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DAWN - Opinion; June 28, 2002

June 28, 2002

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The US and the criminal court

By Jonathan Power


IN the week before the International Criminal Court comes into formal existence, the United States has decided to pick a fight over it — and it potentially could a damaging one. In the UN Security Council Washington has said that it is not going to vote for the renewal of the mandate of the Nato peacekeeping force in Bosnia unless the Security Council gives an assurance that American soldiers deployed as part of US peacekeeping forces will not be prosecuted for war crimes.

This American hostility will hang like a heavy cloud over the ceremonies that will mark the opening of the Court’s doors on July 1. To their immense credit the two other western Security Council members, Britain and France, are adamant in refusing to countenance the American request. All the member states of the European Union regard the Court as an historic breakthrough in the building up of a global rule of law, a chance to deter those who seek to wreak havoc with their opponents by the use of war and by the horrors that are often war’s corollary — mass executions, torture, rape and the murder of innocents.

If the US, which initially was an important advocate of the Court’s creation, now decides to confront a united Europe on this issue it could lead to a transatlantic political crisis of a dimension far worse than the steel tariffs’ issue earlier this year and perhaps more in the league of the Suez crisis of 1956.

The European Union and other supporters of the idea of the Court in the four corners of the world conceded nearly all what the US demanded during the negotiations in Rome in 1998 on the statutes of the Court. The one concession, however, they were not prepared to make was on the question of the Court’s jurisdiction over UN peacekeepers. Indeed, Europe and the rest of the world can be justly criticized for having given away so much and then deciding to dig in their heels on what is a relatively minor issue.

All that is left of the Court now is what the British lawyer, Geoffrey Robertson, rightly described in his book Crimes Against Humanity, “a permanent ad hoc tribunal dependent on references from the Security Council to investigate countries like Rwanda and Yugoslavia where none of the combatants have superpower support.” The Court, as with the ad hoc court in The Hague now trying Slobodan Milosevic, will only have jurisdiction when given a remit by the Security Council acting under Chapter 7 of the UN Charter, or by the consent of the state of which the defendant is a national or in which the crime is committed. There is now no question, as was originally intended, of the Court having universal jurisdiction; in other words of being allowed to prosecute whoever it has good reason to believe might have committed a war crime, wherever they live.

With or without America, July 1 will still be a day to celebrate. The Hague tribunal, currently prosecuting those who committed atrocities in the Balkan wars, will now in effect be transmuted into a permanent institution.

“In this day and age”, as was said by East Timor’s Nobel Peace Prize laureate Jose Ramos-Horta when speaking in reference to Indonesia’s former armed forces chief General Wiranto, “you cannot kill hundreds of people, destroy a whole country, and then just get fired.”

The world at the onset of the twenty first century is a very different place than it was after the carnage of the First World War. Then, no political leader, despite the creation of the League of Nations and the World Court, thought for a moment that international institutions might tell states how to treat their citizens.Individuals had no rights in international law. Today they have many and the International Criminal Court is but the latest advance in an area that encompasses an enormous range, from the rights of women and children to the right not to be tortured.

The ideas of the Enlightenment, most perfectly expressed in political form in the American Constitution, are now writ large across most of the world, a sign that the Enlightenment was not just a dream of European and American thinkers but a way of looking at human life that was essentially practical and doable, and in the end would make the world a much better place.

The Court will surely give future tyrants and their generals pause for thought. It will be a decade or so before we will be able to make the first hesitant judgments about whether this interlude for reflection is translated into political and military restraint. No one will be watching this process more closely than America. If over time American opinion decides that the Court has acted sensitively and with good judgment — and that indeed wars and atrocities have probably been averted — it would be difficult to imagine that America would want to stay out of its fold for very much longer. —Copyright Jonathan Power

Fighting pollution

THE US state of North Carolina recently took into its own hands the question of reducing air pollution from power plants. Gov. Michael Easley signed a bill requiring 14 major power plants in the state to cut their smog-causing emissions by roughly three-quarters by 2013, a requirement far tougher than any imposed by the federal government.

