Even in the 12st Century where holidaying in the outer space is no longer a myth, the institutions and practice of justice is still stuck in its morphological stage. The concepts of crimes against humanity and war crimes are recent developments in western jurisprudence, even after the Hitler war in 1945 justice was not seen as Justice being done but rather it was going after the “small fish” - prosecuting the weak. With the emergence of the ICC, justice it seems is now being used as a politically motivated tool to further western foreign policy.
Modern Western jurisprudence, or the philosophy of law, which is the guiding principle behind western social and legal justice, has its origins in Plato's dialogues; and many consider the first imperative of jurisprudence to be the notion of justice. In this view, justice is seen as a determination of the morality, or the "rightness," of the treatment of the citizenry by its government through the enactments and decisions of the government. Accordingly, the question of what acts deserve to be categorized as "just" has persistently arisen in the discourse of politics.
In his book The Politics, Aristotle opined that "in seeking justice they are seeking impartiality; for law is impartiality" and "justice is held by all to be a certain equality". Justice, then, begins with the idea of equal treatment and becomes the basis of legitimate governance and valid rule of law. Any states without justice are therefore what St. Augustine has called "robber-bands enlarged."
Critical of the limitations of Plato and St. Augustine’s definitions, St. Thomas Aquinas expanded the definition by introducing the notion of continuity to justice. He defined justice as "a habit whereby a man renders to each one his due by a constant and perpetual will" suggests that, with justice, right and wrong remain the same over time and circumstance. The great philosopher John Locke builds on both ideas by identifying a non-arbitrary aspect of justice that dictates that all be accorded the same treatment in a predictable fashion. In his view, "the legislative . . . authority cannot assume to itself a power to rule by temporary arbitrary decrees, but is bound to dispense justice . . . by promulgated standing laws, and known authorized judges."
The man accredited with the modern concept of justice is H.LA. Hart, the English philosopher of law and professor of Jurisprudence. He introduced to the earlier concept the notion of constance: "a uniform or constant feature, summarized in the precept 'Treat like cases alike' and a shifting or varying criterion used in determining when . . . cases are alike . . ."
However, in the practice, the exercise of justice has also remained a contemptuous issue. But what is apparent is that justice appears only to be dispensed by the power that be and in the situation of war, by the victor. Take for example, in Britain, Olver Cromwell, the political leader cum military leader, best known as the Lord Protector of England, 1653-58; claimed to seek "justice" through beheading Charles I. More plausibly, he perceived he could only quash the lingering symbolic power of the Crown through the death of the monarch. His triumph was short lived as the resurrected monarchy returned the favor. Cromwell's sacrifice of justice on the altar of political consolidation did him no good because he was unable to dissuade the population from their preference for a monarchy. If Charles I had defeated Cromwell, no doubt Cromwell's head would have been the first to fall. The winner defined justice for his political purposes.
In both the Nuremberg and Tokyo trials, the victorious allies forced their will upon defeated countries. Different post-war concerns led to different outcomes. A greater Allied concern for post-war Europe meant the triumph of fundamental justice in Germany. That is, the process was fair and the subject matter was legitimate. In Japan, the Allied concern focused almost exclusively on shielding the Emperor from culpability and notions of justice were an afterthought at best. In both cases, the military victory by the Allies meant they alone defined the parameters of the trials (what, who, how and when). The victims were never of primary concern to the victors. Justice was served only to the extent the military victors chose it.
Cultural history of civilizations has also shown that there is an alternative form of justice to that of the Western. Take for example, The Dirty Wars Trials in Argentina and the Truth and Reconciliation Commission in South Africa. In these two situations, justice was constrained by political considerations. President Raul R. Alphonsin had a precarious grip on power and an alienation of either the military or the population could have sparked a civil war. In South Africa, Nelson Mandela knew an inclusive government and future was the only option available that would avoid more strife and allow for economic development. Each allowed as much justice as they thought their systems could take.
Unlike Argentina and South African, Rwanda and Bosnia represent justice imposed ineffectively by strangers to the conflict. Neither country was poised on the brink of peace and both present significant risks for renewed conflict. Justice in the form of Human Rights trials does not seem destined to occur in either place despite the window dressings hung by the United Nations.
