Neocolonial ‘continuity’ at the Times

International Criminal Court

In a recent article by Marlise Simons, “Gambian Will Lead Prosecution in Hague,” and published by the New York Times (NYT) is the story of change at the International Criminal Court. No, the story is not about how the U.S. refuses to be a member of the treaty out of fear it could be targeted for political trials (considering the history of the court as a political tool for U.S. power this charge is comical in its absurdity), but rather about how the Argentinian, Luis Moreno-Ocampo is vacating his spot as the chief prosecutor and a new face is coming in, Fatou Bensouda: a lawyer from Gambia.

Supporters of the court now hope that the presence of an African prosecutor could tone down some of the fierce criticism it has received from Africa, where many have labeled it a neocolonial tool in the hands of the West because all of the cases so far have come from African countries.

But no worries, “Ms. Bensouda is expected to bring continuity rather than sharp changes to her powerful office.” Nothing will change, because much like how the U.S. government will send people like Karen Hughes around the world to improve the image of the U.S., it’s just a propaganda stunt.

On October 31, 2011 I got an email from David Peterson, coauthor with Edward Herman of The Politics of Genocide (Monthly Review Press; 2009) in which he said

Friends: In his October 26 presentation before the UN General Assembly, ICC President Judge Sang-Hyun Song boasted about the expansion of the number of cases presently before the ICC, from five last year, to seven today.

Here are his exact words (A/66/309, p.2):

The Court is seized of seven situations, of which the situation in Côte d’Ivoire is pending the Pre-Trial Chamber’s authorization for the opening of an investigation. The situations in Uganda, the Democratic Republic of the Congo and the Central African Republic were referred by the States in question, and the situations in Darfur, Sudan, and the Libyan Arab Jamahiriya were referred by the United Nations Security Council. In each case, the Prosecutor decided that there was a reasonable basis for the opening of investigations. The investigation into the situation in Kenya was authorized by Pre-Trial Chamber III following a request from the Prosecutor.

Let me repeat Judge Song’s list: Côte d’Ivoire, Uganda, Democratic Republic of Congo, Central African Republic, Sudan, Libya, and Kenya.

That is to say: Africa, Africa, Africa, Africa, Africa, Africa, and Africa.

Even more dramatic, as best I can tell, every single one of the indictees and persons under investigation by the ICC are adversaries of the United States. 

This is a stunning record.

It is this last comment by Peterson that is predictably missing from Simons’ article: “every single one of the indictees and persons under investigation by the ICC are adversaries of the United States.” In The Politics of Genocide, Herman and Peterson note that, “Both in its statute and its practices, the ICC has been no better than the ad hoc tribunals for Yugoslavia and Rwanda. Like them, the ICC practices selective investigation, selective prosecution — and, on the other side of the aisle, selective impunity.” While Simons writes that, “In four cases — involving the Democratic Republic of Congo, the Central African Republic, Uganda and Ivory Coast — the governments themselves called in the court,” what she doesn’t bother to mention is that, as an example, in the case of the Democratic Republic of Congo, the two main genocidaires, Rwandan President Paul Kagame and Ugandan President Yoweri Museveni, are absent from the list of those being charged. If the ICC had any legitimacy, and was not a political tool of the dominant powers, Kagame and Museveni would be sitting alongside Tony Blair and George W. Bush (and a slew of other British and American officials who are just as complicit in various international crimes).

The article notes, “Ms. Bensouda served as a legal adviser and trial attorney at the international tribunal that prosecuted leaders of the 1994 Rwanda genocide,” but there is no look at the trial, which was clearly politicized. Just like the DRC, the much more serious role of Paul Kagame as a genocidaire has been missing.

Even though the international jurist, Richard Goldstone, has said the 1994 assassination of Rwandan President Habyarimana was “clearly related to the genocide,” the role of Paul Kagame’s Rwandan Patrtiotic Front (RPF) in carrying out the attack has often been played down.

