops were responsible for a series of war crimes after the invasion of Iraq are to be examined by the international criminal court (ICC) at The Hague, the specialist tribunal has announced.

The court is to conduct a preliminary examination of what have been estimated to be 60 alleged cases of unlawful killing and claims that more than 170 Iraqis were mistreated while in British military custody during the conflict.

British defence officials are confident that the ICC will not move to the next stage and announce a formal investigation, largely because the UK has the capacity to investigate the allegations itself.

They're probably right. However, it does mean that there will be a lot of scrutiny on those investigations, which in turn is going to limit their ability to whitewash their crimes. The Iraq Historic Allegations Team will actually have to investigate, rather than make excuses, and the Attorney-General will have to grant permission to prosecute, rather than block it to defend Britain's reputation. The ICC won't be delivering justice itself, but their oversight will force the UK to deliver it for them. And that is how the system is supposed to work.

International justice for North Korea

The Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea has found that the North Korean regime is committing crimes against humanity on a scale not seen since Nazi Germany:

A prisoner is forced to haul emaciated corpses up a mountain ready for burning so their ash can be used as fertiliser but sees that the flesh on their faces has been gnawed away by rats. Horrified inmates watch as a guard angered by the crying of a baby forces its mother to drown it face down in a bucket of water.

These are just two in a litany of alleged “unspeakable atrocities” described in a nearly 400-page report released by an independent UN panel of inquiry into the North Korean regime and its decades-long subjugation of its citizens through incarceration, enforced starvation, torture, rape, enslavement and sexual abuse. “Hundreds of thousands” of detainees have lost their lives over 50 years, it claims.

Presenting the report in Geneva, the panel chairman, Michael Kirby, said some of the crimes described evoke those committed by the Nazis, like forcing prisoners to load corpses into pots for burning. “At the end of the Second World War so many people said ‘if only we had known... if only we had known the wrongs that were done in the countries of the hostile forces’,” he said. “Well, now the international community does know... There will be no excusing of failure of action because we didn’t know.”

The Commission of Inquiry is recommending that the UN security Council refer the North Korean regime to the International Criminal Court, or in the event of a big power veto, for the UN General Assembly to create an ad-hoc tribunal to do it instead. I agree. The international community has looked the other way on atrocities like this for too long; its time for international justice to prevail.

New Fisk

Is The Hague making a mockery of justice so the CIA and MI6 can save face?

Indiscriminate killing in Syria

In Syria, protestors have been taking to the streets to demand democracy and freedom. The government has responded with arrests, beatings, torture, and shootings. Their latest tactic? Line up tanks and just shell cities where protestors live.

This is totally indiscriminate and disproportionate. It is also criminal. At the moment the International Criminal Court is seeking to prosecute Libyan officials for crimes against humanity over their indiscriminate slaughter of civilians. We can demand no less for the Syrian regime.

International justice for Gaddafi?

Earlier in the week, the UN Security Council voted to refer the slaughter of protestors in Libya to the International Criminal Court. Today, the ICC's head prosecutor, Luis Moreno-Ocampo, has confirmed that Libyan dictator Muammar Gaddafi and his sons will be investigated for crimes against humanity.

This is good, but at the same time it points out the weakness in the ICC. International justice should be universal, and not subject to the political veto of the Security Council. Otherwise, it looks like a political weapon, to be used against those who defy the international order, rather than an impartial system of law which applies equally to all.

Imperfect justice is better than no justice at all. But we should keep pushing for real justice as well - justice that applies to Bush and Blair as well as Gaddafi.

Israel committed war crimes in Gaza

That's the conclusion of the UN Human Rights Council's fact-finding mission. Israeli forces used disproportionate force, imposed a blockade which amounted to collective punishment, and deliberately targeted the civilian population. Their military operations were

carefully planned in all their phases as a deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population.

The mission's leader, South African judge Richard Goldstone, concluded that these actions amounted to "war crimes, and possibly crimes against humanity". The same charge is levelled at Palestinian groups for deliberately attacking civilian targets.

In both cases, Goldstone recommends that the Security Council require both Israel and the Palestinian Authority to investigate these crimes, and report in six months about their progress. If they do not come up to scratch - if crimes are denied or whitewashed, and if there is no serious investigation and good-faith prosecution - then the relevant parties should be referred to the International Criminal Court. Its a sensible solution. The way to end war crimes is to end impunity for war criminals. If these countries will not enforce international (and their own) law, then the international community will have to do it for them.

Charged

For the past six years the world has been crying out for justice for Darfur. Now the International Criminal Court has responded, indicting Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity and issuing a warrant for his arrest.

Bashir is the first sitting head of state to be charged by the ICC, and bringing him to justice will not be easy. He will have to pay a visit to a foreign country which takes international justice seriously enough to arrest him and extradite him to face trial The Hague. Or Sudan will have to replace its government with one which respects international law and human rights - a dificult task in a country which does not have free elections. But the charges are not going to go away, and so there is some hope that Bashir will be brought to justice - even if we have to wait twenty years to do it.

