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.

3 comments:

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lpcyusa said...

What It’s Like to Chill Out With Whom the Rest of the World Considers As The Most Ruthless Men: Ratko Mladic, Goran
Hadzic and Radovan Karadzic (+) Confessions of a Female War Crimes Investigator


Retrospectively, it was all so simple, natural and matter of fact being on a boat restaurant in Belgrade, sitting with, laughing, drinking a two hundred bottle of wine and chatting about war and peace while Ratko Mladic held my hand. Mladic, a man considered the world’s most ruthless war criminal since Adolf Hitler, still at large
and currently having a five million dollar bounty on his head for genocide by the international community. Yet there I was with my two best friends at the time, a former Serbian diplomat, his wife, and Ratko Mladic just chilling. There was no security, nothing you’d ordinarily expect in such circumstances. Referring to himself merely as, Sharko; this is the story of it all came about.

http://sites.google.com/site/jillstarrsite/what-it-s-like-to-chill-out-with-whom-the-rest-of-the-world-considers-
as-the-most-ruthless-men-in-the-world-ratko-mladic-and-radovan-karadzic-confessions-of-a-female-war-crimes-investigator

lpcyusa said...

Irrefutable Proof ICTY Is Corrupt Court/Irrefutable Proof the Hague Court Cannot
Legitimately Prosecute Karadzic Case

http://picasaweb.google.com/lpcyusa
(The Documentary Secret United Nations ICC Meeting Papers Scanned Images)

http://sites.google.com/site/jillstarrsite/irrefutable-proof-icty-is-corrupt-court-irrefutable-proof-the-hague-court-cannot-legitimately-prosecute-karadzic-case/irrefutableproofictyiscorruptcourtirrefutableproofthehaguecourtcannotlegitimatelyprosecutekaradziccase

This legal technicality indicates the Hague must dismiss charges against Dr Karadzic and
others awaiting trials in the Hague jail; like it or not.

Unfortunately for the Signatures Of the Rome Statute United Nations member states
instituting the ICC & ICTY housed at the Hague, insofar as the, Radovan Karadzic, as
with the other Hague cases awaiting trial there, I personally witnessed these United
Nations member states having a substantial conversation and openly speaking about trading judicial appointments and verdicts for financial funding when I attended the 2001 ICC Preparatory Meetings at the UN in
Manhattan making the iCTY and ICC morally incapable trying Radovan Karazdic and
others.

I witnessed with my own eyes and ears when attending the 2001 Preparatory Meetings to
establish an newly emergent International Criminal Court, the exact caliber of criminal
corruption running so very deeply at the Hague, that it was a perfectly viable topic of
legitimate conversation in those meetings I attended to debate trading verdicts AND
judicial appointments, for monetary funding.

Jilly wrote:*The rep from Spain became distraught and when her country’s proposal was
not taken to well by the chair of the meeting , then Spain argued in a particularly loud
and noticably strongly vocal manner, “Spain (my country) strongly believes if we
contribute most financial support to the Hague’s highest court, that ought to give us and
other countries feeding it financially MORE direct power over its
decisions.”

((((((((((((((((((((((((( ((((((((((((((((((((((((( Instead of censoring the country representative
from Spain for even bringing up this unjust, illegal and unfair judicial idea of bribery for
international judicial verdicts and judicial appointments, all country representatives
present in the meeting that day all treated the Spain proposition as a ”totally legitimate
topic” discussed and debated it between each other for some time. I was quite shocked!
The idea was "let's discuss it." "It's a great topic to discuss."

Some countries agreed with Spain’s propositions while others did not. The point here is,
bribery for judicial verdicts and judicial appointments was treated as a totally legitimate
topic instead of an illegitimate toic which it is in the meeting that I
attended in 2001 that day to establish the ground work for a newly emergent
international criminal court.))))))))))))))))))))))))))))

In particular., since "Spain" was so overtly unafraid in bringing up this topic of trading
financial funding the ICC for influence over its future judicial appointments and verdicts
in front of every other UN member state present that day at the UN, "Spain" must have
already known by previous experience the topic of bribery was "socially acceptable" for
conversation that day. They must have previously spoke about bribing the ICTY and ICC
before in meetings; this is my take an international sociological honor student.

SPAIN's diplomatic gesture of international justice insofar as, Serbia, in all of this is,
disgusting morally!

SPAIN HAS TAUGHT THE WORLD THE TRUE DEFINITION OF AN
"INTERNATIONAL CRIMINAL COURT."

I represented the state interests' of the Former Yugoslavia, in Darko Trifunovic’s
absence in those meetings and I am proud to undertake this effort on Serbia’s behalf.