Damn right, says George W. Bush in his memoires, I ordered to perform waterboarding on suspected terrorists. And damn right, Bush goes on, I ordered to bomb Afghanistan after 9/11 - perfectly knowing that the cell responsible for the twin towers fly-in operated out of Germany and that most of the perpetrators were Saudi citizens. And damn right again, I ordered the occupation of Iraq under the false pretext of weapons of mass destruction, that were never found, and of linking Saddam Hussein to Al Qaeda. Damn right, damn right, damn right.
But damn right is plain wrong. And to deal with matters that are wrong in international politics and warfare, there is the International Criminal Court (ICC), established in 2002 to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression. Allright, aggression it is, let's drag Bush to The Hague, try him and sentence him to be never to be seen again. And to make his life even more miserable, give him Tony Blair as a cellmate.
For a reason unknown to me, the ICC currently cannot exercise jurisdiciction over crimes of aggression. To make things more difficult, the International Criminal Court is meant to complement an existing national rule of law: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute crimes covered by the ICC. Are the United States investigating against Bush junior? Not to my knowledge. They rather build him a presidential library and let him go on a book selling tour, although his reading and writing abilities are highly disputed. And then there is another hurdle: the ICC can generally exercise its rule only then, when a person's state has accepted the jurisdiction of the court - which the US have not: they signed the Rome statute, the founding document of the ICC, but never ratified it.
Nicely done USA. You helped establish the court, signed the treaty, but moved yourself off the hook and let others bleed instead. For instance Jean-Pierre Bemba, the former vice-president of the Democratic Republic of Congo DRC. Bemba was arrested in Belgium two years ago and is now standing trial in The Hague to answer to charges that, in an earlier capacity as a rebel leader, he was responsible for a campaign of murder and rape by his soldiers. Or Omar al-Bashir, the Sudanese president, accused by the court of genocide, crimes against humanity and war crimes committed in Darfur and desperately wanted in the Netherlands. So arrest warrants for presidents are possible and they can be surrendered to the ICC? Of course they can, but your name must be Bashir or Bemba, not Bush! And apparantly you need to come from Africa. To date, the court has opened investigations into five situations: Northern Uganda, DRC, the Central African Republic, Darfur (Sudan) and Kenya.
The ICC member states. Green: signed / ratified. Orange: signed / not ratified.
It is very clear to me that what we have here is a new form of colonialism. The "West" - Europe, the United States - set up an international court in an European city, then stayed away from it and is now dragging the Africans to court instead, judging them and locking them up in prison cells in Europe. Although I do not in any way want to excuse the atrocities possibly perpetrated by the likes of Bemba and Bashir, some questions remain: to what standard do we hold these people accountable. Who has set the rules? Who implements them? Who penalizes which unlawful behaviour?
How does Europe deal with its long and brutal history of colonialism? Not at all it seems. I read an interesting article by Markha Valenta from the university of Amsterdam the other day, in which she tries to make sense of the success of islamophobia in Europe. Valenta makes the comparison between the Holocaust and colonialism - I'm aware of the delicate territory we are entering here - and argues that while the Holocaust unites Europe and sustains its projection of itself as an universalist project for human rights, colonialism is historicized in the worst sense of the word - as something so far away in space and time that those arriving in Europe from distant shores are seen to bring with them cultures and worlds far removed from both our European history and from our "present".
With other words: the Holocaust is our problem, colonialism is theirs! Nothing could be further from the truth. Europe out-sourced the consequences of the Holocaust by creating the state of Israel and having the Palestinians suffering under an colonialist regime of slick US educated politicians and orthodox settlers. But again, that's their problem, not ours. And we now in-source one of the consequences of colonialism, prosecuting crimes committed in former British, French or Belgian colonies. We once again apply our rules, our laws to countries we have left to their own devices some fifty years ago after we had exploited them until it was no longer sustainable. While at the same time the colonialists of today - the neo-conservatives, the neo-colonialists Bush, Blair and Cheney - run free, giving interviews and making money with tales from their battlefields.
For Omar al-Bashir there might be hope after all. Two weeks ago the US announced that they would consider removing Sudan from their list of terror sponsoring states in exchange for Sudan letting the upcoming referendum in South Sudan go smoothly. Could it be that with further dealings with the world leader, al-Bashir could even get off the plane to The Hague? I wouldn't be surprised: Human rights are realpolitik, Damn Right!