A chief sponsor of the North Carolina measure said local leaders decided they needed to act on their own after waiting for more than 10 years for either Democratic or Republican administrations in Washington to help with mounting pollution problems. What’s been happening here on air pollution suggests they were wise to move ahead.

The US Environmental Protection Agency has unveiled a set of proposed rules that could allow some factories, refineries and other sources of industrial pollution to dump more pollutants into the air without triggering requirements for tougher pollution controls under what is known as the new source review provisions of the Clean Air Act. Other proposed changes eventually could make it easier for some older coal-fired power plants to operate longer without being required to add modern controls.

EPA officials argue that the existing regulatory scheme created perverse incentives that in some cases discouraged potential improvements. More clarity, they say, could open the way for voluntary gains. Maybe, but you’ll have to take the case on faith because it’s built on anecdotal evidence, not on numerical analysis of what the existing program has produced or how the proposed changes would affect actual emissions.

In the meantime EPA officials argue that the best way to lower power plant pollution is through a system such as the one President Bush has proposed, which would impose overall reductions on power plant emissions. A properly designed cap and trade scheme might be the best long-term answer, but passage of legislation to put such a scheme in place remains a distant goal. And by moving ahead with changes to the new source review system, the administration has removed one of the chief incentives for industry to go along with any bill imposing tough caps.

In the face of sharp partisan criticism, EPA officials pointed out that some of the changes were first raised for consideration by the Clinton administration. What they did do in their last couple of years in office, helped along by a push from New York Attorney General Eliot Spitzer and other state officials, was file a series of lawsuits against plants alleged to have undertaken major renovations without installing legally required equipment.

There’s a danger, too, that the announcement of rule changes will make it harder to prevail in the still-outstanding lawsuits, though EPA says it will continue to push ahead on those cases. One involves coal-fired power plants run by the Tennessee Valley Authority that are contributing to degraded air quality in western North Carolina and the Great Smoky Mountains National Park. They aren’t covered by the new state law: For relief on that score North Carolina still will have to wait for the federal government.

— The Washington Post

Compassion for the retarded

THE US Supreme Court finally concurred with a belief long held by reasonable people. Executing a mentally retarded criminal is “cruel and unusual punishment” and violates the Constitution.

By 6 to 3, the court held that offenders with very low intelligence are not criminally responsible nor will they be deterred by the death penalty. Defendants who have the mind of a child can’t communicate effectively, participate in their defense or even distinguish truth from fiction. It is neither fair nor moral to put them to death.

A telling footnote to the majority opinion, written by Justice John Paul Stevens and joined by Justices Sandra Day O’Connor, Ruth Bader Ginsburg, Steven G. Breyer, Anthony M. Kennedy and David H. Souter, referred to the cases of two retarded inmates who confessed to murders and were on death row in Illinois and Virginia until DNA evidence exonerated them.

Cases involving mentally retarded criminals often are not clear-cut; in the case before them, the defendant was a murderer. But the court reached the right decision based in part on the growing national consensus against putting to death mentally retarded criminals.

Public opinion mattered in this decision because in a 1958 decision, then-Chief Justice Earl Warren wrote that the 8th Amendment, which bans cruel and unusual punishment, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The barbarism may continue because the court leaves it up to the states to determine who has a low enough IQ to merit a pass on execution and who is subject to the death penalty despite having intelligence well below average.b — The Washington Post

How they bulldozed Jenin

By Asma Rashid


ON May 31, Israel’s widely circulated newspaper Yediot Aharonot published a chilling account of what actually happened in Jenin after it was stormed by Israeli air and ground forces last April.

It described how an army reservist Moshe Nissim — a frustrated, drunken, fanatic football fan and a habitual troublemaker — was told to drive a 60 ton armoured demolition bulldozer, with only two hours’ training, straight into the congested Jenin refugee camp, where more than half of its residents were under 18 years of age.

