Beyond selective justice

The recent arrest of Ratko Mladic and his transfer to The Hague have brought the international mechanism to dispense justice into sharp focus once again. Mladic’s arrest has been hailed by the international community and declared a milestone in the path to ensure international criminal justice as after Mladic, only one major Serbian war criminal remains at large. But it is worth noting that selective international prosecutions cast the legitimacy of the system into doubt as justice must not only be done but must also be seen to be done.

Throughout human history, war has brought about suffering and misery to humanity. In ancient and medieval ages, warfare was especially cruel and excessive. For centuries, over and over again, war has been extended to the civilian population leading to the ill-treatment and killing of women, children, and the elderly. Notwithstanding the existence of rules and laws regulating the conduct of warfare, war crimes were committed with impunity for the most part, till the twentieth century.

Over the last century, the world has witnessed the establishment of an international mechanism to bring the violators of the laws of war to justice. At the end of the Second World War, international military tribunals were established at Nuremberg and Tokyo for the purpose of trying German and Japanese officers charged with war crimes.

Twenty-two Nazi leaders were prosecuted of which three were acquitted, 12 were sentenced to death by hanging, and seven were sentenced to imprisonment of varying terms. Among the 28 Japanese defendants charged with war crimes and crimes against peace, two died during the course of the trial, seven were sentenced to death, and the rest were sentenced to life imprisonment. In the post-WWII trials, the reflection of victor’s justice is glaringly evident. The war leaders of the Allied countries in the Second World War who had committed atrocities against civilians went scot-free. However, those responsible for dropping bombs on Hiroshima and Nagasaki, when the axis powers were close to surrender, were never held accountable.

In the decade of the 1990s, two more ad-hoc international tribunals were established to deal with war crimes committed in the territories of former Yugoslavia and Rwanda. The judgements of both these tribunals have significantly contributed to the development of jurisprudence of international criminal law. The establishment of these tribunals also gave an impetus to the founding of the International Criminal Court (ICC) so that the perpetrators of war crimes, genocide, and crimes against humanity may not escape justice. Unfortunately, even today, the establishment of ‘universal justice’ remains a remote possibility in the face of realpolitik.

Israeli forces have been guilty of war crimes on many occasions but there is no concern expressed by the international community for the impoverished Arab victims. According to an Amnesty International report (published in 2006), in 1982 the Israeli air force conducted more than 7,000 aerial attacks in Lebanon, supplemented by 2,500 naval bombardments, and an unknown number of artillery barrages. An estimated 1,183 people were killed, about one-third of whom were children, 4,054 were injured and 970,000 people, or 25 percent of the total population, were displaced. The massacre of around 2000 Palestinian civilians in the Sabra and Shatila refugee camps was aided by the Israeli defence forces. Ariel Sharon was held personally responsible for this wholesale massacre by independent investigative commissions but Israel was not pressed by the United Nations to prosecute him for breaching the laws of war. Likewise, in 1998, Israel refused to extradite Solomon Morel who was responsible for the killing of 1,500 German prisoners of war in Poland at the end of WWII.

The United Nations Security Council took notice of the genocidal crimes taking place in Darfur and referred the case of Sudanese President Omar Al-Basher to the International Criminal Court. But the United Nations has blinded its eyes to the humanitarian disaster in Gaza wrought by the Israeli blockade and other atrocities committed there. The original Goldstone Report also held Israel responsible for war crimes in Gaza.

The 2003 US invasion in Iraq is another case in point. Hundreds of unarmed civilians were killed by US soldiers and WikiLeaks videos show the intentional killing of journalists by US troops. In 2008, an enquiry by the US Senate Armed Services Committee concluded that torture and abuse of prisoners in US custody in Iraq was the direct result of policies authorised by senior officials within the Bush administration and not merely isolated events. Will the former US president George W Bush, then vice-president Dick Cheney and secretary of defence Donald Rumsfeld ever face trial for war crimes in Iraq before an international criminal tribunal?

The effectiveness of accountability mechanisms hinges on across the board application, without discrimination. The international criminal justice system cannot attain legitimacy if it becomes a tool in the hands of powerful, hegemonic states to arm-twist weak nations, allowing the former and their allies to unleash cruelty with impunity. It follows that ultimate responsibility for forging a coherent universal framework of justice at the international level rests with the influential states that wield clout in international politics.

Nauman Asghar
The News International

June 11, 2011

The writer is a Rhodes Scholar who teaches International Law at the University of Punjab.

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