Radhika Coomaraswamy & the International Justice System

Island.lk
December 7, 2013

Last Tuesday, Radhika Coomaraswamy delivered a public lecture on ‘the Rule of Law and the Enlightenment’ at the International Centre for Ethnic Studies auditorium where she spoke in glowing terms of the Western enlightenment which upheld reason, universal truth and universal rights applicable to all societies and cultures. She bemoaned the fact that a ‘toxic mix’ of ideas including nationalism was leading to the death of enlightenment values in Sri Lanka. Speaking of the UN and the international human rights regime, she said that while some African leaders may be against the International Criminal Court (ICC), every African she spoke to was in favour of it and that ‘impunity is a terrible thing’ which point she illustrated by saying that she had come across situations where women who had been raped had to watch the perpetrators walking about freely due to amnesties given in the name of conflict resolution.

When asked what she thinks of introducing a South African style Truth and Reconciliation process in Sri Lanka, she said she was in favour of it. This writer who was in the audience pointed out that there was an inherent contradiction in deeming the international human rights regime to be ‘enlightened humanism’, deploring impunity, praising the punitive justice of bodies like the ICC on the one hand and at the same time favouring a truth and reconciliation process in Sri Lanka.  The South African Truth and Reconciliation Commission was one part of an indemnity law which sought to wipe the slate clean and start a new journey. In response what Radhika said was that the ICC process is not possible in Sri Lanka because SL is not a member of the ICC and therefore the only process possible here was that of a South African style truth and reconciliation process.

In other words, she favours punitive justice but would be willing to settle for restorative justice if the former is not possible. She mentioned an instance where she too had worked to apply ‘instrumental justice’ to child soldiers in Sierra Leone to ‘punish, discipline and rehabilitate’ them. Radhika Coomaraswamy has for decades been a member of the Sri Lankan academic glitterati. When she expresses confidence in the international human rights regime, and says that the ‘enlightened’ West stands for reason, universal truths and universal rights many people may be convinced that it is indeed so. This writer has known Radhika for a long time and means no disrespect, but there is another side to this story which needs to be told.

Multilateralism stood on its head

Radhika spoke of her work in the United Nations Organisation in words that left no doubt about her conviction that the UN was bringing justice and enlightenment to the world. Many people see the UN as a multilateral body that brings together the global community of nations. That is the tree. What then is the wood that we seem to be missing? Technically, every member of the United Nations is equal. But in reality, those who spend money are more equal than others. The old adage ‘He who pays the piper calls the tune’ applies to the UN as much as to any other organisation. The UN is supposed to be funded by the contributions of member states which is assessed on the per capita income, and other economic indicators of a member nation’s ability to pay. On this basis, Sri Lanka’s membership contribution to the UN for the year 2013 was 702,819 USD and for the United States of America, it was 618,481,182 USD.  The ‘membership fee’ collection forms the ‘core budget’ of the UN. But this money does not cover the expenses of the UN which is heavily dependent on voluntary contributions.

Over the decades, instead of retaining the UN as a skeleton organisation to maintain a line of communication between sovereign nations, and a meeting place for the global human family, the Western powers have taken the lead in piling more and more tasks on the UN system bringing about two results – a shortfall in money to meet those commitments and increasing dependency of the UN on voluntary contributions from ten to fifteen Western nations. The West has for their part turned this financial dependency into a handle to make this global organisation an instrument to further their foreign policy interests.

According to the 2011 Whitehouse Report to Congress on US contributions to the UN system, the US made voluntary contributions in excess of 7 billion to the UN system in 2010. The State Dept was the biggest spender accounting for 5.4 billion, but all departments of the US government were doling out money to various UN agencies.  A 2007 UN Joint Inspection Unit (UN-JIU) Report titled “Voluntary Contributions on United Nations System Organisations: Impact on Programme Delivery and Resource Mobilisation Strategies” admitted that when voluntary contributions come only from a few ‘donor’ countries, the conditions that are invariably attached to these voluntary contributions distort the priorities of the UN agencies.

