The International Criminal Court and the "Black Hole"

The International Criminal Court and the “Black Hole” by Steve Clemens. October 28, 2010

Professor/Lawyer Peter Erlinder sat in front of us with his eyeglasses perched on his upper forehead very reminiscent of another lawyer of the recent past who also blazed a path for justice in defending the unpopular and marginalized: William Kunstler. While Kunstler actually defended the Chicago 8 after the Democratic National Convention in 1968, Erlinder was not part of the recent RNC 8 case protesting another American war of imperialism – but many of his friends and colleagues were. Instead, Erlinder was sitting in a jail cell in Rwanda as the result of his attempts to defend a candidate for President of that nation from charges of “genocide denial”.

It’s been only four months since his release for “health reasons” (and significant pressure from the U.S. State Department and the world community) and Erlinder’s talk at the Mad Hatter’s Coffeehouse on Tuesday evening was designed to give the 20 or so of us in attendance a broader context to understand what is happening in east-central Africa.

Before addressing the International Criminal Court (ICC), Professor Erlinder gave us a quick update on Rwanda. After his arrest and imprisonment and the attention of the world placed on this small African nation sandwiched between The Congo, Burundi, Tanzania, and Uganda, a Green Party candidate for President was beheaded, a prominent journalist was killed, and there was an assassination attempt on the life of a former Rwandan General who had fled to South Africa. On August 26th, a 600-page report from the United Nations Commission on Human Rights (aka The Mapping Report) very critical of the Kagame regime’s actions in the DRC (Congo) was leaked. This was only weeks after Kagame’s reelection with more than 90% of the vote – often a telltale sign of a rigged election.

With the release of the leaked UN report, Erlinder said, “the story is starting to unravel” – meaning that for the first time the world media is beginning to seriously reexamine the dominant story-line about the Rwandan genocide in the 1990s and the role Kagame and his Tutsi rebel army, the Rwandan Patriotic Front or RPF, may have played in it. The U.S. White House recently issued their first-ever critical statement about the Rwandan administration. Kagame just signed a military agreement with the Chinese. And Victoire Ingabire, Erlinder’s former client and Presidential candidate, was rearrested - this time for “material support of terrorism” and jailed in the same cell where Erlinder had been held. She has just been denied bail and was shipped to one of Rwanda’s notorious prisons.

With the recent FBI raids in Minneapolis, it seems like Rwanda is learning quickly to imitate its imperial masters with phony charges meant to intimidate others.

To understand the role and history of the International Criminal Court, Erlinder told us to look at the Nuremberg and Tokyo Tribunals after World War II if we really want to explore how the ICC reinforces American foreign policy. Both of these post-war Tribunals were designed to condemn the vanquished; they weren’t designed to be even-handed in looking at war crimes, they were legitimated by military victory and provided only “victor’s justice”.

When the United Nations Charter was established, there was no vehicle within it to hold individuals accountable for war crimes or egregious human rights violations, just those of nation-states through the vehicle of the World Court. Erlinder claimed that it was Stalin rather than Churchill or FDR/Truman who pushed for trials of Germans and Japanese in order to delegitimize the vanquished. With the Security Council’s veto power held by the five “permanent members”, the US and the UK held the Soviets at bay – and visa-versa - for much of the next 40 years.

After the collapse of the Soviet Union at the end of the 1980s, the US and UK had much freer rein because the Soviets were too weak and China was just becoming an economic and military power. Within this vacuum, the US and UK initiated an International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and a similar tribunal for Rwanda (ICTR) in 1994. They were justified under Chapter 7 of the UN Charter that allows for peacekeeping forces but Erlinder contended that the US/UK wanted to have “peacemaking” powers as well – thus the Tribunals. However, these tribunals were designed on the adversarial system and clearly limited in scope of which crimes to prosecute – only those by “them”, NOT by NATO or other allies of the US like Kagame.

