Posted in War & Peace by secretariat on the February 21st, 2007 (taken from the PGPO portal, http://www.perdana4peace.org/)
by Prof Dr Shad Saleem Faruqi (UiTM)
The recently constituted Kuala Lumpur War Crimes Commission (KLWCC) and the Kuala Lumpur War Crimes Tribunal (KLWCT) have been criticized as having no legal basis in domestic or international law and, therefore, lacking in jurisdiction to try anyone for any crime.
It is submitted that the KLWCC and the KLWCT have jurisdiction to investigate and adjudicate war crimes in Iraq and elsewhere for the following reasons:
1. The concept of law is not confined to enacted, formal law. Law is not just a heathen word for power. Law is not confined to lex (posited law). It covers jus (justice) and recht (right).The majestic concept of “law” includes a higher, supra-legal, supra-national, field of “natural law” derived from a superior source. While there is no agreement on what this superior source is, throughout the ages people have supplemented human law with transcendental principles derived from divine revelations, nature, reason or intuition. A great deal of law is found, not made.
This type of “natural law thinking” was and is the motivating force in all trials for crimes against humanity – whether at the Tokyo and Nuremberg trials or the more recent trials in former Yugoslavia, Sudan and Sierra Leone. In all these trials the guiding principle was that above and beyond the law of the state there is a higher law to which the victims can appeal to.
Throughout history this natural law thinking has inspired challenges to unjust laws and oppressive regimes. It was natural law that was the basis for the anti-apartheid struggle in South Africa, the civil rights movement in the USA, the anti-colonial wave in Asia and Africa and the conviction of Nazi criminals after World War II.
The world is facing a similarly tragic situation as before World War II. The strong are attacking the weak for their possessions. Pre-emptive and unilateral wars of aggression are being waged. Genocides are raging. New holocausts are being perpetrated. As before the rise of Nazism, there is no shortage of apologists in Malaysia and abroad who are prepared to appease mass murderers and mock those who raise their voice of protest against oppression.
2. Even if it is alleged that the KL proceedings have no legality, no one can deny that they have legitimacy. Their legitimacy is derived from the nobleness of the cause of peace and justice, the reverence for life and the abhorrence of war as a means of solving disputes.
3. The KL proceedings are inspired by the principle that wherever there is a right there must be a remedy. Ubi jus ibi remedium. The families of the 650,000 innocents slaughtered in Iraq in the last three years, the thousands more who have been tortured and the millions more who have been displaced have no remedy in national or international courts.
Their country is under a brutal occupation and it is inconceivable that any Iraqi court will prosecute members of the occupation force for war crimes.
American courts have no jurisdiction in Iraq and have even feigned helplessness in relation to torture and unlawful detentions in American controlled concentration camps in Guantanamo Bay and elsewhere.
The ICC has been approached by 240 complainants from Iraq. Its Chief Prosecutor has most amazingly ruled that the complaints do not have “sufficient gravity” to merit the initiation of a prosecution!
4. By far and large international law on genocide, crimes against humanity, war crimes and wars of aggression is applied selectively and in a racist and colonial fashion. Except for the mass murders in Nazi Germany and former Yugoslavia, no other crime perpetrated by Europeans and Americans has ever been prosecuted in international courts. European, American and Australian colonisers have committed genocide on four continents. The United States has bombed 28 countries since World War II. Europe and America are complicit in the genocide that is raging unhindered in Palestine, Gaza and Lebanon. No bells toll for the victims of mass murders in Hiroshima, Nagasaki, Vietnam, Kampuchea, Laos, Afghanistan, Palestine, Lebanon, Chechnya, Chile, Argentina and Nicaragua. No one has been prosecuted.
The KL War Crimes Commission and Tribunal will, on the other hand, provide a forum to all, irrespective of race, religion or nationality, who are victims of mass crimes to make their case before the Commission and the Tribunal.
5. The Rome Statute has a number of flaws that prevent horrendous war crimes, genocide, crimes against humanity and the crime of aggression from being prosecuted.
First, the US under George Bush de-recognised the Rome Statute. As such, Washington is not obliged to surrender any US politicians and Army Generals for trial before the International Criminal Court. Criminals in the UK and Australia belong to a ratifying state and as such are subject to the ICC’s jurisdiction. Unfortunately they are being shielded by the ICC prosecutor because in his opinion their crimes of complicity lack sufficient gravity!
