Connect with us

International Law

Refugee Trepidations: Protection Palisades and How to throw down the Gauntlet

Avatar photo

Published

on

The moniker “refugee” is identified by the academics, aid agents, media persons, governance architects, political establishments from multiple perspectives regarding their protection, rights, and responsibilities. Today, refugees depict the global landscapes with conflict and divergence of assessments that invigorate the global normative debate on the protection, resettlement, reintegration, and management of the 65.6 million of refugees worldwide. The refugee problem is convoluted, and refugee groups and stakeholders create difficulties in addressing global canvas of refugee issues. There are few questions to attend the refugee concern such as who is a refugee in the present circumstances and what are the most critical issues before the refugee communities and institutions entrusted with their protection, collaboration, and interaction? I will try to address this miasma by concentrating on the legal definitions of the term “refugee” and what are the categories of displaced people included and nature of issues attended by the impugned definition.

The Contours of Refugee Definition?

There are two scenarios to appreciate and understand the legal definitions, one is of refugees who have been grappling with the problems of multidimensional implications and second is of nation-states and institutions who have been striving hard to protect the refugees. These definitions govern the standard of qualification where under legal and physical protections are made available to the refugees fleeing from the well-founded fear of persecution and conflict. The principal definition of a refugee has been provided in the 1951 UN Convention Relating to the Status of Refugees (UNCSR) and its 1967 Additional Protocol Relating to the Status of Refugees (APSR) that delineates a refugee as an individual or a person “owing to a well-founded fear of being persecuted due to the reasons of religion, race, membership of a particular social group or political opinion, nationality is outside the country of his nationality, and is unable or — unwilling to make available to himself or herself of the protection of that country.”It is evident from the above statutory definition that it does not cover the refugee situations of mass exoduses from war.

However, the Organization of African Unity has developed refugee protection arrangement at regional level by concluding and adopting the 1969 OAU Convention where under the definition of refugees has been broadened that include group of people and individuals who face persecution as well as every individual who, “owing to foreign domination, occupation, external aggression, or events seriously disturbing the public order…is compelled to leave…to seek refuge or reception in another place outside his country of origin or nationality.”However, OAU refugee definition must be treated as an element of complementarity to the UNCSR refugee definition. At international level, the instruments such as UNCSR and APSR have been recognized as the subject-matter of International Refugee Law (IRL) along with the relevant provisions of a vast pool of instruments of International Human Rights (IHRL), International Humanitarian Law (IHL), Customary International Law (CIL) and International Criminal Law (ICL).

In 1984, Latin American states adopted the Cartagena Declaration on Refugee (CDR) where under a new ground “massive human rights violations” was added to the grounds of refugee qualifications at the Colloquium on “the International Protection of the Refugees in Latin America”, Panama, and Mexico, held at Cartagena, Colombia on 19-22 November 1984.Latin America widened the refugee definition and proposed new approaches to the humanitarian needs of refugees and displaced persons in a spirit of solidarity and cooperation. However, the CDR is a non-binding agreement, but it carries collective ethical and moral commitments beyond Latin America. The 30th anniversary of the CDR was commemorated in Brasilia on 2-3 December 2014 when governments of Latin America and the Caribbean assembled and 28 countries and three territories of the Latin America region and the Caribbean adopted the Brazil Declaration known as “A Framework for Cooperation and the Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean” and a Plan of Action called “A Common Roadmap to Strengthen the Protection and Promote the Sustainable Solutions for Refugees, Displaced and the Stateless Persons in the Latin America and the Caribbean within a Framework of Cooperation and the Solidarity.”Therefore, the people or group of persons crisscrossing international borders to escape civil strife, conflict or war have also been recognized as refugees on the prima facie basis in Africa and Latin America as well as Asia and Middle Eastern region. The Poverty-stricken countries in the region prefer the expanded refugee definition as they do not have the proper administrative wherewithal to determine the refugee status. Among the Global North countries, the mass exoduses are not automatically recognized as refugees rather they are subjected to the “individual refugee status determination” procedure under the restricted refugee definition of UNCSR.