By the end of the 1990s, the UN sought to establish a more permanent vehicle to prosecute individuals and the Treaty of Rome in 2000 established the International Criminal Court. However, once again with the initiation of the US/UK domination, the ICC severely restricted who could initiate cases: only nation-state signatories or the UN Security Council, NOT non-governmental organizations (NGOs) like Human Rights Watch or Amnesty International. Erlinder claims it was set up to prosecute rebel groups but not state forces.

Although President Clinton signed the Treaty before leaving office, he did not submit it for ratification with the US Senate. After George W. Bush succeeded him, he “unsigned” the Treaty to prevent any Americans from being prosecuted by a world body. Even though the US cannot bring cases before the ICC as a non-signatory, as a powerful permanent member of the Security Council, it carries the ability to initiate cases against those with whom we wish to oppose. So, through the Security Council, the US can refer cases to the ICC without risking any prosecution themselves!

Erlinder described the power of the US in the world community by using the language initiated by physicist Stephen Hawking: a “black hole” which sucks everything within its gravitational pull into its orbit, eventually absorbing it with its power. Like the black cylinder at the Science Museum where kids roll a coin around and around until it is “swallowed up” at the center, The US uses its role as “the world’s only superpower” to dominate anything within its ever-expanding sphere. Everyone is aware of its power and influence even as the empire is collapsing. Still it sucks everything into its gravitational pull. What a great metaphor!

A perfect example of this occurred when Carla Del Ponte, the Chief Prosecutor for ICTY and later ICTR chose to broaden her investigation of war crimes and crimes against humanity to include the actions of Kagame and his rebel forces. She developed evidence that Kagame should be indicted for his role in the assassinations of Rwanda’s and Burundi’s Presidents in April of 1994 which triggered much of the genocide which followed but was summarily dismissed from her position soon after she visited Washington, DC and was told to drop the investigation. She said she “worked for the UN, not the US” but soon found out otherwise when she refused to stop her investigation, mistakenly thinking that the Tribunal was after the “truth” rather than just to persecute political enemies. Erlinder pointed out that “everyone” connected with the Tribunals or the ICC know what happened to Del Ponte - and why - and thus won’t try to challenge the limits the US tries to place against prosecution of those who do our bidding. In fact, the prosecutor who replaced her in 2003 has only prosecuted members of the defeated group of Hutus.

We know about Carla Del Ponte because her memoir, Madame Prosecutor, was published in February 2009. However, she has since been appointed as the Swiss Ambassador to Argentina and her government has ordered her not to talk about what she wrote in her book.

To date, every defendant charged by the ICC is African – and all of them find themselves on the “other side” from US interests. After the US pressured the ICC (through the Security Council) to indict the leader of Sudan (another country that refused to sign or ratify the Treaty), all the African presidents unanimously voted not to cooperate with the ICC.

The struggle to restrain power through law can be traced back to the Magna Carta forced on King John by those he was oppressing. This process has had fits and starts. In war, Erlinder observed, there are always cases of crimes on both sides. When a Tribunal or Court only looks to one side of the ledger, one can’t get justice. There is an imbalance built into the ICC that gives more power to nation-state actors than others.

While leaving much of the detailed story of Rwanda’s genocide for another talk to be given two nights later at William Mitchell Law School where he is a Professor, Erlinder did observe that most Americans know about Rwanda through the camera lens of the movie “Hotel Rwanda”. (Erlinder is friends with Paul Rusesabagina, the real-life hero of the movie that features actor Don Cheadle in that role and he is a member of the nonprofit board Rusesabagina established.) As “good a story” as the movie is, the law professor said, “ ‘Hotel Rwanda’ is as accurate about the Rwandan civil war as ‘Gone With the Wind’ is about the US Civil War.” If you only see the latter movie, you come to think “the damn Yankees” and General Sherman are the real villains and slavery wasn’t all that bad.

Erlinder concluded with the observation: if you ultimate goal is to learn the truth of what happened and to work to heal the nation, going the route of a Tribunal will not get you there. Tribunals are just good for condemnation and retribution. Instead, take the path modeled by South Africa – a Truth and Reconciliation Commission. But there is a trade-off – it will often mean that the perpetrator will not be punished (even though he/she will probably be shamed). But, Erlinder continued, “righteous indignation” will almost never get the whole story right. Erlinder didn’t say it but the thought came to my mind: in order for that to work, one also needs a Mandela-type to order it and a Bishop Tutu-type of leader to run it. Now that they are both retired, the world could use a few more like them.