In Northern Ireland, a country with no clear winner and, more importantly, no clear loser, the trials were out of the question. Political power sharing resulted in the commitment by all parties to the conflict to cease human rights violations and renounce those types of acts.
The above cited cases suggest that, to the extent justice entails prosecution; consolidated political power is a prerequisite to meaningful trials. Each case shows the use of the trappings of justice to further political ends. In South Africa, Argentina, and Germany, the argument is compelling that the use of the juridical process as a political tool was a legitimate - or politically and morally defensible - act. Japan and England under Cromwell are more problematic cases as neither the means nor the ends of the political manipulation of the juridical process seem compelling. In Rwanda and Bosnia, the imposition of some form of juridical proceedings by parties who are strangers to the conflict seems futile. Northern Ireland suggests that, without some clear winner, neither side has an interest in these types of prosecutions.
Thus, the recent filing of genocide charges against Sudan’s president, Omar al-Bashir, by Mr Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court (ICC), may be viewed by many observers as a principled act of symbolic significance for international law, but the move to sober minded observers is politically motivated and highlights the defacto double standard applied to cases of genocide, war crimes and crimes against humanity.
Those who have followed events in Darfur closely will know very well that Sudan’s President Omar Bashir leads a group of political and military leaders responsible for the serious and large-scale crimes against Sudanese citizens that the country’s military forces, with the assistance of paramilitary groups and militias, commit every day in the region. These citizens are guilty only of belonging to the three tribes (Fur, Masalit, and Zaghawa) that spawned the rebels who took up arms against the government a few years ago. Any step designed to hold Sudan’s leaders accountable for these crimes is without question a bold step in the right direction. It is however puzzling for a number of reasons.
Firstly, the request for arrest warrants, and if granted by the ICC judges should have remained sealed and only made public once Mr Bashir had traveled out of Sudan, where he could have easily been arraigned, if that was the intention.
The court’s jurisdiction over the crimes in Darfur has been established pursuant to a binding decision of the United Nations Security Council, which means that even states that are not parties to the ICC statute must execute the court’s orders and warrants. That being the case, It is very unlikely that Sudan will execute the warrants should it be issued or that Bashir will hand himself to The Hague, instead he will refrain from traveling abroad.
Secondly, why seek a warrant for only Bashir and leave out his associates in political and military leadership who helped him plan and execute the orders. What this means is that had Adolf Hitler been alive in 1945, we wouldn’t have had Nuremberg and the 21 indictees.
What about the charges against Bashir? In arguing his case, Mr Moreno-Ocampo's reasoned that there were "reasonable grounds" for believing Mr Bashir bore criminal responsibility on 10 counts of genocide, crimes against humanity and war crimes.
He had allegedly "masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity" after they rebelled. "His motives were largely political," Mr Moreno-Ocampo said. "His alibi was a 'counterinsurgency'. His intent was genocide."
Pro-government militias allegedly followed Mr Bashir's orders to attack and destroy villages from the three groups, pursuing survivors into the desert. The crimes against humanity centered on Inflicting conditions of life calculated to bring about these groups' physical destruction, by forcing over 2.3 Million people into dehumanizing conditions in the camps. Those who reached camps also constantly faced further violence, Mr Moreno-Ocampo alleged:
"In the camps Bashir's forces kill the men and rape the women. I don't have the luxury to look away. I have evidence." He said
Mr Moreno-Ocampo accused the Sudanese president of using his "absolute control" of the state apparatus to conceal the truth and protect his subordinates "in order to secure their willingness to commit genocide".
Even to a layman, are these not the conditions that played out in northern Uganda for over two decades? Following a referral by President Yoweri Museveni (who is also party to the crimes he referred “to be investigated”) the ICC announced in January 2004 that it was to investigate the brutal conflict in northern Uganda. Human rights bodies and analysts immediately called for the investigations to comprehend atrocities and violations by both LRA and the Ugandan government.