“The funny bit is,” he told Aharonot, “I didn’t even know how to operate the D-9. I have never been an operator. But I begged them to give me a chance to learn.

“Before we went into Shekhem (Nablus), I asked some of the guys to teach me. They sat with me for two hours. They taught me how to drive forward and make a flat surface.

“This is what happened in Jenin as well. I have never demolished a house before, or even a wall. I got into the D-9 with a friend of mine, a Yemenite.”

In the Jenin refugee camp, he was called, over the military radio “Kurdi Bear” — ‘Kurdi’ because this was the name he insisted upon and ‘Bear’ after the D-9 he was driving. He tied a flag of his home football team on his bulldozer vowing to turn the camp into a stadium.

“The moment I drove the bulldozer into the camp, something switched in my head. I went mad. All the desperation, caused by my personal condition, just vanished at once. All that remained was the anger over what had happened to our guys. Till now I am convinced, and so are the rest of us, that if we were let into the camp earlier with all our might, twenty four soldiers would not have been killed in this camp.”

His first mission was ‘to open a track inside the camp’ to bring food supplies for the Israeli soldiers. “What is ‘opening a track’? he asks and explains: “You erase buildings on both sides. There is no other choice, because the bulldozer was much wider than their alleys. But I am not looking for excuses or anything. You must ‘shave’ them. I didn’t give a damn about demolishing their houses, because it saved the lives of our soldiers....

“I had no mercy for anybody. I would erase anyone with the D-9, just so that our soldiers won’t expose themselves to danger. This is why I didn’t give a damn about demolishing all the houses I’ve demolished — and I have demolished plenty....”

He filled the bulldozer till the roof, and drove it right up to the door of their post so that they would not have to take even one step outside their shelter and expose themselves to harm. “You could not tell where the charges were. They (the Palestinian fighters) dug holes in the ground and planted charges....”

But they posed no danger to him. “Even 80 kilos of explosives only rattled the bulldozer’s blade. It weighs three and a half tons. It’s a monster. I was willing to do with my bulldozer anything they would ask for. I begged for work. ‘Let me finish another house, open another track,’I would say.

“Do you know how I held out for 75 hours? I didn’t get off the bulldozer. I had no problem of fatigue, because I drank whisky all the time. I had a bottle in the bulldozer at all times. I had put them in my bag in advance. Everybody else took clothes, but I knew what was waiting for me there, so I took whisky and something to munch on. “Clothes? Didn’t need any. A towel was enough....”

“Difficult? No way. You must be kidding. I wanted to destroy everything. I begged the officers, over the radio, to let me knock it all down; from top to bottom. To level everything. It’s not as if I wanted to kill. Just the houses. We didn’t harm those who came out of the houses we had started to demolish, waving white flags. We screwed just those who wanted to fight.

“No one refused an order to knock down a house. No such thing. When I was told to bring down a house, I took the opportunity to bring down some more houses; not because I wanted to — but because when you are asked to demolish a house, some other houses usually obscure it, so there is no other way. I would have to do it even if I didn’t want to. They just stood in the way....”

“For three days, I just destroyed and destroyed. The whole area. Any house that they fired from came down. And to knock it down, I tore down some more. They were warned by loudspeaker to get out of the house before I come, but I gave no one a chance. I didn’t wait. I didn’t give one blow, and wait for them to come out. I would just ram the house with full power, to bring it down as fast as possible. I wanted to get to the other houses. To get as many as possible. Others may have restrained themselves, or so they say. Who are they kidding? Anyone who was there, and saw our soldiers in the houses, would understand they were in a death trap. I thought about saving them. I didn’t give a damn about the Palestinians, but I didn’t just ruin with no reason. It was all under orders.