Punishment To Fit the Crime?

Punishment To Fit The Crime? By Steve Clemens. October 2010

In the past two years, I have been given the “opportunity” to do court-ordered “Community Service”. Often the sentence is to pay a monetary fine (plus “court costs”) and then the Judge allows a substitution of community service to be performed in lieu of paying the fine. Historically, community service was a way for poor people to be “punished” for their conviction in court when they were unable to pay the fine. Today it is sometimes used to assuage the “convictions” of protestors who object to paying money to the government (the fine) as a “tax” on their conscience.

So, how does a Judge determine the amount of community service to equal the fine – or, how much community service should be required to heal the “breach of the peace” which led to the guilty verdict in the courtroom?

Years past my position was clear: don’t pay the fine or agree to community service when convicted of the “offense” of acting on your conscience. Most of my convictions were resulting from “trespass” charges – usually on the property of an activity which should not exist: the plant assembling nuclear bombs, a plant building first-strike submarines, a military base training soldiers in techniques designed to sew terror in the hearts and minds of Latin Americans. The list goes on and on.

Sometimes the arrest comes at a public place in protest of a specific activity or policy advocated by the resident office holder: at the White House against the current war or practice of torture, at the Capitol in protest of taking from the poor to give to the military, at the Immigration Office to protest deportations. Yet other morally legitimate things also happen at those sites: new immigrants are welcomed as citizens, policies are passed to help protect the environment, and decisions are made to end discrimination against marginalized groups and individuals.

One of the things I’ve learned from U.S. history is that a lot of the significant change (for the better) that we’ve seen has been principally brought about politically because of citizens taking to the streets or lunch counters in protest, risking arrest and imprisonment. Women’s suffrage, the 5-day workweek, civil rights, human rights, shortening wars of aggression, even preventing the development or deployment of some weapon systems has been facilitated by acts of conscience and protest, mostly through nonviolent action.

Under our present “justice” system, we’ve evolved theories which primarily see the State (or city or federal government) as the “victim” of the “crime” for which we are arrested. This often leads to the notion in a trespass case that the “owner” of the property (often a war merchant or an elected official who supports the wars or other evil policies) is at most peripheral to the case to the Judge but absolutely central for the defendant.

Therefore Judges often choose not to listen to arguments about intent or motive from the defendant because to do so is too threatening to the established order. The Courts mostly see their role in protecting the establishment, the status quo – that is from where their power emanates. Not many judges are willing to face the fact that the Nuremberg Tribunals also convicted German judges for their roles in the perversion of justice during the reign of the Nazi Party.

At what point do judges ever look back on their own history to see what should have been done differently? Are there any judges alive today who now wish they’d handled Martin Luther King differently when he stood before them in the dock? Plans are underway to erect a monument to him on the Washington Mall yet there are still probably a few of the lifetime-appointed Federal Judges who still defend sending him to jail.

When we finally (and we will) abolish nuclear weapons and give human rights to sexual minorities, society will have a different take on the Berrigan brothers and GLBT/queer activists. But until that day, principled protesters will be cuffed and shackled and hauled before judges for their civil disobedience. Sometimes the result will be jail or prison; more often it will be a fine, probation, and possibly “community service”. What community service is appropriate when the charge is pointing out that the emperor has no clothes?

After blocking the ICE Center to prevent undocumented immigrants from being deported, I was assigned work picking up trash and mowing grass at public boat landings in the wealthy suburbs. The only connection to the “crime committed” is that often those tasks are done by low-wage workers, many of who are new arrivals to this country or those who have been marginalized for decades if not centuries.

The protest against the wars during the Republican National Convention resulted in 24 hours of community service – this time of my own choosing, as long as it was in Ramsey County. I counted my many hours transporting Iraqi visitors around the Twin Cities for that sentence. At least there was a connection for me between opposition to the war and working to heal some of the wounds by acts of reconciliation with those who may have been our “enemy”.