Justice for Gaza?

Despite the Israeli's best efforts, there may yet be justice for their recent indiscriminate campaign against Palestinian civilians in Gaza. The International Criminal Court is currently investigating their actions, despite neither Israel or the Palestinian Authority being parties. And they are expected to decide whether they have formal jurisdiction within "months, not years":

The international criminal court is considering whether the Palestinian Authority is "enough like a state" for it to bring a case alleging that Israeli troops committed war crimes in the recent assault on Gaza.

The deliberations would potentially open the way to putting Israeli military commanders in the dock at The Hague over the campaign, which claimed more than 1,300 lives, and set an important precedent for the court over what cases it can hear.

[...]

[S]ources at the ICC say it is considering two potential tracks that would permit it to investigate what happened in Gaza. As well as determining whether the PA is recognised internationally as a sufficiently state-like entity, the head of jurisdictions in the office of the international criminal court's prosecutor, Luis Moreno-Ocampo, is looking at whether the court can consider war crimes allegations on the basis of the dual nationality of either victims or alleged perpetrators whose second passport is with a country party to the court.

Meanwhile, the Red Cross, in their role as guardians of the Geneva Conventions, has made a clear case for war crimes committed by both Israel and Hamas. Unfortunately, it will be presented privately to the two parties, rather than publicly with their leaders standing in the dock.

If we want to end these sorts of atrocities, we need to start by holding political and military leaders legally accountable for the orders they give. The international legal framework for doing so exists; all we need is the political will to follow through with it, to choose justice over expedience and unaccountability.

Released

Thomas Lubanga is one of the world's nastier war criminals. As leader of the Union of Congolese Patriots, he was responsible for widespread human rights abuses, including the torture, murder and rape of civilians and the use of child soldiers. Two years ago he made history as the first person to go on trial before the International Criminal Court in The Hague, on charges of "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities". And today, the ICC has issued a stay of proceedings and ordered his release. The reason? In their zeal to secure a conviction, the prosecution misused confidentiality agreements to withhold possible exculpatory evidence from the defence, resulting in

the trial process [being] ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.

The lesson in this, stressed by the court in its decision [PDF] is that you have to do things properly, otherwise a war criminal may go free. It's a hard lesson to learn, and I hope that the ICC prosecutors will not have to be reminded of it more than once. In the meantime, they've betrayed Lubanga's victims and the people of the Congo. Hopefully they'll think of that before they try such games in the future.

A landmark day for international justice

Thomas Lubanga is the leader of the Union of Congolese Patriots, an armed militia from the Democratic Republic of the Congo which is accused of widespread human rights abuses, including the torture, murder and rape of civilians and the use of child soldiers. Today, he made history as the first person to go on trial before the International Criminal Court in The Hague, on charges of "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities".

He's a monster fully deserving of prosecution and punishment for his crimes, but he's also a little fish. But hopefully his trial will lay the groundwork for the ICC to start going after some of the bigger fish as well.

The Axis of Impunity

One of the positive steps in international law in recent years has been the establishment of the International Criminal Court, a permanant standing court to try cases of genocide, war crimes, and crimes against humanity. Unfortunately, since its inception, the court has been virulently opposed by the United States, which fears that its soldiers (and more importantly, its political leaders) might be held accountable for any atrocities they commit or order to be committed (such as, say, the razing of Fallujah, the use of indiscriminate weapons in civilian areas, or a policy of torture approved at the highest levels). The chief mechanism used by the US to undermine the court has been a series of "Article 98 agreements" - bilateral agreements exploiting a loophole in the ICC's statute to exempt American citizens from the court's jurisdiction. The US has used strong-arm tactics to extract these agreements from weaker nations, including the passage of the American Servicemembers' Protection Act (AKA the "Invasion of the Hague Act"), which requires the US government to cut off military aid to countries which refuse to sign such an agreement. So far, payments have been withheld from 35 countries (mostly in Eastern Europe and South America) in an effort to get them to toe the American line.

So, who has signed these agreements? Below is a map of 96 of the reported hundred countries who have signed an impunity agreement with the US. The primary source is a list [DOC] compiled by Citizens for Global Solutions:

This is the axis of impunity. And its remarkable how well it tracks both poverty (meaning exposure to American economic threats) and shitty human rights records. What's also remarkable is that the US has been signing reciprocal agreements with the shittiest of the shitty, in effect promising to protect their rulers from international justice. One of those agreements is with Rwanda; if it and the ICC had been in place when the Rwandan genocide occurred, the US would today be providing a safe haven for genocidaires.

One other point in passing: Citizens for Global Solutions' list includes notes on which countries have firmly rejected any such agreement. And there's a striking absence from that section: New Zealand. I had expected my own government, with its stated commitment to human rights and international law, to behave far better than that...