Definitional Dynamics and Delineation

The international definition of the term “refugee” is constricted and restricted,but its dynamics are susceptible to much delineation that is rudimentary as well as fragmentary and cannot be applied to all situations of human displacement and migration and refugee groups and refugee exoduses. These situations may have profound ramifications for the entire gamut of refugee entitlements from migration, transition,and destination based on their endurance and existence. The expression “refugee-like situations” is used to portray people such as Biharis in Bangladesh, Burmese in Thailand and Malaysia, Bedouin in Kuwait and Iraq who are stateless and deprived of the national protection of their countries of origin, countries of nationality and countries of habitual residence but they have not been recognized as refugees under the IRL. Therefore, the situation of refugees in the age of Securitization and Restrictionism of Asylum has become extremely precarious,and 1954 and 1961 UN Conventions on Statelessness and Reduction of Statelessness respectively have done a fraction of service under the auspices of the UNHCR in assuaging their predicament. Further, the phrase “internally displaced persons” (IDPs) refers to people who move or migrate due to the same reasons as refugees within their homelands,and they do not cross international borders. There is no international body specially empowered to look after the IDPs, but the UNHCR can take their responsibility upon the request of a national government and the UNHCR designate them as “People of Concern to UNHCR” but national governments generally do not invite the good offices of the UNHCR or other agencies in the name of sovereignty, homeland security, and terrorism.

The international legal definition of expression “refugee” also makes an exclusion of those people who do not flee or move due to persecution but they migrate due to climate change-linked human displacement in the forms of droughts, famine, floods, earthquakes, environmental degradation, global warming, depletion of ozone layer, erosion of landmass of littoral areas, and soaring of sea-level. It is a fact that such a new class of people now called “forced migrants,” “forced displaced peoples,” “climate migrants,”or “climate refugees” who desperately require international protection and humanitarian assistance. Similarly, the catchphrase “refugee” also rejects people who move due to economic considerations owing to economic apartheid based nationalism, economic boycott based on communalism, economic ostracism based on casteism, economic immigration based on political liberalism and extreme poverty and such peoples are branded “economic migrants.” Another group of people is “asylum seekers” who migrate as consequences of political opinions, and offenses and diplomatic omissions. They get refugee status provided their claims are adjudicated upon by the IRL.

Persecution Narratives

The refugees flee, leave, move or migrate from their homelands due to the persecution that is a central ground for their protection, recognition,and reception as refugees in the land of asylum. However, there is a debate in the juridical domain as to what signifies and frames the “persecution” as some stakeholders catechize should persecution be state-sponsored, state-patronized or state-linked and riveted upon individuals, or should pervasive practices, audacious attitudes and autochthonic approaches in the society meet the requirements for persecution. Even there are plenty of arguments that gyrate around as to what are the contours of human rights abuses and cultural practice and common tradition. These questions crop up in gender- connected instances; i.e., many countries in Afro-Asia regions practice female genital mutilation (FGM), Taliban regime has thwarted girl education that too against Islamic tenets, prohibited the sexual orientation predilections of Afghan men and women, Iran handed down severe punishments to gays and lesbians and sent them to gallows and it is an offence to talk of LGBTQ rights in many countries. Nevertheless, there are many critical issues of the international forced migration studies that have not been ruminated according to a gendered perspective, and in turn, many crucial topics for gender-linked have been neglected when studying migrants and mobile people while answering a pertinent question as to how marital status, age, and ethnicity shaped migration and settlement patterns in specific economic, cultural and political contexts.There has to be a more razor-sharp dialogue between migration studies and gender studies while taking into account the fact that male and female roles were, and are, the result of social, cultural and economic construction from the late Middle Ages to the early 21stcentury.Therefore, gender-related aspects and dynamics have shaped the grounds for granting asylum and refugee status to persons, of course, on a case-by-case consideration. In many countries, religious, racial, linguistic, coloured and cultural minorities are subjected to persecution in violation of IHRL, IHL, IRL, CIL,and ICL,etc. However, international understanding and consensus are conspicuously absent on the global norms and human rights standards in this regard.

