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By Amitabh Pal, February 12, 2009 The Progressive
It should look into the allegations, not the least to refute the
assertion that the court is an instrument of the West.
The International Criminal Court soon faces a big test—a test that
could reveal whether it is truly an independent institution.
The Palestinian Authority has asked the court’s chief prosecutor,
Luis Moreno-Ocampo, to examine if Israel was guilty of war crimes
during its recent Gaza operation. Moreno-Ocampo should take a look
into the allegations, not the least to refute the assertion that the
court is an instrument of the West.
I have been a big supporter of the court and have written in its
favor for a decade now, ever since it was being formed. But an
article a few months ago in The Nation by Professor Mahmood
Mamdani of Columbia University gave me pause. Mamdani insists that
the International Criminal Court can be seen as the legacy of a
tradition of Western paternalism toward the rest of the world, in
some sense displaying a continuity with colonialism. While Mamdani
overreaches in his argument and downplays the Bush Administration’s
opposition to the court (for more on that
see my January
2007 piece in The Progressive),
he does make some interesting points.
“The fact of mutual accommodation between the world's only
superpower and an international institution struggling to find its
feet on the ground is clear if we take into account the four
countries where the ICC has launched its investigations: Sudan,
Uganda, Central African Republic and Congo,” Mamdani writes. “All
are places where the United States has no major objection to the
course chartered by ICC investigations. Its name notwithstanding,
the ICC is
rapidly turning into a Western court to try African crimes against
humanity.
It has targeted governments that are U.S. adversaries and ignored
actions the United States doesn't oppose, like those of Uganda and
Rwanda in eastern Congo, effectively conferring impunity on them.”
Mamdani limits his analysis to Africa, not
delving into the obvious issue as to whether the International
Criminal Court should have considered a case against the Bush
Administration for its illegal invasion of Iraq. (In fact, Roger
Cohen points out in
a New York Times
column
that Moreno-Ocampo rejected pleas to try British forces in Iraq.)
Mamdani exposes a basic structural flaw with the International
Criminal Court: The U.N. Security Council can refer cases to the
court (even regarding a non-signatory) or, conversely, block any
such attempts. This gives an inordinate amount of clout to the five
permanent members, including the three Western powers. This explains
to a large extent the hesitance of the court's chief prosecutor to
take on the West or its allies.
In the case of Israel, Moreno-Ocampo faces a number of legal and
procedural hurdles. Israel is not a signatory to the court. And the
very legitimacy of the Palestinian Authority is in question,
especially after Hamas’s takeover of Gaza. Nevertheless, Moreno-Ocampo
has indicated—after initially declining the case—that he is
considering whether to go ahead, possibly including a
review of any
war crimes that Hamas may have committed.
The Obama Administration has already signaled its approval of the
International Criminal Court. U.S. Ambassador to the U.N.
Susan Rice two
weeks ago called the court
“an important and credible instrument,” indicating that the United
States is moving from confrontation toward co-optation.
Now is the time for the International Criminal Court to assert its
independence. Opening a case against Israel would be a good start.
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