By Jonathan Power*
Uphill work, outlawing war crimes.
The arrest in London of the former Chilean dictator, Augusto Pinochet, accused of inflicting widespread torture, was a bolt from the blue. Not even the most well-informed human rights supporters considered it a possibility. It can be said with near certainty that it never crossed the mind of senior members of the British judiciary, who were soon to be landed with untangling its legal intricacies.
Pinochet was arrested in London on October 10, 1998.
Baltasar Garzon, a senior Spanish magistrate of Spain’s central criminal court, had heard on the grapevine that Pinochet planned to visit London. He was a friend of Prime Minister Margaret Thatcher and expected the red carpet. Garzon seized the moment and made a request for Pinochet’s arrest under the European Convention on Extradition. The concept of international law took another major step forward.
International law can be said to have its beginnings in the thoughts and writings of the Dutch sixteenth-century jurist, Grotius. Over the centuries it slowly evolved, outlawing slavery, piracy and the use of certain weapons in warfare. But until the Nuremberg trial of prominent Nazis at the end of the Second World War punishment by international treaty was not incorporated into any nation’s law. Almost nobody appeared to think of the need for a permanent International Criminal Court to try war crimes.
Winston Churchill was rather against the Nuremberg Court. He wanted the top 50 Nazis to be summarily shot. He did not believe they were worthy of a trial. Churchill’s foreign minister, Anthony Eden, observed that “the guilt of such individuals as Himmler is so black that they fall outside and go beyond the scope of any judicial process”. At first, the Americans had a similar view. US Secretary of State, Cordell Hull, declared: “If I had my way I would take Hitler, Mussolini and Tojo and their accomplices and bring them to a drumhead court-martial, and at sunrise the following morning there would occur a historic incident”.
President Harry Truman and Premier Joseph Stalin persuaded Churchill that a public trial with a right to defence was necessary, both to educate public opinion and to make sure that revanchist Germans could never use the argument that the Allies did not believe in justice.
Fifty-three years later, in 1998, 120 countries voted to adopt a statute creating an International Criminal Court. However, the US, Russia, Israel, India and China decided not to be members.
Over 22 years the Court has had an uncertain life. At first, it was deprived of funds. In its early years, its rate of prosecutions was abysmal. Convictions were rare. The African nations said the Court was biased against Africans (although African countries had been one of the most significant advocates for its creation).
The last few years under an African chief prosecutor, Fatou Bensouda from the Gambia, who is retiring soon in favour of a British judge, the court built up more momentum.
Bensouda over the last two years has taken on the US and UK and now, she announced February, Israel and Palestine.
Recently Prime Minister Netanyahu of Israel said that President Joseph Biden should keep the sanctions imposed on ICC staff by President Donald Trump. Only two countries, the US and Australia, have extended a hand to Netanyahu, issuing public statements of opposition to the ICC’s latest move.
Netanyahu is playing a card that Israel plays whenever it is criticized, accusing the ICC of being “anti-Semitic”. Netanyahu, as usual, conveniently omits to acknowledge that being critical of Israel the country does not mean the critic is being critical of Jews. As in my case, all my adult life I have been a friend of the Jews. I’d happily vote for a Jew, if he/she shared my political views, to be prime minister of my country. Nevertheless, I’m often angry at the way Israel represses the Palestinians.
The ICC has launched an investigation because of alleged crimes committed during one of Israel’s deadliest conflicts with the Palestinians when it went to war with Gaza in 2014. The number of deaths caused by Israel was far in excess of deaths caused by the militias of Gaza. Moreover, the Israelis killed a large number of children. The ICC has not yet decided to bring charges. If it does, the big question will be will the US come down on Israel’s side? Most European countries, all signed up members of the ICC, will not. Until now the US has insisted that the ICC have no jurisdiction over Palestine.
But the very fact that an investigation has begun has got the Israel government worried. Senior security officials have been advised not to travel abroad in case they are arrested.
Fortunately, Israeli public opinion is not monolithic. B’ Tselem, a leading Israeli human rights organization, has published a statement that reads, “The ICC investigation provides the first genuine prospect of thousands of victims of crimes under international law to gain long-overdue access to justice, truth and reparations”. There is a chance that in the general election this month Netanyahu will be defeated.
In the Middle East to the east is the case of Mohammed bin Salman, the crown prince and de facto leader of Saudi Arabia. He is accused of initiating the gruesome murder of a Washington Post journalist, Jamal Khashoggi. In a recent statement, the US confirmed the accusation to be true but appeared to resist the idea of the ICC prosecuting him.
However, the journalists’ organization, “Reporters Without Borders”, is pushing the public prosecutor of Germany to charge the crown prince for unlawful killing and torture, citing the right to “universal jurisdiction”—the concept that any nation’s courts can try people for atrocities committed anywhere. Recently a German court convicted a former Syrian secret police officer for his role in torturing protestors a decade ago.
Investigations in France and Germany, reported in the New York Times earlier in March, could lead to prosecutions of President Bashar al-Assad and members of his upper echelon for the use of chemical weapons against civilians. Chemical weapons experts have over years compiled information that Syria’s government has used these weapons, including sarin nerve agent and chlorine fumes, against its own people, both banned by international treaty. There have been over 300 such attacks.
The reason that Germany decided to act is that a prosecution by the ICC has been blocked, Russia and China using their veto at the United Nation’s Security Council. With their vote, the Council could grant ICC jurisdiction even though Syria is not an ICC member.
The US itself has been under investigation by the ICC for alleged war crimes committed by its troops in Afghanistan.
The on-line “Intercept” news magazine, funded by the founder of eBay, that says it specializes in holding the powerful accountable, is regarded as a serious media organization, despite its youth—it won three awards at the New York Press Club. It reported in December that “beginning in December 2018 and continuing for at least a year, Afghan operatives believed to belong to an elite CIA-trained paramilitary unit known as 01, in partnership with US special operations forces and airpower, unleashed a campaign of terror against civilians.”
This article was published not long before Trump decided to accuse the ICC of posing a national security threat because it was investigating alleged war crimes committed by US forces in Afghanistan. In June 2020 he issued an executive order, effectively criminalizing anyone who works at the ICC. The former supreme allied commander of NATO, Wesley Clark, said this was “a tragic mistake…the US has nothing to fear from the ICC”.
There is also a pending investigation by the ICC of US military actions between 2003 and 2004. Dozens of people claim to have been tortured during interrogation by the CIA in “black sites”, created by the administration of President George W. Bush. His successor, Barack Obama, abolished the use of torture and ordered the closing of all “black sites”.
“The arm of the moral universe is long, but it bends toward justice”, said Martin Luther King. Change takes a long time, but it does happen. The ICC has become an important weapon in the struggle to end war and crimes against humanity. Our job as citizens of the world is to make sure our governments keep it adequately funded and that it is given the access and authority it needs.
* Note for editors: The writer was for 17 years a foreign affairs columnist and commentator for the International Herald Tribune, now the New York Times. He has also written many dozens of columns for the New York Times, the Washington Post, the Boston Globe and the Los Angeles Times. He is the European who has appeared most on the opinion pages of these papers. Visit his website: www.jonathanpowerjournalist.com