Global Trepidations

The national governments and international organizations and bodies are significantly engrossed to formulate international policy framework to address the refugee issues and population mobility. Refugees, asylum seekers, and IDPs perceive legal protection as the principle and most enduring global issue. The responsibility to protect (R2P)is based on the principle of sovereignty where under nation-states have the primary obligation to protect their citizens and subjects against all hostile circumstances. But, unfortunately, modern nation-states are flagrantly recalcitrant to perform their international human rights obligations. These legal protection obligations are embedded in the concept of sovereignty, and the international community is equally obligated to maintain international peace and security under Article 24 of the UN Charter. Moreover, there are umpteen and specific international legal arrangements, covenants, charters, pacts, treaties and declarations relating to IRL, IHRL, IHL, CIL, ICL and municipal law to protect the human rights of all across the world. Even the legal protection of refugees is central to the mandate of the UNHCR while taking into account all policy matters of refugee protection backed by the UN Commission on Sovereignty and Intervention. However, there are many issues involved in the R2P such as at what stage does international community decides the international invention to protect the refugees? What should be a threshold of military intervention and its legal justification? There have been instances of international intervention like the Gulf War (1991-1992), Somalia (1992-1993), Bosnia Herzegovina (1995) and Kosovo (1999) whereas international intervention was not invoked in Rwanda (1994). However, currently, there is as many as 110,000 UN Peacekeeping field personnel including military, police, and civilians and 14 UN peacekeeping missions are active across the four continents. In past 70 years, more than 1 million men and women have served 70 UN peacekeeping operations. Therefore, nation-states must follow the R2P Covenant in the situations of ethnic cleansing, genocide, war crimes, and crimes against humanity, rape, murder, and massive violations of human rights and beyond.

International humanitarian assistance organizations have been in Catch-22 situation that requires as to how best extending assistance and protection during conflicts. There are challenges when humanitarian assistance, UNHCR officials, and NGO staff per se become the target of combatant parties. Therefore, international humanitarian agencies confront incredibly hostile scenarios that pose pertinent questions like do these humanitarian agencies require military intervention for the security of UNHCR officials, NGO staff, and assistance operations? Should these agencies circumvent the principles of neutrality and impartiality while performing their works? Should these agencies prefer to remove the people from conflict zones as a solution? Are there options before the humanitarian agencies to prefer withdrawal from the zones of hostilities while maintaining the equilibrium in their responsibilities to protect refugees, displaced people and the workforce? These challenges require a reliable solution at the anvil of human rights.

There is another dimension to the current discourse on the lego-institutional response of the aid agencies during population migration, protection in the refugee camps and treatment of combatants, military deserters and war criminals. Under international law, refugee camp communities and voluntarily migrant populations are often considered vulnerable civilian targets, but people are privy to military engagement are excluded from refugee status and benefits incidental there under. However, there are sizable armed combatants engaged with opposition armed forces in their country of origin whom I address as “refugee crusaders” who have been witnessed fighting in their homelands or lands of their reception particularly the Rwandans in the Democratic Republic of the Congo aided and supported by other countries and Afghan Mujahedeen in Pakistan who were aided and armed by the Pakistan, US, Saudi Arabia, and the China to fight and flush out the Soviet military from Afghanistan.

Burden-Sharing v. Shared-Responsibility

The international community is also confronted with another prominent dimension of refugee exoduses into the adjacent countries. The “Global North” countries do not approve of the comprehensive regional refugee definitions contained in the 1969 OAU Convention and 1984 Cartagena Declaration where under mass exodus of refugees have been recognized. But the disdaining the idea of R2P, contempt for humanitarian sensitivities, municipal lego-institutional political ramifications, entreating for systematic population migration, unwillingness of the neighboring nation-states to host the mass influxes of refugees and disregard for the concept of global refugee shared-responsibility(GRSR) have paved the way for temporary refugee protection (TRP) programmes where under temporary refugee status (TRS) is granted in the Global North countries, and it is called “B-status” or “Extended Leave to Remain” in Europe. These TRP programmes have the provisions to grant “temporary residence permits” to people in flight sans the full implementation of the 1951 UNCSR norms on refugee status and IHRL standards. For examples, the Bosnians and Kosovars in Western Europe and Salvadorans in the US were granted TRS. However, the principle of TRP is circumscribed by a vortex of complications such as offering the TRP by many countries to evade their permanent global obligations enunciated in the IRL, IHRL, IHL,and CIL, case-by-case approach based conferment of TRP with protracted parleys on “burden-sharing” by many states and the justifiable allocation of refugees among receiving states. The concept of “burden-sharing”about refugees has a volatile history,and it commenced in the 1950s as a principle for promoting international solidarity among the refugee-hosting countries.

