People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 25

June 24, 2012

Crimes Against Humanity


Differing Yardsticks


Yohannan Chemarapally


A WAR Crimes Tribunal in the Malaysian capital, Kuala Lumpur, issued a ruling last month  that the former American president, George W Bush, along with six other members of his administration were guilty of war crimes. The seven member “Kuala Lumpur War Crimes Tribunal” was set up in 2007 by the former Malaysian prime minister, Mahathir Mohamed. The tribunal, which has no enforcement powers, is modelled after the Nuremberg Tribunal which was set up by the US after the end of Second World War and the 1967 Tribunal set up in Sweden and Denmark which found the US guilty of waging war against Vietnam. Mahathir, in a landmark speech at the Kuala Lumpur NAM summit in 2003, had said: “War must be outlawed….. The enforcement of this must be by multilateral forces under the control of United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, (and) when.”




In November last year, the Kuala Lumpur Tribunal had found President Bush and the former British prime minister, Tony Blair, guilty of “crimes against peace” for orchestrating the 2003 invasion of Iraq. A court appointed defence counsel was given the opportunity to offer arguments and evidence on behalf of the absent defendants. Those accused of war crimes were requested to offer their own defence or send representatives to argue their case. At the time the war crimes tribunal was being set up, Mahathir had said that those responsible for the war in Iraq would never be held accountable for their actions or “hanged like Saddam Hussein.” Mahathir’s contention was that “the only punishment that most leaders are afraid of is to go down in history with a certain label attached to them --- in history books they should be described as war criminals.” Mahathir had also promised that the Kuala Lumpur proceedings would be fair and not a “kangaroo court” of the kind which hanged Saddam.


In its latest ruling, after painstakingly recording eye witness accounts of torture victims in a trial that lasted five days, the tribunal pronounced that Bush along with his vice president Dick Cheney, defence secretary Donald Rumsfeld and five other senior officials, who had sought to provide legal cover for the invasion, were guilty of “war crimes.” Detainees held illegally in Guantanamo Bay and in Iraqi and Afghan prisons graphically described the torture methods used by the US authorities. A recently retired senior CIA official told the BBC that he had ordered the erasing of tapes showing detainees being tortured. The official, Jose Rodriguez, a former director of the CIA’s National Clandestine Service, in his book Hard Measures describes how torture methods, including “water boarding,” were practiced on detainees, in Guantanamo Bay and secret CIA “black sites.”


President Barack Obama has described “water boarding” as a form of torture. Rodriguez is, however, of the view that the policies of the Obama administration against radical Islam are “far tougher” than that of the Bush administration. The widespread use of drones in targeting militants means that they don’t have to be captured or interrogated anymore. They are liquidated along with innocent civilians, who are written off as collateral damage. A recent report by Human Rights Watch (HRW) on the NATO bombing of Libya has revealed new details about the scale of civilian deaths. The “no fly zone” over Libya was authorized by the UN Security Council to protect civilian life. Eight NATO air strikes, which HRW examined in detail, resulted in the deaths of 72 civilians, which included 20 women and 24 children. US, British and French planes were leading the NATO attacks that were instrumental in toppling the legitimate government in Libya. NATO has refused to investigate the attacks on non-military targets. The new Libyan government installed by NATO has estimated that more than 30,000 people, most of them civilians, were killed after outside military intervention.




The transcripts of the Kuala Lumpur trial will be sent to the International Criminal Court (ICC) and the UN Security Council. The presiding judge at the tribunal, Tan Sri Lamin Mohammed Yunus said that the eight accused were individually and jointly liable for crimes of torture in accordance with Article 6 of the Nuremberg Charter. “The US is subject to customary international law and the principles of the Nuremberg Charter and exceptional circumstances such as war, instability and public emergency cannot excuse torture.” Justice Lamin said that five member bench concluded that “the witnesses, who were victims placed in preventive detention, illegally by the convicted persons and their government are entitled to payment of reparations. He added that the findings of the tribunal would be handed over to the War Crimes Commission and the prosecutor of the ICC.