Second, for a crime to be prosecuted before the ICC, it must be committed on the territories of a member state of the ICC. Iraq and Afghanistan are not parties to the ICC Statute and the bestialities committed there are, therefore, exempt from the ICC’s jurisdiction. Only if these countries were to sign the Statute (which is unlikely), the possibility of prosecution will open up.
Third, Article 98 of the Rome Statute provides that a country need not hand over a foreign national to the ICC if it is prohibited from doing so by an agreement with the national’s country. The American government has forced nearly 100 countries to sign such “Article 98 agreements” thereby making its war criminals immune from international prosecution.
Fourth, the UN Security Council has the power to refer crimes committed by a non-signatory to the ICC (as it did for Darfur). But due to its geo-politic, racial and religious bias, the UNSC will not refer wrong-doers in the US, UK, Poland, Italy or Australia to the ICC.
Fifth, the ICC can investigate a case only if national courts fail or are unable to investigate a case. The major offending states, the US and UK are putting up the charade of prosecuting low ranking soldiers but are ignoring compelling evidence that the massacre of civilians, tortures and other crimes against humanitarian law were authorized by top politicians.
Sixth, the US and its allies committed the undoubted crime of an illegal war of aggression in Iraq. But this crime, though mentioned in the Treaty, is not yet allowed to be prosecuted because no definition of a “crime of aggression” has been agreed upon.
Seventh, before mounting the Iraq invasion the US President had threatened use of nuclear weapons. During the war the US and the UK used many weapons of mass destruction that are banned in international law. But use of these WMDs is not a crime under the ICC Statute. India had asked for inclusion of nuclear weapons and WMDs as a crime against humanity. But the US disagreed and the matter was not pursued.
6. The KL proceedings are inspired by previous precedents of People’s Tribunals e.g. the Sir Bertrand Russell Tribunal in relation to America’s war crimes in Vietnam; the recent Tokyo Tribunal on Afghanistan; and the Turkish Tribunal in relation to Iraq.
7. Such people’s initiatives have basis in democratic theory, in human rights jurisprudence and in the Charter of the United Nations.
Democracy permits the powerless to organise against the powerful. Democracy permits NGOs to raise their voice of concern on issues of national and international concern. Only those without democratic impulses and with authoritarian and fascist tendencies will argue that citizens’ initiatives must proceed only with official and legal backing.
Our fidelity to human rights demands that we do not remain silent in the face of mass murders, the brutalization of a whole nation and the de-humanisation of a whole people. We cannot remain apathetic if atrocities continue to be committed and international institutions are comatose and content to be so.
The Charter of the United Nations permits NGO involvement in world affairs. The Charter begins with the words “We the peoples”. It provides for some UN agencies to consult with people’s organizations. In fact approximately 1,000 NGOs have official consultative status with UN agencies.
8. The fact that the KL War Crimes Tribunal cannot impose its judgment on the aggressors is not the heart of the matter. The point is to expose wrong-doing and to shame the criminals in the eyes of the world.
9. The fact that the KLWCC and the KLWCT may have to proceed without the presence of the accused is indeed troublesome. All accused will be notified and invited to be represented. But if the accused refuse to respond, then the trial will proceed in abstentia. This is not without precedent. After World War II many Nazi criminals were prosecuted in their absence.
10. Admittedly, the KLWCT suffers from many limitations. But many distinguished jurists from around the world believe that it can make a significant impact.
It can mobilise the conscience of the world community.
It can report its findings to the General Assembly of the United Nations with a view to a “Uniting for Peace Resolution”.
It can submit its findings to the ICC to enable the ICC to wake up from its stupor.
It can transmit the report of its deliberations to the 104 countries that have ratified the Rome statute. Some of these states like Germany and Belgium have laws that permit prosecutions for genocide and for crimes against humanity no matter where the offence was alleged to have been committed.
Finally, the KL War Crimes Tribunal can refer its findings to many peace loving groups in the USA and elsewhere and request them to exert democratic pressures on their leaders to end this senseless slaughter of the innocents.
Prof Dr Shad Saleem Faruqi (UiTM)