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Shades of Nuremberg

Print edition : Jun 15, 2012 T+T-
Mahathir Mohamad, former Malaysian Prime Minister, who set up the seven-member tribunal in 2007.-AFP

Mahathir Mohamad, former Malaysian Prime Minister, who set up the seven-member tribunal in 2007.-AFP

The Kuala Lumpur Tribunal's indictment of President George W. Bush and his deputies for war crimes sets a new precedent.

THE Kuala Lumpur War Crimes Tribunal ruled in the second week of May that George W. Bush, former President of the United States, and six members of his administration were guilty of war crimes.

The seven-member tribunal was set up in 2007 by 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 U.S. after the end of the Second World War, and the tribunal set up in Sweden and Denmark in 1967, which found the U.S. guilty of waging war against Vietnam. Mahathir, in a landmark speech at the Kuala Lumpur Non-Aligned Movement (NAM) summit in 2003, had said: War must be outlawed.The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.

Bush and Blair

In November last year, the Kuala Lumpur Tribunal found 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 defendants, who were absent. Those accused of war crimes were requested to offer their own defence or send representatives to argue their case. At the time the 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 themin history books they should be described as war criminals. Mahathir had also promised that the Kuala Lumpur proceedings would be fair and that the tribunal would not be a kangaroo court of the kind that sentenced Saddam to hang.

In its latest ruling, the tribunal, after recording eyewitness accounts of torture victims in a trial that lasted five days, pronounced that Bush, his Vice-President, Dick Cheney, Defence Secretary Donald Rumsfeld and five 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 U.S. authorities.

A recently retired senior Central Intelligence Agency (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 waterboarding, were practised on detainees in Guantanamo Bay and at secret CIA black sites. President Barack Obama has described waterboarding as a form of torture. Rodriguez is, however, of the view that the policies of the Obama administration against radical Islamists are far tougher than those of the Bush administration. The widespread use of drones in targeting militants means that they do not 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 North Atlantic Treaty Organisation (NATO) bombing of Libya has revealed new details about the scale of civilian deaths. The no-fly zone over Libya was authorised by the U.N. Security Council to protect civilian lives. Eight NATO air strikes, which HRW examined in detail, resulted in the death of 72 civilians, including 20 women and 24 children. U.S., British and French planes led 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 U.N. 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 U.S. 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 the five-member Bench had 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 would be replicated in other countries whose governments swore by international laws and fair play. He said that countries around the world had a duty to try war criminals. Nahar cited the example of the late Chilean dictator Augusto Pinochet, who was tried in the United Kingdom. The governments of Canada, Spain and Germany, under pressure from the U.S., have stopped the hearing of cases of war crimes against the former U.S. President and his associates.

Mahathir, pulling no punches, 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 pulled out 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, 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 over the conviction handed out by an ICC court in The Hague in the last week of April to former President of Liberia Charles Taylor for aiding and abetting war crimes in Sierra Leone. Taylor was held guilty of 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 that ended in 2002.

The American invasion of Iraq and Afghanistan has resulted in the death 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 that opposed the interests of the West were held accountable to international criminal law. He pointed out that the ICC's Special Court on Sierra Leone had been financed by the U.S., Canada, the U.K. 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 military help from 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 in 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 U.S. has now become the champion of international criminal justice for others. He observed that the U.S., 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 U.S. has signed with over 100 countries agreements that prohibit the handing over of any U.S. citizen to the ICC. But the U.S. 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.

The Western powers, to be on the safe side, have seen to it that aggressive war has been excluded from the Rome Treaty, which governs the scope of the ICC jurisdiction. A former U.N. Assistant Secretary-General, Denis Halliday, who was present at the Kuala Lumpur War Crimes Tribunal hearings, said that the U.S. had weakened international institutions before launching its invasions of Afghanistan and Iraq. He said that during the Bush administration the U.N. was too weak to enforce even the Geneva Conventions. The U.N. is a weak body corrupted by member states that use the U.N. 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.