Arrested at the headquarters to the local war profiteer Alliant Techsystems last fall, my judge was very creative: he told the four defendants about his sister who had polio as a child and how local Shriners and Children’s Hospitals gave her great care. He told us after hearing our testimony that we cared deeply for victims of indiscriminate weapons, especially children, so he recommended we do our community service at one of those hospitals – which we did with great joy. This hospital is now providing free treatment to a young Iraqi boy who lost his leg during the war.

Most recently, my judge in Kansas City allowed me to perform my 10 hours of community service (for protesting the use of city funding to build a nuclear weapons plant) at a place of my choosing, adding, and “I hope at least some of it will be here in our city”. I chose to work with a Catholic Worker community that lives, works, and serves with the homeless of Kansas City – the population that should have received the tax monies that were earmarked for blighted neighborhoods but ironically spent on a weapons plant that could wreak blight on the entire planet.

While I like the sense of symmetry that my last three stints of community service engendered, whenever possible I’d prefer a jail sentence over a fine or “sentenced-to-service”. There is something powerfully symbolic about being in jail when one’s society and government are out of whack. Thoreau’s challenge to his friend Emerson – “Why aren’t you in here with me?” – is a testament of marching to the beat of a different drummer. Martin’s call for us to become “drum majors for justice” continues to beckon us to risk jail or community service, even when others say it is “unwise or untimely” like his critics claimed when he was in the Birmingham Jail.

I don’t expect to receive a posthumous Monument on the Capitol Mall – but I do want to be part of those struggling to become the “beloved community” that Martin dreamed of and embodied – that would be a true “community service”!

Blinded By "The Law"

Blinded By “The Law” by Steve Clemens. October 19, 2010

Judge Teresa R. Warner, perched above the packed Courtroom 131 B in Ramsey County Courthouse. A special hearing had been called to allow the 4 remaining defendants in the notorious RNC 8 case to agree to settle their cases with a plea bargain, thus avoiding the 4-6 week jury trial scheduled for beginning next week. She listened as each of the four young men pled “guilty” to either a charge of “conspiracy to commit damage to property in the third degree” or “conspiracy to riot in the 3rd degree”.

She meticulously insisted that each of the defense attorneys go over what rights the defendants were “giving up” in exchange for their pleas: the right to a jury trial, the right to confront the witnesses, the right to testify oneself, … and on and on – as though these “rights” could somehow even the scales of “justice” when the State retained almost unlimited resources in the desire to win a conviction.

The prosecutors and the defendants (and their lawyers) had agreed to a plea bargain over the weekend: in exchange for a guilty plea, the State would ask for no jail time, no restitution, credit for “time served” after arrest, and agree not to force them to testify against other defendants about incidents around the Republican National Convention in September 2008. They recommended that those pleading guilty be given 100 hours of “Community Service” and requested a 2-year probation period be placed on each of the four.

Each of the Defense lawyers asked the Judge to “stay” (suspend) execution of her sentence for a shorter period of probation until the community service could be performed. Noting that each of the defendants had limited income and had all qualified for court-appointed attorneys due to their economic status, they also asked any fines be limited as well.

One-by-one, each of the four defendants came before the Judge, accepted the guilty plea, and was then asked if they had anything further to say before they were sentenced. Nathanael Secor stated that this case was about the criminalization of dissent. He said that while he was guilty of violating the law, local law enforcement personnel did “many acts” which were also illegal and have not been charged. He commented about the police being part of a network of “social control” which allowed the furtherance of “colonial wars”. He reiterated his desire to “abolish institutions of domination”.

Judge Warner, in preferencing her sentence, stated that she was sentencing Mr. Secor for “his acts, not his political beliefs or motivations”. She stressed she was following the law; he pled guilty to violating the law and was being sentenced for his actions, not his beliefs. After giving him “180 days in jail and a $1000 fine” she then said she would stay the execution of that sentence in exchange for one year of supervised probation (remaining law-abiding with no same or similar offenses and abiding by all the rules of the probation), 100 hours of community service, no more than 10 hours per month for 10 months, no restitution, would not be compelled to testify against others in related cases, and fined $200 plus court cost fees of $81.