Amnesty International and Human Rights Watch, both of whom have published reports compiling the atrocities committed in the course of the war in Uganda, issued almost identical statements soon after the ICC announcement. AI argued that "any court investigation of war crimes and crimes against humanity in Northern Uganda must be part of a comprehensive plan to end impunity for all such crimes, regardless of which side committed them and of the level of the perpetrator." Similarly, HRW called the "chance for [an] impartial ICC investigation into serious crimes a welcome step," asserting also that "the ICC prosecutor cannot ignore the crimes that Ugandan government troops allegedly have committed."
The rest as they say is history, one thing though remains clear, if Bashir bears sole responsibility for the simple reason that he is the government, the Commander-in-Chief and the protector of his people, then why are the same standards not applied universally.
In the DRC, where over 4.7 million people were slaughtered for instance (Uganda has already been found guilty in a international court of being a party to the onslaught and plundering), the ICC has only gone after Thomas Lubanga on charges of forcefully recruiting children into armed combat.
Jean Pierre Bemba a former Congolese warlord and ex-presidential candidate on the other hand has been charged with mass rape and mass murder in Central African Republic's conflict in 2002-2003, his crimes in DRC are not in the spot light. What about justice for the 4.7 million dead?
In Uganda, in direct contravention of the Geneva Conventions, Article 17 of Protocol 2, over 2 million Ugandans were firmly banished to the dehumanizing conditions of the “protected villages”; some were infact bombed out of their villages with lives, property and food destroyed. The decision to deport entire populations into the camps was announced on 27 September 1996, long after the deportation had began, President Yoweri Museveni informed members of the Parliamentary Committee on the Offices of the President, Prime Minister and Foreign Affairs that the authorities were going to establish "protected villages"; the president contended that, “the measure would leave the countryside open for UPDF confrontation with the marauding remnants of the rebels now terrorizing innocent people" [The New Vision, 29 Sep. 1996].
For the Acholi people, according to a Ministry of Health report published in July 2005, up “to 1000 died per week needlessly, 5.8/1000 children died per day; 2- 3 people committed suicide per day out of despair; women and young girls were raped and abused at will and up to 12 - 30% of the population was HIV positive” – the death toll in northern Uganda, is far greater than that in Darfur – the “protected villages” being the single largest killer.
Once the true extent of the atrocities in the camps was known, a maelstrom of atrocity propaganda was unleashed by the NRM spin doctors to cover up the camp origins and what was happening in them.
The “protected villages” inmates and counter insurgency experts thus concluded that the creation of “protected villages” was a well calculated and coordinated political decision by the NRM government to not only punish the northern population but keep them under conditions they could be easily controlled.
Legal experts also concluded that Museveni would not have initiated a prosecution of the LRA leadership if he did not think he could control the process; it was clear from the offset that the government was ready to cease cooperating with the ICC at any time if it appeared that its own military would have been the subject of the inquiry.
Like in the Sudan case, the prosecutor Mr Louis Moreno Ocampo, had the discretion to decide to include crimes by the UPDF (including striking off the names of former LRA commanders who are now fighting for president Museveni), but he was persuaded not to do so by the international community and Museveni. The same international community that is now split on the arrest warrants for Omar Bashir. The United States which is not a signatory to the ICC statute, Britain and France, want Bashir prosecuted, but China and Russia, who maintain strong political, economic and military links with Sudan, are opposed to the possible indictment.
Unlike DRC and Sudan, the prosecutor sees the guarantee of impunity to the Ugandan government as price worth paying for “referring” and maybe ensuring a first “successful” case for the ICC.
If the goal of the International Criminal Court is to politicize the prosecution of war crimes, disregard the purpose for which it was created for, by investigating and prosecuting on equal terms all perpetrators of genocide, crimes against humanity and war crimes, then it is doomed to failure.
Precedents have shown that the form of human rights trials that follows a conflict is determined by the outcome of the conflict. To presume otherwise is to ignore the history of such trials. Had Slobodan Milosevic prevailed in his efforts to "cleanse" the world of most Albanians, he might very well have demanded prosecution of the few survivors for their war time "atrocities" rather than face ruling his nation as an indicted war criminal. The untenable position the ICC will find itself in is the prosecution of the vanquished after every conflict or deciding on an ad hoc basis which group is the morally superior.
The writer is a human rights advocate in the UK; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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