Bush Right Candidate
For KL War Crimes Tribunal
Final Part:
War Crime Commission
By Datuk Rejal Arbee
www.beritakmu.net
With all those developments being deliberated in Part One and Part Two of this article, the decision by the "Expose War Crimes, Criminalise War" conference organised by the Perdana Global Peace Organisation in Kuala Lumpur early last month to set up a War Crimes Commission (KLWCC) to check on allegations of war crimes and atrocities pepetrated by Bush and company is most appropriate.
The Commission presents and avenue to war victims and survivors of war crimes from countries such as Iraq and Palestine to file their claims. If the KLWCC can establish a prime facie case against a war monger leader then it would be heard before the KL War Crimes Tribunal (KLWCT) that is to be set up and those found guilty would be branded as war criminals and be recorded for posterity.
Despite the fact that the KLWCC is manned by prominent lawyers and law academics and the pro-tem committee established for the setting up of the KLWCT are also composed of other prominent legal figures, a former Federal Court Judge and a prominent law academic, a couple of detractors who have an axe to grind against the fourth Prime Minister, Tun Dr Mahathir Mohamad, have questioned the veracity of the KLWCT.
One such person who is belittling the efforts, Datuk Param Cumaraswamy, a lawyer and former UN Special Rapporteur on the Independence of Judges and Lawyers, has described the KLWCC and the KLWCT as a circus since there was no legal basis for its formation.
He further contended that it could deter 'respectable and credible foreign investors' to this country. He probably outdid even the Bush apologists and the neocons when he described the Tribunal's formation as a farce and would make Malaysia the laughing stock of the world.
Alternative
But there are enough concerned people and peace activists around the world who see this as a most welcomed initiative to get the war mongers and criminals to be so branded. They also realised that the KLWCT was needed as an alternative to the International Criminal Court in The Hague, Holland, which Mahathir had accused of being biased in selecting cases it would hear.
I am posting here excerpts from a letter by Prof Dr Shad Saleem Faruqi, as a most compeling rejoinder to Cumaraswamy’s contentions. Prof Faruqi argued that both the KLWCC and the KLWCT have jurisdiction to investigate and adjudicate war crimes in Iraq and elsewhere since the concept of law is not confined to enacted, formal law. He also submitted that:
"Even if 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.
“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!
Racist
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.
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.
Immune
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.
Powerless
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.
* 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.
* 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.
United Nations
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.
* 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.
* 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.
* 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.
Rome Statute
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.”
So much for the detractors of the KLWCC and the KLWCT.
http://www.beritakmu.net/modules.php?name=News&file=article&sid=5763
For KL War Crimes Tribunal
Final Part:
War Crime Commission
By Datuk Rejal Arbee
www.beritakmu.net
With all those developments being deliberated in Part One and Part Two of this article, the decision by the "Expose War Crimes, Criminalise War" conference organised by the Perdana Global Peace Organisation in Kuala Lumpur early last month to set up a War Crimes Commission (KLWCC) to check on allegations of war crimes and atrocities pepetrated by Bush and company is most appropriate.
The Commission presents and avenue to war victims and survivors of war crimes from countries such as Iraq and Palestine to file their claims. If the KLWCC can establish a prime facie case against a war monger leader then it would be heard before the KL War Crimes Tribunal (KLWCT) that is to be set up and those found guilty would be branded as war criminals and be recorded for posterity.
Despite the fact that the KLWCC is manned by prominent lawyers and law academics and the pro-tem committee established for the setting up of the KLWCT are also composed of other prominent legal figures, a former Federal Court Judge and a prominent law academic, a couple of detractors who have an axe to grind against the fourth Prime Minister, Tun Dr Mahathir Mohamad, have questioned the veracity of the KLWCT.
One such person who is belittling the efforts, Datuk Param Cumaraswamy, a lawyer and former UN Special Rapporteur on the Independence of Judges and Lawyers, has described the KLWCC and the KLWCT as a circus since there was no legal basis for its formation.
He further contended that it could deter 'respectable and credible foreign investors' to this country. He probably outdid even the Bush apologists and the neocons when he described the Tribunal's formation as a farce and would make Malaysia the laughing stock of the world.
Alternative
But there are enough concerned people and peace activists around the world who see this as a most welcomed initiative to get the war mongers and criminals to be so branded. They also realised that the KLWCT was needed as an alternative to the International Criminal Court in The Hague, Holland, which Mahathir had accused of being biased in selecting cases it would hear.
I am posting here excerpts from a letter by Prof Dr Shad Saleem Faruqi, as a most compeling rejoinder to Cumaraswamy’s contentions. Prof Faruqi argued that both the KLWCC and the KLWCT have jurisdiction to investigate and adjudicate war crimes in Iraq and elsewhere since the concept of law is not confined to enacted, formal law. He also submitted that:
"Even if 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.
“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!
Racist
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.
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.
Immune
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.
Powerless
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.
* 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.
* 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.
United Nations
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.
* 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.
* 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.
* 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.
Rome Statute
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.”
So much for the detractors of the KLWCC and the KLWCT.
http://www.beritakmu.net/modules.php?name=News&file=article&sid=5763
1 comment:
Datuk Ruhanie
Salaam
Get this out to all the Malaysians walking out there across the globe and try to get COUNTERPUNCH to print Dtk Rejal's article!
Spread it like an angry bush-fire!
Great article. I will say there are some Arab princes and princesses who would join this Caravanserai of Peace; and not forgetting the anti-war protestors.(they could listen to Isley Brothers or Cat Steven's Peace Train, if they want to)
Do not forget Denmark.
Salaam
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