Max Specktor was the next defendant to stand before Judge Warner. After his guilty plea, he stated that “conspiracy is only part of the story.” He decried the “spectacle of democracy” that we claim is practiced in the U.S., claiming he preferred to live in a more “decentralized world”. He preferred to address real economic needs he sees: “real needs versus conspicuous consumption”. “I refuse to sleep-walk through life”, he continued. He recognized that he and other defendants have had a lot of privileges in life, including being able to speak on their own behalf while “many too others lack those privileges.” He ended by saying he was committed to help “build the world we wish to see.”

Again, Judge Warner went out of her way to claim her sentence “is based on your acts, not your motivation.” It is what she feels is “appropriate, fair, and just.” It is not about “political opinions or ideals”. To quote Shakespeare’s Hamlet, “Methinks the Lady doth protest too much.”

This case is all about politics. From pre-emptive house raids to ridiculous trumped-up felony charges alleging “terrorism”, it has been from start-to-finish about “politics”. It was about politics to dismiss the charges against both the women and another male defendant. The County Attorney who brought the initial charges was running for Governor as a tough law-and-order candidate. And then there is the real reason any charges were brought at all: Sheriff Bob Fletcher. Most of what he does is political – playing to his political base while mired up to his eyeballs in corruption. His press conferences just prior to the Republican National Convention were designed to ramp up fear and hysteria about “anarchists” coming to his city to create mayhem. For me, the biggest tragedy of this plea bargain deal is that we won’t get to see Sheriff Fletcher in the witness chair, facing committed movement lawyers about what he did and why before and during the Convention.

But the most significant reason this case is all about politics is the utter silence in the courtroom about the grossest violation of law: what the Nuremberg Tribunal calls the supreme international crime: “to initiate a war of aggression”. The main reason thousands of citizens came to protest at the RNC centered around two wars initiated by the President of the United States in contravention of the United Nations Charter. For the court to pretend to strictly follow “the law” while ignoring the context of the war is not only disingenuous but absurd. The fact that both these wars continue (and continue to be ignored by both the media and the courts) is an indictment on our entire society.

Spector’s sentence differed only in the fine amount: $500 rather than $1,000 – most likely due to the different sentencing guidelines between conspiracy to riot rather than to commit property damage.

Rob Czernik followed with his statement of “proudly” when asked if he was guilty-as-charged. His answers of “yep” and “nope” to the questions asked him by the Judge and attorneys certainly did nothing to endear him to the Judge. When asked if he wanted to make a pre-sentencing statement, he responded, “Nope. Get on with it.” Judge Warner gave him two years of supervised probation instead of the one year the two prior defendants received. When asked by his attorney, Jordan Kushner, about the discrepancy, Judge Warner responded briskly that she wasn’t about to negotiate. Her decision was the “court’s discretion”. Excuse me, but “politics aside”, is such a statement from the court based “entirely on ‘the law’”? I doubt it.

Finally, Garrett Fitzgerald was the last defendant. He talked about the dedication of “his whole life to community”. He lives a life of voluntary poverty and sobriety. He was not “wanton” in breaking the law; he broke the law on the basis of his principles. He too claimed that he and the other defendants were specifically targeted for their “political beliefs”. After being cut-off by the Judge from reading a passage from Dr. Suess’ book, The Lorax, Fitzgerald concluded, “What we allow and what we don’t allow says a lot about our society.”

He must have struck a nerve: he got the extra year of probation as well.

I left the Courtroom with a conviction reaffirmed: the law is inherently political. These “laws”, especially protecting “property” do not come down from Mount Sinai; members of our legislature whose election is more often than not determined by who has the most money hash them out. Governors or Presidents who are also “elected” by a money-polluted system then appoint judges. Our system of check-and-balances counts on the Judiciary to help “establish justice”. I don’t think I witnessed much “justice” in the St. Paul Courtroom today.