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The Fallacy of War Crimes


Tuesday, September 4, 2007.


By Patrick Gathara


The death sentence and the hanging of Saddam Hussein last year, while fully deserved, is just the latest chapter in the sorry history of the selective application of international law.

The charge of “crimes against humanity” was first articulated in reference to the Armenian Genocide of 1915-18. According to


"On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". This joint statement stated:

"[i]n view of these new crimes of Turkey against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres".


However, the Turks were never formally prosecuted under international law. The failure to hold them to account paved the way for the Nazi Holocaust. In 1939, just before the Nazi invasion of Poland and the beginning of the Second World War, Adolf Hitler told his generals:


“The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the vital living space that we need. Who today still speaks of the Armenians?”

Following that, war crimes trials were organised at
Nuremberg and in Tokyo to prosecute the surviving Nazi and Japanese leaders. One of the charges they faced was, ironically, crimes against humanity. Chief Prosecutor Robert Jackson described them thus: “Four great nations, stung with injury, stay the hand of vengeance and subject their captive enemies to the judgement of the law … one of the most important tributes that Power has ever paid to Reason”.


However, according to Cesare Romano, of the New York–based Center on International Cooperation, "[the trials'] ultimate legitimacy rested on the victor’s right to decide the fate of the defeated enemy rather than on law”.


The London Charter of the International Military Tribunal, the decree that set down the laws and procedures by which the trials were to be conducted, defined that only crimes of the European Axis Powers (Italy, Germany and Japan) could be tried.


It was also held that it would not constitute a defense to argue that the Allies had done many of the same things the Axis Powers were being accused of. In fact, one of the most important tributes that Power has ever paid to Reason turned out to be nothing more than revenge cloaked in a veneer of international jurisprudence -victors' justice.

More recently, although the systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations in 1976, not one of the apartheid era leaders was ever sent to
the Hague.


While ad hoc tribunals were set up to try those responsible for the genocide in Rwanda and "ethnic cleansing" in the former Yugoslavia, none was established for South Africa. In fact, the "Great Crocodile" P.W. Botha, who oversaw some of the worst atrocities, died peacefully last year without ever so much as apologising for his crimes.


In fact, South African national flags were hung at half-mast and the government offered to grant him a state funeral inspite of his pooh-poohing the Truth and Reconciliation Commission set up to probe apartheid abuses and the fact that the defunct flag of apartheid South African still flies outside his home -  the symbolism of the flag defines South Africa as an inherently white nation, recognizing the country's British and Dutch ethnic roots, but offering no symbolic recognition of the black majority.

Widespread colonial era abuses in
Africa have similarly not merited investigation by the international community. Neither have the massacres in Mao's China, Stalin's Russia, Pinochet's Chile


According to Niko Kyriakou, the Cambodian government has since 1997 sought the United Nation's (UN) help to create an international tribunal to bring to justice about a dozen living suspects, most in their early 70s, for their roles in the starvation, forced labor, arbitrary killings, and torture that were the hallmarks of Khmer Rouge rule. However, nine years later, no Khmer Rouge figure has stood trial for the deaths of up to 3 million Cambodians between April 1975 and January 1979.

As reported by the UN's
IRIN, in the aftermath of the First World War French and British moves to try Kaiser Wilhelm II were successfully opposed by the
USA which feared a breach of head-of-state impunity.


While nowadays this idea of impunity is discredited, there are still a few former leaders who seem immune from prosecution. As former Liberian strongman Charles Taylor languishes in a cell at the Hague, Ethiopia's Mengistu Haile Mariam, who directed the 'Red Terror' of the 1970s lives comfortably in exile in Zimbabwe. Indonesia's Suharto, widely believed responsible for the deaths of twice as many people as Saddam Hussein and Slobodan Milosevic combined, lives free in a posh residential district of Jakarta.


Here in Kenya, our immediate past president, Daniel Arap Moi, whose tenure saw ethnic cleansing campaigns affecting thousands in parts of the Rift Valley, continues to enjoy his well-padded retirement package undisturbed by thoughts of answering to any international tribunal while many of his victims languish in refugee camps awaiting resettlement by the new government. This, in addition to over a billion of pounds sterling he was alleged to have stolen and stashed in Western banks.

And, 60 years after Nuremberg, no US President will ever stand trial for waging what many experts on international law consider to be "a war of aggression" in Iraq nor for the bungled occupation that has cost, according to recent estimates, well over 650,000 Iraqi lives, which is more than double the number of Iraqis killed by Saddam.


No general, cabinet member, senator or congressman will ever be held to account for the torture - a war crime - of both Iraqi and suspected Al Qaida detainees even when this is now the declared and congressionally approved human rights policy for the country.

One would truly have to be blind to believe that international justice is blind.


Main picture: Former Kenyan President Daniel Arap Moi with George W. Bush at a White House visit.


Patrick Gathara is a journalist and cartoonist based in Nairobi, Kenya. He blogs at http://gathara.blogspot.com


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