However, the idea of “burden sharing” is a conspicuous gap in the IRL; therefore, it requires a better lego-institutional response mechanism. Therefore, the United Nations General Assembly (UNGA) has adopted the New York Declaration (NYD) on September 19, 2016, where under more than 193 nation-states committed to the principle of “equitable burden-sharing” and responsibility to host and protect the refugees in mass flight. The New York Declaration contemplates a “Global Compact on Refugees(GCR)” having two modules namely the “Comprehensive Refugee Response Framework (CRRF),”and the UNHCR has been entrusted to formulate the entire GCR. The newest third draft of the GCR has been released on June 04, 2018 and the UNGA shall adopt the final draft of the GCR by the end of 2018. However, it remains to be seen to what extent the GCR would bridge the refugee protection gaps in existing IRL on the burden-sharing. However, the doctrine of Non-refoulement must be invoked to assure the nation-states to grant TRP,but the contemporary discourse is on the timeframe as to when and how refugees should be returned to their homelands. Who should decide their return and what are the contours of such a replacement? However, their return must have IHRL components relating to dignity and safety while critically appreciating circumstances in their homelands.

These protection measures are inherent and entrenched in the principle of “Non-refoulement” enshrined in Article 33 (1)of the 1951 UNCSR stating that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his religion, race, nationality, membership of a particular social group or political opinion.”Now, the principle of “Non-refoulement”is an inalienable part of customary international law applicable to all nation-states regardless of their being privy to 1951 UNCSR with its 1967 Additional Protocol or not and it is also central to municipal legal systems. However, it is still debatable whether “Non-refoulement” is a jus cogens of international law or not but Refoulement and Restrictionism are part of modern nation-states,and refugee receiving governments are hell bent to wind up refugee camps. For example; Vietnamese in Hong Kong, Rwandans in Tanzania, and North Koreans in China, some categories of refugees in South Asia, and Syrian refugees in few European States have been bracing these situations that violate the principle of “Non-refoulement.”

There is No Wrap-Up

There is no wrap-up in evolving the understandings and exploring the options to provide legal protection to refugees around the world,and it requires a proper appreciation of normative perception of protection and humanitarian complexities entrenched in the refugee well-being. The refugee problem in the Global North countries has triggered the societal tensions and anxieties. Many national governments have been extracting fiscal support from rich donor governments in the name refugee hosting without addressing the local repinements due to the presence of refugees. Therefore, the Global North governments ought to be vigilant regarding shifting responsibility for hosting refugees in the Global South or unstable countries. In Europe, recent elections in Germany, France,and Austria have shown that it was immensely challenging to mollify the native people about the refugee protection and it resulted in detrimental repercussions for the political class, regional stability,and homeland security.

There are numerous stakeholders like national governments, academics, refugee crusaders, refugee aid people, RSD personnel and the media that can generate public understanding, motivate international community and formulate pragmatic policies on legal protection gaps under the IRL.The comity of nations is responsible for protecting refugees, motivate all refugee stakeholders including national governments and support the GCR mechanism. The UNHCR has successfully established itself as a catalyst in protecting, fostering and managing refugees and their mobility across the world and its role must be central to the success of the GCR. The nation-states and all the stakeholders must strive to accomplish the human rights-oriented transformation of the lives of refugees and the host communities.There is an indispensable requirement of refugee participation in the Global Refugee Forum under the GCR to disseminate information and share best practices from a multitude of perspectives based on age, caste, creed, ethnicity, disabilities, diversity, gender, race, religion, social origin, political opinion, and regional affiliations. The UNHCR must develop these elements as an intractable part of the GCR regime.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

Continue Reading
Comments

International Law

Shaping a 21st-century world order amounts to a patchwork

Avatar photo

Published

on

What do Moroccan arms sales to Ukraine, a transnational Russian Iranian transit corridor, and US assistance in developing a Saudi national strategy have in common?

