By Keith Best
The war in Ukraine has demonstrated in a harsh manner, despite all the treaties about rules of war (the Geneva Conventions) and the criminal liability for prohibited acts or war crimes, crimes against humanity and torture, how easy it is for a military machine to ignore these and commit acts of horror and use prohibited munitions such as cluster bombs and chemical weapons which common humanity has outlawed during the last seventy years and beyond. The evidence or war crimes – attacking schools, hospitals and now shopping centres with no military value as well as shootings of civilians (recorded on film) – is mounting daily and, other than describing them as such, the West seems incapable of sufficient threat to stop them occurring. Sadly, it is so reminiscent of when Soviet soldiers entered Berlin at the end of World War II and raped and looted their way through the city.
It is not just in Ukraine. We have seen such activity in Myanmar, Sri Lanka, parts of Africa and elsewhere. It is not as though these acts are unrecorded or unseen other than by the perpetrators and victims – modern news coverage, satellite imagery and the use of the mobile phone document these actions in a way that can only demonstrate a carelessness or deliberate flouting of international norms by those who commit them. This is the modern curse – impunity.
Penologists maintain that the greatest deterrence to crime is not the penalty that might follow detection but the fear of detection itself. Those who perpetrate war crimes must know that they can be identified but, clearly, they feel that the cold hand of justice will never rest on their shoulder. The failure to address fully the issue of impunity is one of the greatest failings of the current international order.
The International Criminal Court (ICC) does not have its own police force. It can indict but has to rely on states parties to arrest those accused of crimes and bring them before the court to face trial. If states parties are unwilling or unable to do that there is no sanction against them but it makes a mockery of the whole process. It is arbitrary and raises its own problems if one then relies on a country’s secret service to effect snatches of those whom selectively they want brought to justice – such as Israel’s kidnapping of Adolf Eichmann – such is an equal failure of world order. Just as the UN agencies have immunity in order to be able to carry out their functions without fear of national interference so an international police force under the aegis of the ICC to execute its arrest warrants should be so immune. Article 105 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes and that representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. This has been translated into various national legislation such as the United Nations (Privileges and Immunities) Act 1947 in India. Perhaps we should now be pressing for such a funded force working on behalf of the ICC.
What is often overlooked, however, is that Interpol does have jurisdiction over war crimes. As its website states “Crimes such as genocides, crimes against humanity and war crimes are of serious concern to the international community. As well as the devastating effect on families concerned, these crimes have a lasting, destabilizing impact on the safety and security of communities, nations and regions for decades after they occur. Investigation and prosecution of these crimes are central to our common fight against impunity.” It acknowledges that with its global networks and technical tools it is in a unique position to enhance efforts of law enforcement authorities, international criminal tribunals and national prosecution services to investigate and seek justice for these criminal acts.
Interpol provides operational and investigative support to these partner organizations and to war crimes and fugitive investigators in its member countries. It also promotes and facilitates access to its services, technical tools, resources and expertise in the area of serious international crimes. It supports its member countries and partner organizations by sharing information and coordinating international investigations. It states that several of its projects on catching fugitives are related to war crimes. These include Project BASIC, and the Rwandan Genocide Fugitives Project. Its work in this field is defined in agreements with international courts and tribunals, and by resolutions adopted by its governing bodies and those of the United Nations.
Interpol recognises that investigating these types of serious international crime requires specialized training and knowledge and enhancing the capability of investigators is a priority for the organisation. Its International Training Course on Genocide, War Crimes and Crimes against Humanity has seen more than 100 investigators from 30 countries and six international organizations trained in the most up-to-date investigative skills. The aim is to establish standard practices in all areas, including collecting and processing of evidence related to mass atrocities and, also extending capacity for investigating and prosecuting sexual and gender-based violence.
Maybe we need more emphasis and support for the work of Interpol in this field – and certainly more publicity over what it is doing.
The time has come when we look not only to the existence of treaties and international organisations charged with certain functions to be able to discharge these through the goodwill and sense of international obligation and observance of the rule of law by nation states but to have enforcement mechanisms to ensure that those legitimate functions are not impeded. Russia in its contempt for international law and observance of the obligations into which it freely entered has demonstrated beyond peradventure how a rogue state can render such international order inoperable. In terms of prohibited activities and munitions in conflict the world has moved on in leaps and bounds but, clearly, in moral obligation to uphold such checks on unlimited war against civilians certain states have not. It is how to deal with them that should now be the focus.
Peace is never achieved at the end of the barrel of a gun so we must await the agreement that comes at the end of the Ukrainian conflict, whether it be months or years ahead and reached though stalemate, exhaustion or a change in regime and resolve. Even if that involves a ceasefire with an uneasy end to current hostilities (we should remember that both the DPRK and South Korea are still technically at war after the end of the war some seventy years ago) and a temporary acceptance of the status quo with Russia continuing to occupy a large part of the Donbass, it will be for Russian mothers to gauge whether that territory is worth the loss of 33,000 Russian sons, brothers, fathers dead/ wounded/ missing/captured (so far – and it mounts every month). Up until now 77,000 square kilometres of territory has been seized – that is 2 kilometres for each Russian soldier lost – a heavy price. It was the matriarchs seeing the body bags coming home that lost all public confidence in the war in Afghanistan.
Two unrelated engagements this week brought issues to a head for me. As part of the memorial service of the late Lord Judd, longstanding MP and then member of the House of Lords, former Director of Oxfam and campaigner against global poverty whom I had the pleasure of knowing through much of his work (he served on Ingvar Carlsson’s Global Governance Commission into which WFM had input) the Preamble of the Charter was read out. It will be well known to you all but, in this context, the telling phrases for me were “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” and “to ensure that armed force shall not be used, save in the common interest.” These are the issues on which we need to concentrate.
The second event was a church service on the International Day in Support of Victims of Torture at St James’s Church, Piccadilly, in the centre of London, arranged by Redress, a thirty-year-old charity which helps victims of torture receive recompense. It is a member of the Steering Committee of the CICC and has particular poignance for me as its founder, Keith Carmichael, was a prisoner client of Prisoners Abroad when I was its Director – he was then wrongly incarcerated in a Saudi Arabian gaol where he was routinely tortured. The service consisted mainly of a series of testimonies by torture victims. One was a female human rights defender in Libya who had campaigned for women’s rights who was threatened, insulted and beaten in government compounds whose case was brought before CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women) which found that Libya has violated her rights and ordered reparation (which Libya has failed to do). There was a talk by Richard Radcliffe (husband of recently released Nazanin from her Iranian ordeal) detailing the impact of torture on the individual and the family. A reading from Buried Truth by former Archbishop of Canterbury Rowan Williams quoting “words cannot be relied on to bury truth. Even when the winners have rewritten the history where a language and a civilisation have been destroyed, what is suppressed and buried so often returns. You think you have silenced the dissenting voices but your own words carry the tell-tale trace of what you have tried to deny. The buried truth finds its way in from the margins, laps against the shore of the winners’ version.”
For torturers and others who deliberately breach international and humanitarian law there must be no place to hide. Their cards must be marked and they must be held to account. Justice is the great antipathy to barbarism and we must ensure that justice triumphs.