“Many people were inside the houses we sought to demolish. They would come out of the houses we were working on. I didn’t see, with my own eyes, people dying under the blade of the D-9. and I didn’t see house falling down on live people. But if there were any, I wouldn’t care at all. I am sure people died inside these houses, but it was difficult to see, there was lots of dust everywhere, and we worked a lot at night. I found joy with every house that came down, because I knew they didn’t mind dying, but they cared for their homes. If you knocked down a house, you buried 40 or 50 people for generations. If I am sorry for anything, it is for not tearing the whole camp down....

“I had plenty of satisfaction. I really enjoyed it. I remember pulling down a wall of a four-story building. We would go for the sides of the buildings, and then ram them. If the job was too hard, we would ask for a tank shell.... On Sunday (April 14), after the fighting was over, we got orders to pull our D-9s out of the area and stop working on our ‘football stadium’, because the army didn’t want the cameras and the press to see us working. I was really upset, because I had plans to knock down the big sign at the entrance of Jenin — three poles with a picture of Arafat. But on Sunday, they pulled us away before I had time to do it.

“I had lots of satisfaction in Jenin, lots of satisfaction. It was like getting all the 18 years of doing nothing — into three days. The soldiers came up to me and said: ‘Kurdi, thanks a lot. Thanks a lot’.

“No one expressed any reservations against doing it. Not only me. Who would dare speak? If anyone would as much as open his mouth, I would have buried him under the D-9. This is the reason I didn’t mind seeing the hundred by hundred we’ve flattened. As far as I am concerned, I left them with a football stadium, so they can play. This was our gift to the camp....”

After the publication of the story — and in spite of it — the unit to which the man belongs received from the army command an official citation for outstanding service.

When after a three-week total news blackout, the UN and International Red Cross officials were allowed to enter Jenin, they were appalled by the sight of the devastated camp. Pictures of a vast grey wasteland that only days before was home to thousands of Palestinian refugees sent shock waves around the world and the UN Security Council was forced to pass a unanimous resolution on April 20 asking the secretary-general to dispatch a fact-finding commission. But though Israel had initially acquiesced to the inquiry, it refused to allow the commission to enter Jenin, and on May 4, Kofi Annan who as late as on April 29 had expressed his resolution to proceed with the inquiry, quietly dissolved the commission, apparently under strong American pressure.

Since then Israeli forces have vandalized again and again the ruined, bleeding camp, with the world community looking the other way. America’s reluctance to allow an inquiry mission into Jenin is understandable as it could evoke certain ugly memories of the 1991 Gulf War. As revealed months after the war ended, the US Army division that broke through Iraqi defensive frontline on the second day of the ground offensive, had used ploughs mounted on tanks and combat earth removers to bury thousands of Iraqi soldiers — some still alive and firing their weapons — in more than 70 miles of trenches. After the first wave of bulldozers had incapacitated the Iraqi defenders, a second wave filled the trenches with sand, ensuring that none of the wounded could survive.

However, it has not inhibited the US from carrying out some discreet fact-finding on its own with an eye to the next mass air and ground offensive it proposes to launch against Iraq. According to a special report published by WorldTribune.com dated June 6, the US marine Corps and Israeli military commanders are studying the capture of the Palestinian refugee camp outside the West Bank city of Jenin. The Marines — struggling to reduce casualties in urban warfare simulations — want to learn from the Israeli experience in urban warfare and the recent massive search-and-destroy operations for the Palestinian freedom fighters in West Bank.

Lt. Col. Dave Booth who oversees the Marine Corps-Israeli defence force exchanges told the US Marine Corps Times: “We’re interested in what they are developing, especially since Sept. 11. We’re interested in their past experience in fighting terrorism. So there’s a lot of things we could learn from them”. The weekly said the marine war fighting laboratory plans to revise the corps’ urban warfare doctrine after an examination of Israeli tactics. This includes adapting Israeli methods in the deployment of air and armour in urban areas. According to the report, America also sent a delegation from the joint chiefs of staff last month to review Operation Defensive Shield, the term used for the month-long offensive against the Palestinians.