Together with this week’s Russian-Iranian financial messaging agreement and Chinese President Xi Jinping’s December visit to Saudi Arabia, they are smaller and bigger fragments of a 21st-century world order in the making that is likely to be bi-polar and populated by multiple middle powers with significant agency and enhanced hedging capabilities.

So is the competition between rival US and Chinese technologies for which the jury is still out.

For the two likely dominant powers, the United States and China, the building blocks are efforts to line up their ducks in a bipolar world.

For Russia, they involve hanging on to its pre-Ukraine war status, in part by deploying its Wagner Group mercenaries to the Sahel; devising ways to circumvent sanctions; and hoping that time will work in its favour in what was supposed to be a blitzkrieg but has turned into a drawn-out slugging match.

For middle powers, the name of the game is carving out their own space, leveraging their enhanced influence, and seeking advantage where they can.

The result is that weaving the 21st century’s tapestry amounts to a patchwork in which some fragments will have long-term effects while others may not even register as a blip on the radar.

Take, for example, Morocco’s decision to give Ukraine some 20 refurbished Russian-made T-72B battle tanks. The deal made Morocco the first African, if not the first Global South nation, to militarily aid Ukraine.

The move, almost a year into the Ukraine war, is likely to have been motivated by short-term considerations, including Russia’s close ties to Morocco’s arch-rival Algeria and US recognition of Morocco’s claim to the formerly Spanish Western Sahara, rather than long-term 21st-century world order considerations.

Even so, Morocco’s breaking ranks with much of the Global South serves the US goal of sustaining the current world order in which it is the top dog, even if its power diminishes.

It doesn’t fundamentally affect China’s goal of rebalancing power in the existing order to ensure that it is bi- rather than unipolar.

The loser in the deal is Russia, which, like Iran, wants to see a new world order in which the United States is cut down to size.

The tank deal may not be a significant loss for Russia, but it does suggest that horse trading is a critical element in weaving the fabric of a new order.

So is mutual interest.

Like the arms sale, the agreement between Russia and Iran to create a financial messaging system that would allow their banks to transfer funds between one another and evade sanctions that block their access to the global SWIFT system is unlikely to have a major impact on the structure of the new world order.

Russian and Iranian efforts to link Europe with the Indian Ocean, centred on 3,000 kilometres of rail and sea and river shipping, are potentially far more significant.

The transport corridor would help reshape trade and supply networks in a world that seems set to divvy up into rival blocs. Moreover, it could shield Russia and Iran from US and European sanctions as they forge closer economic ties with fast-growing economies in Asia.

Russia and Iran are not just looking at India, which sits at one extreme of the corridor.

They also expect to capitalise on their links to China. All three are members of the Shanghai Cooperation Organisation (SCO), and China and Iran are close to becoming members of the Russia-dominated Eurasian Economic Union (EEU) free trade zone.

Of a similar potential impact on a future world order is US assistance in Saudi Arabia’s development of a first-time-ever long-term vision for the kingdom’s national security, an essential building block in Crown Prince Mohammed bin Salman’s effort to modernize his military.

Saudi Arabia expects to disclose its strategy later this year. It would codify “the kingdom’s strategic vision for national security and regional security,” according to Gen. Michael “Erik” Kurilla, the top commander of US forces in the Middle East, who is advising his Saudi counterparts.

Shaping Saudi strategy as well as military modernization may be the United States’ best bet to imbue at least some of its values and complicate the establishment of similar defense ties with China or Russia. Moreover, it would enhance the kingdom’s ability to absorb and utilize US weapons systems.