So dependent is the UN system on voluntary contributions from Western countries that the UN-JIU report observed that various organisations within the UN have ‘internal guidelines and procedures for interaction with donor governments’.  One can only imagine how such a process will impact on the even handedness of the UN. There are two categories of nations involved in the UN – ‘members’ and ‘donors’. Guess who calls the shots! The UN-JIU report further observes that these voluntary contributions had the potential not only to distort programme priorities but even the mandates of UN system organizations and that the outcome may be a concentration on themes that correspond to donor preferences and not priorities defined at the national or international levels. The UN-JIU report admitted that such dependency is inimical to the very concept of multilateralism.

So we have to realise that everybody in the UN system from Secretary General Ban Ki Moon downwards is committed to pleasing the western donor nations who keep the UN funded. This is why Ban Ki Moon went out of his way to compile a report on Sri Lanka outside the standard procedure of the UN and send it around in the guise of an official UN report.  He gave assurances to Sri Lanka that the committee of inquiry he appointed was only to advice him but he sent the report to the UN Human Rights Council ignoring the protests of Sri Lanka.  The reason why even a high official like Ban Ki Moon would stoop so low as to dishonour his word given personally to the head of a member state, is because donors are more important than members to the UN.

Justice for the highest bidder

The situation is no different when it comes to the UN Human Rights Council (UNHRC) with which Sri Lanka has been having so many problems. Only one third of the UNHRC budget is covered by the money allocated to them from the UN core budget. The other two thirds come from voluntary contributions from the Western powers including the USA, Canada, Norway and the European Union. Sri Lanka is being hounded within the UNHRC by the very countries that keep the organisation funded. It’s hardly a wonder that Navi Pillay is unable to find anything positive to say about Sri Lanka! Voluntary contributions to the UN system come not only in the form of money, but as donations of goods and even more insidiously, of personnel who are seconded by the donor countries to serve in the various agencies of the UN. These are government servants of the donor countries who are under obligation to promote the national interest of their countries no matter where they serve.

It’s the same when it comes to the various international criminal tribunals that have been established. The International Criminal Tribunal on Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were set up under a mandate from the UN Security Council hence UN member states including Sri Lanka have to fork out assessed contributions for the upkeep of these tribunals. (Since Sri Lanka is not a member of the ICC, we do not have to pay any money for its upkeep.)  The ICTY and ICTR also cannot be maintained with the assessed contributions levied on UN members and these tribunals are as dependent on voluntary contributions as the rest of the UN system.

The Foreign Affairs and National Defence Division of the US Congressional Research Service said in a 1998 paper that when the ICTY was set up,  the Netherlands helped by reconstructing the tribunal premises. The European Union seconded 22 legal assistants and Britain gave money for the construction of a courtroom. The Americans also provided personnel in the form of prosecutors, investigators and other experts from the Department of Defence, the Department of Justice, the FBI and the State Department. This was in addition to the millions provided as voluntary cash donations by the Western powers. The 2007 UN-JIU report which we mentioned earlier, stated that “in most UN organisations, there was a preponderance of personnel from developed Western countries and that that there should be a more balanced geographical representation”. This is the subject of ongoing debate even within the UN Human Rights Council, where at one point over two thirds of the staff were from Western countries. This led to an outcry from the underdog member states and under relentless criticism, the UNHRC has been reducing the number of white Caucasian staff. But it should be remembered that so long as the money for the salaries of the staff is provided by Western donors, those whom they recruit even from the third world, will be western funded NGO types who will continue to toe the Western line.

The USA was the biggest voluntary contributor of money, material and personnel to the ICTY. The same applies to the tribunal on Rwanda. When the ICC commenced operations in The Hague, the Netherlands waived rent for ten years from 2002 to 2012. They were also given computers, and the utility bills were paid for by the Netherlands government for the first year. A cable sent to Washington by the US Embassy in The Hague on July 6 2004, and made public by Wikileaks shows how closely the ICTY worked with the US. The Chief Prosecutor and Registrar of the ICTY had asked the American Embassy to use their influence with the UN headquarters to allow the ICTY to extend the employment contracts of their staff to prevent staff from leaving and joining the ICC! They also wanted the Americans to do something about the moratorium on hiring new staff to the ICTY which had been imposed by UN headquarters. That was how closely the ICTY worked with the USA. All Sri Lankans know that a UN job is one of the best jobs that anyone can have. Those high salaries and perks have been made possible because of the ‘voluntary contributions’ coming from Western countries and no UN official will ever do anything to anger their benefactors.