Professor Gurdial Singh Nahar, who headed the prosecution, told the media that the tribunal “scrupulously” adhered to the regulations drawn up by the Nuremberg Courts and the ICC. He expressed optimism that the example of the Kuala Lumpur tribunal will be replicated in other countries whose governments swear by international laws and fair play. He said that countries around the world have a duty to “try war criminals.” Nahar cited the example of the late Chilean dictator, Augusto Pinochet, who was tried in the UK. The governments of Canada, Spain and Germany, under pressure form Washington, have stopped the hearing of war crimes cases against the former American president and his associates.


Pulling no punches as usual, Mahathir Mohamed said that Bush and company “are basically murderers and they kill on a large scale. Powerful countries are getting away with murder.” Mahathir, despite his advancing age, sat through all the proceedings, listening attentively to the harrowing details narrated by former detainees. Abbas Abid, an engineer from Fallujah, had his fingernails removed while being interrogated. Ali Shalal had naked electric wires attached to his body and was electrocuted while being interrogated. Moazzem Beg was kept hooded and beaten while in solitary confinement. Francis Boyle, a professor of International Law at Illinois University, who was part of the prosecution, said that this was the first conviction handed out to Bush by a tribunal.




Meanwhile, western governments are gloating at the conviction handed out to the former president of Liberia, Charles Taylor, for “aiding and abetting” war crimes in Sierra Leone by an ICC court at The Hague in the last week of April. Taylor was held guilty for instigating and profiting from a war in neighbouring Sierra Leone though he was acquitted of directly ordering human rights abuses. More than 50, 000 civilians were killed in the decade long civil war which ended in 2002. The American invasion of Iraq and Afghanistan has resulted in the deaths of more than a million people besides triggering a massive refugee problem. Richard Falk, professor emeritus of international law at Princeton University, observed that leaders from countries which oppose the interests of the West are held accountable to international criminal law. He points out that the ICC’s Special Court on Sierra Leone was financed by the US, Canada, UK and the Netherlands. Companies from these countries have big interests in the diamond trade.  Taylor had used the so called “conflict diamonds” in the region to bolster his government and help his allies. With Taylor now out of the scene, western companies are back in the lucrative diamond trade.


After Taylor, it is going to be the turn of the ousted Ivory Coast president, Laurent Gbabgo, to face the ICC. Gbabgo was removed from office with the military help of the former colonial master, France. British Special Forces played a role in defeating the rebels backed by Taylor in Sierra Leone. Both these leaders, despite their authoritarian and thuggish ways, still retain a lot of popular support in their respective countries. As Taylor awaits sentencing, Ratco Mladic, the military leader of the Serbs in Bosnia-Herzegovina, is being tried at the Yugoslav War Crimes Tribunal at the Hague. Mladic has described the tribunal as a “NATO Court” and is refusing to cooperate. The Serbs have reasons to feel victimised as they were the ones who defied NATO’s military might during the 1999 war. Slobodan Milosevic, the Yugoslav leader, died in a prison cell in The Hague, as his trial for alleged war crimes dragged on.


Falk notes that it is “dramatically ironic” that the US has now become the champion of international criminal justice for others. He observed that the US, more than any other country in the world, “holds itself self-righteously aloof from accountability on the main ground that any judicial process might be tainted by political motivations.” The US has signed agreements with over 100 countries that prohibit the handing over of any US citizen to the ICC. But the US government and media are among the biggest cheerleaders when former heads of state who opposed American geopolitical interests are paraded before the ICC. “If non-western leaders are supportive of western interests, their atrocities will be overlooked, but if there is a direct confrontation, then the liberal establishment will be encouraged to start “war crimes talk” — thus Milosevic, Saddam and Gaddafi were charged with crimes, while the crimes of those governing Bahrain, Saudi Arabia and Israel are ignored,” Falk observed in a recent article.




To be on the safe side, the western powers have seen to it that “aggressive war” has been excluded from the Rome Treaty which governs the scope of the ICC jurisdiction. A former UN assistant secretary general, Denis Halliday, who was present at the Kuala Lumpur War Crimes Tribunal hearings, said that the US had weakened international institutions before launching its invasions of Afghanistan and Iraq. He said that the UN was too weak during the Bush administration to enforce even the Geneva conventions. “The UN is a weak body corrupted by member states that use the UN Security Council for their own interests. They don’t respect the Geneva conventions,” said Halliday. “It has become redundant, possibly a dangerous, and certainly a corrupted organisation.”