“The Saudis, under MBS’s (Mohammed bin Salman’s) leadership, now recognize (their) deficiencies and seem, for the first time, determined to address them in partnership with the United States and to a degree with the United Kingdom,” said political-military analyst and former Pentagon official Bilal Y. Saab.

That will undoubtedly register on the geopolitical chessboard, even if small moves also count for something.

Continue Reading

International Law

Undemocratic United Nations and Global Peace

Published

on

War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

Continue Reading

International Law

United States thinks it’s ‘the exception to the rules of war’

Avatar photo

Published

on

The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom and France fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.

Guess what superpower has never signed the ICC? Here are a few hints? – writes Rebecca Gordon in an article at “The Nation”:

Its 2021 military budget dwarfed that of the next nine countries combined and was 1.5 times the size of what the world’s other 144 countries with such budgets spent on defense that year.

Its president has just signed a $1.7 trillion spending bill for 2023, more than half of which is devoted to “defense” (and that, in turn, is only part of that country’s full national security budget).

It operates roughly 750 publicly acknowledged military bases in at least 80 countries.

In 2003, it began an aggressive, unprovoked (and disastrous) war by invading a country 6,900 miles away.

Yes! The United States is that Great Exception to the rules of war.

While, in 2000, during the waning days of his presidency, Bill Clinton did sign the Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush administration was ramping up its Global War on Terror, including its disastrous occupation of Afghanistan and an illegal CIA global torture program, the United States simply withdrew its signature entirely. Secretary of Defense Donald Rumsfeld (photo) then explained why this way:

“The ICC provisions claim the authority to detain and try American citizens — U.S. soldiers, sailors, airmen and Marines, as well as current and future officials — even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.”

The assumption built into Rumsfeld’s explanation was that there was something special — even exceptional — about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.

Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens, Afghanistan is. In 2018, the court’s chief prosecutor, Fatou Bensouda, formally requested that a case be opened for war crimes committed in that country. ‘The New York Times’ reported that Bensouda’s “inquiry would mostly focus on large-scale crimes against civilians attributed to the Taliban and Afghan government forces.” However, it would also examine “alleged C.I.A. and American military abuse in detention centers in Afghanistan in 2003 and 2004, and at sites in Poland, Lithuania, and Romania, putting the court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.

So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State.

When it comes to potential war crimes, the United States remains the Great Exception. Wouldn’t it be wonderful if we were just a little less exceptional?

If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans?

Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit? – asks Rebecca Gordon.

International Affairs

Continue Reading

Publications

Latest

South Asia43 mins ago

A Hybrid Political System for Pakistan: A Proposal

The political system of Pakistan is an amalgamation of Islamic, British, and Indian influences, shaped by a multifaceted array of...

china india pakistan china india pakistan
South Asia2 hours ago

Regional Implications of Strategic Triangle of China-India & Pakistan

Strategic Triangle is defined as three states binding in a triangle’s strategic relationship. It is focused on three factors. 1)...

gun terrorism gun terrorism
Americas4 hours ago

America’s Exceptionalism in Mass-Shooting and Its Culture of Rugged Individualism

Amid an unrelenting surge of gun massacres, many have wondered why the United States- the world’s leading country in mass...

Southeast Asia8 hours ago

Can the BURMA Act Coagulate the Frozen Conflict in Myanmar?

The BURMA Act of 2021, which seeks to hold the Myanmar’s military junta responsible for human rights violation, is up...

Tech News10 hours ago

EU and Singapore launch Digital Partnership

EU and Singapore are strengthening their cooperation as strategic partners. Following the announcement of a new Digital Partnership between the...

Eastern Europe11 hours ago

Ukraine war’s first anniversary and beyond

The first anniversary of Russia’s special military operation in Ukraine falls on February 24. The Russian strategy of attrition war...

Environment13 hours ago

The Green Deal Industrial Plan: putting Europe’s net-zero industry in the lead

Commission presents a Green Deal Industrial Plan to enhance the competitiveness of Europe’s net-zero industry and support the fast transition...

Trending