Apartheid in international justice

Even though the USA and the Western powers played a major role in setting up international criminal tribunals to try others, US and other Western leaders have been quite emphatic that such tribunals were only for blacks and poor white trash, and not for them. According to a (Woodrow) Wilson Centre document, the National Post of Canada had reported on 22 May 1999 that when Congressman Lester Munson, spokesman for the U.S. House of Representatives Committee on International Relations, was asked if he was concerned that the ICTY might attempt to prosecute NATO officers for attacking civilian targets in Serbia, Munson told them: “You’re more likely to see the UN building dismantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal.” Similar sentiments were expressed to the BBC by Robin Cook the former British Foreign and Commonwealth Secretary when asked if the UK government did not fear that some of its officials would be dragged to the International Criminal Court for their unjustified invasions of Afghanistan and Iraq and the subsequent murders of tens of thousands of citizens of those countries. Cook’s angry answer had been “If I may say so, this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.” In a subsequent interview on the same BBC programme (Newsnight)  John Laughland the author ‘The International Criminal Tribunal’ said “any structure like The Hague court, which is tilted only to third world dictators and not to people in the West, must be unfair and unjust.”

The Americans went one step further to ensure that no international criminal tribunal ever dares to even dream of indicting an American or an American ally. Afghanistan is a member of the International Criminal Court, so American troops can be hauled before the ICC for crimes committed in that country – including the drone strikes.  (Iraq is not a member.) In 2002, the US Congress passed into law the American Service Members’ Protection Act which is specifically designed to prevent American citizens from being hauled before the ICC. Not only does it expressly prohibit the ICC from exercising jurisdiction over Americans and their allies, it gives the president the authority to apply military force if necessary to free any Americans or American allies who have been taken into custody by the ICC! So if anybody is wondering why no American has ever been hauled before the ICC despite Afghanistan being within the jurisdiction of the ICC for the past decade, it’s because nobody in The Hague wants to die.

If we go by what Radhika Coomaraswamy said last Tuesday, in her books there is nothing wrong in the Western powers giving voluntary contributions to the UN and the war crimes tribunals because they are doing it for an altruistic purpose. If these voluntary contributions with strings attached, gives the western powers leverage over the international agenda, that too is not a problem because the Western powers are the purveyors of ‘enlightenment’ and of ‘universal truths and rights’ to the world and they should have this dominance for the greater good of mankind. It is also OK for them to exempt themselves from the jurisdiction of the international criminal tribunals because the Western powers can do no wrong.

Perverted international laws

One of the main reasons why the US government is so vehemently opposed to submitting to the jurisdiction of the International Criminal Court is because as the preamble to the American Servicemen’s Protection Act said,  “Any American prosecuted by the International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury.” When Navi Pillai was in Sri Lanka recently, this writer pointed out that when she was a judge of the International Criminal Tribunal for Rwanda she had contributed to turning these international tribunals into Kangaroo courts by perverting the law that had evolved in Western nations over centuries. The first to be thrown overboard were the rules of evidence that would apply to any criminal case at the national level in any country – even countries like Sri Lanka and India which freely adopt the best criminal justice practices evolved in Western countries.

The International Criminal Tribunal for Yugoslavia was the first latter day international criminal tribunal set up in 1993 and the rules of procedure applicable to the ICTY applied in equal measure to the ICTR which was set up in 1994. Rule 89 of the ICTY rules of procedure stipulated that the judges of these tribunals ‘will not be bound by national rules of evidence’ and that they can apply rules of evidence which will best favour a fair determination of the matter before it and that they may admit any relevant evidence which they deem to have probative value. The ICTY was the first international criminal tribunal set up after the Nuremburg and Tokyo trials to try Nazi and Japanese war criminals in the wake of the Second World War. The above quoted Rule 89 of the ICTY rules of procedure was borrowed from Article 19 of the Charter of the International Military Tribunal which carried out the Nuremburg trials, which went as follows “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to be of probative value.”

