DUCKPOND

The International Criminal Court, or Cour Penale Internationale, has been active since July, 2002. War crimes are part of its mandate, but its jurisdiction is limited by the acceptance of national governments, and the major holdout is the bastion of international law, the United States of America.

Disdain for international institutions and international law is at first sight somewhat surprising for the global corporate capital since one supposes that they represent international trading corporations if the ideology of market capitalism was taken at face value. In these cases their behavior reflects their interests rather than their espoused values, and while that maybe realpolitik, rank hypocrisy is always disconcerting (and so unexpected!). Then again war may not be good for some brands, as it is for others, whereas a declining percentage of wages is always good for profits.

Australia is a member of the ICC, but its endorsement was qualified to the extent that it may be doubtful whether it is effectively a participant. These concerns have not stopped lawyers documenting the case against war crimes committed in the war of terror in Iraq and Afghanistan and suggesting an indictment against the former Prime Minister, John Winston Howard. At Counterpoint, Binoy Kampmark writes:

Howard is more used to regarding the ICC as an acronym of cricket rather than crime. But a legal brief to a body more versed in punishing crimes of politics than code violations of a one-time imperial sport was lodged (June 14) by Melbourne-based activist Tim Anderson and John Valder, former Liberal Party National President. Other members of this eclectic group backing this move are Senator Lyn Allison of the now defunct Australian Democrats, prolific cartoonist Michael Leunig, renowned classical guitarist John Williams and American anti-war activist Cindy Sheehan.

The alleged war crimes, noted in the brief to the ICC, centre around ‘the unwarranted and excessively lethal armed attack and invasion of Iraq’ with specific war crimes against specific persons detailed in various annexes to the document. Pictures are appended, and the names of victims attached. John Howard, through his ‘express personal executive decision and action’ is alleged to have perpetrated ‘war crimes by ‘the conduct’ of such an unwarranted, excessive and disproportionate use of force.

Anderson and his colleagues had been active in compiling a list of petitioners to back a series of charges against the former prime minister. The charges in one specific petition are hefty. Complicity in the killing of civilians in Baghdad, Basra, Khormal, Babel, Nassariya, Najaf, Karbala and Anbar in March 2003 through an assortment of weapons comes first, followed by complicity in the killing of ten members of the Sabri tribespeople in Afghanistan in May 2002 and the killing of prisoners after the US-led ‘Anaconda’ operation in Afghanistan’s Shah-i-Kot in March 2002. Involvement in the attacks on the civilian population of Fallujah (April and November 2004) is also alleged; as is Howard’s connections with the international torture network established under the directives of the ‘war on terror’.

Such a process of investigation is necessary, if for no other reason than to overcome the vicious normality such acts as the Iraqi occupation have assumed.

The ICC is, however limited in how it can reach into the throes of politics. While the days of state impunity are seemingly numbered, much international law remains a creature of contract and diplomacy, rather than civics and morality. It is, for instance, curtailed by the ratification process – countries reluctant to participate don’t have to, and the Bush administration is a notable absentee, amongst other countries, from the process. We are then left with the heroic, if vain antics by concerned citizens, who cite the violation of local laws as the basis of their actions. But if the ICC does, as the Nuremberg trials were intended for, put forth a record, to indelibly memorialize the uncatalogued dead, to not merely unearth the mistakes but the crimes of a conflict, then it would have gone some way to achieving its purpose.

Indictment and prosecutions that prove the efficacy of international law, which is a necessary condition for peace as it is for international commerce, require more than documentation of evidence, but institutions and enforcement above the level of the nation state. Of course, once again it is no evidence of a paradox when democracy is denied at the local level as it is at the international level, which is evidence of hypocrisy of Democratic States. The putative war against Iran will, if it occurs, be more evidence of criminal behavior of the United States Government, not only in this instance of the action in itself, but according to some of its full consequences, which are likely to be felt by other than the Iranians, will graver than it’s proponents imagine. Thus the price of not holding the guilty to indictment, prosecution and process, and in that manner establishing the truth of the case, for past episodes may be very high for the world indeed.

Conflict may, when managed well, in most cases be a positive win/win process, but surely it is now possible to envisage that war will end, and with it the economics of the war making industries.