The emphasis in the Nuremburg trials was to finish things off expeditiously. As Bishop Desmond Tutu said in his report on the Truth and Reconciliation Commission, the Nuremburg trials administered the victor’s justice on the vanquished. Justice Robert H.Jackson, the Chief US Prosecutor at the Nuremburg trials said on August 12, 1945 – “I have not seen fit to insist that these prisoners have the benefit of all of the protections which our legal and constitutional system throws around defendants.” And indeed, due process was not the main concern of the victorious allied powers. Both Winston Churchill and Joseph Stalin wanted to simply bump off the captured Nazi leaders and it was on the insistence of US President Harry Truman that even this rudimentary trial process was instituted. (The Americans always loved litigation.) It need not be stressed that the Nuremburg attitude is wholly inappropriate for an international criminal tribunal that seeks to dispense justice the way national courts of justice would.

However, as we pointed out earlier, the purpose of the western powers was to set up an international criminal justice system which would apply only to others and not to themselves.  These were instruments to shock, overawe and subjugate the rest of the world to the West. Like Gods, they make rules for others but not for themselves. So much for the ‘rule of law’ that Radhika was talking about last Tuesday! In this, the ICC followed the same trajectory as the ICTY and the ICTR. The Americans and other Western powers are well aware that what they have set up are in fact international Kangaroo courts which is why they do not want any Americans to submit to its jurisdiction.  Furthermore, these international tribunals have set precedents that are weighted against the defendant. For example, witness testimonies need not be corroborated to be admitted. Thus, the evidence of a single person with no corroboration whatsoever is deemed sufficient to convict an accused. The ICTY actually argued in one case that Article 96 of the ICTY Rules of Procedure stipulates that in the case of rape victims no corroboration of testimony is necessary and that if the testimony of a single witness is deemed to be reliable enough for a criminal conviction in such cases, the testimony of witnesses in other criminal cases has to be endowed with the same authority.  Furthermore, precedents have been set where hearsay (what a witness has heard from someone else) evidence too has been admitted.  This is why the USA would rather bomb The Hague than allow an American citizen to be hauled before the ICC.

Protecting our rear ends

Sri Lanka should take good note of this. Unlike the Americans we are in no position to threaten to bomb The Hague.

But what we can do is to borrow what we can from the American Servicemen’s Protection Act and insert in our constitution a schedule (which cannot be changed without both a two thirds majority in parliament and a referendum) making it a treasonous offence carrying the concomitant penalties (death, confiscation of property etc), for any elected or unelected public official, judicial officer, policeman or ordinary citizen who takes part in handing over or extraditing any citizen of Sri Lanka to any international criminal tribunal or to any other country which claims ‘universal jurisdiction’ over Sri Lankan citizens.

Nelson Mandela died last Thursday. The whole world salutes him. What made Mandela a man revered by all nations is the way he steered South Africa from a situation of conflict into a democratic nation at peace. There are many lessons that we have to learn from South Africa and foremost among them is their ‘Promotion of National Unity and Reconciliation Act of 1995’. This was in effect an indemnity law under which amnesties were granted to both sides of the conflict, wiping the slate clean so that a new South Africa could emerge. The much spoken about Truth and Reconciliation Commission (TRC) chaired by Bishop Desmond Tutu was a creation of that Act. The purpose of the TRC was to deal with cases where untoward incidents had already come to light. Those involved could go before the TRC, make a confession and immediately be granted an amnesty with which all civil and criminal liability for the deed ceases.  Those who had done deeds that had not come to light could allow things to die a natural death. There will of course be people in Sri Lanka as well as overseas who will not like the idea of an amnesty for both sides, and will instead be insisting on punishing the victors for having won. The legislation suggested in the previous paragraph will provide a bulwark against such elements.