Now a former aid to Kagame, Théogène Rudasingwa, is “demanding” that he get to testify to the International Criminal Tribunal for Rwanda (ICTR) on knowledge he has about “the most pivotal event in the 20th century whose consequences remain tragic almost two decades later.” Rudasingwa, the former Secretary General of the RPF says Kagame personally admitted to the assassination. This recent item doesn’t make it into the NYT article, just as Rudasingwa likely won’t find a sit at the tribunal to incriminate Kagame. While his testimony is certainly welcome, to be honest, it, like having an African face as chief prosecutor for the ICC, won’t change a thing.

The ICTR, like the ICC, is first and foremost a political institution, not a judicial one. It has been constructed to serve the political interests of the West, in particular the U.S. A look at the judgement and sentencing of Bagosora et al, on December 18, 2008 demonstrates this. The focus is on “Hutu extremists,” and particular accusations against four men, “the Accused.” The historical context of the “genocide,” as we are told in the judgement, “precede the Tribunal’s temporal jurisdiction.” What happened before January 1, 1994 is “irrelevant” to the court. Even the crimes of the RPF are “irrelevant.” Despite the fact that the court acknowledges that “a cycle of ethnic violence against Tutsi civilians has often followed attacks by the RPF or earlier groups associated with Tutsis, such as Union Nationale Rwandaise party,” or that “[f]ollowing the October 1990 RPF invasion, there were mass arrests as well as localised killings at the time and in subsequent years in several northern communes and the Bugesera region,” and despite the fact that the court ruled that “the alternative explanations for the events have added relevant context to a few allegations against the Accused,” there is just one problem: “they are irrelevant to the core issues in this case, namely whether the Accused are responsible for the specific criminal allegations charged against them.”

So while the tribunal admits that the military preparations that what the prosecution said was proof of a genocidal plan was “consistent with preparations for a political or military power struggle,” and that “in the context of the ongoing war with the RPF, this evidence does not invariably show that the purpose of arming and training these civilians or the preparation of lists was to kill Tutsi civilians,” or that when you view the creation of lists and arming and training of civilians “in the context of the immediate aftermath of the RPF’s violation of the cease fire agreement, it does not necessarily show an intention to use the forces to commit genocide,” the focus is still on “the Accused,” and not the RPF for the responsibility of what transpired.

In other words, that “the Accused” are innocent of planning a genocide, and that what happened is “consistent with preparations for a political or military power struggle” due to an RPF invasion in 1990, that after more than two years of terror by the RPF resulted in a power-sharing government that recognized the RPF as a legitimate force, but also in a cease fire that the RPF violated—which would explain why the Rwandan government kept “lists” of Tutsis and armed and trained civilians in the north (they were being attacked by invading forces)—the men are still guilty of “genocide” because atrocities against Tutsis occured after the RPF assassinated their president and began a massive invasion which resulted in massacres of Hutus. Any Tutsis killed by Hutus following the invasion and power struggle are “genocide,” whereas the targeting of Hutus by the RPF from 1990 onward is “irrelevant.”

There is simply no other reason for why the ICTR is so selective in its focus than that it is a kangaroo court trial. Bearing in mind that Kagame has close ties to the U.S. government, who was instrumental in creating the ICTR at the UN Security Council, and that even according to UNSCR 955 the trial was created at “the request of the Government of Rwanda,” who is apparently behind the ICTR’s “temporal jurisdiction” considering UNSCR 955 said the tribunal should be for crimes committed “between 1 January 1994 and 31 December 1994.” Which is why Ed Herman and David Peterson wrote in their book, The Politics of Genocide, that: “Although it has failed to convict a single Hutu of conspiracy to commit genocide, the ICTR has never once entertained the question of an RPF conspiracy—despite the RPF’s rapid overthrow of the Hutu government and capture of the Rwandan state.”

It would be as if some American terrorist trained at military schools of foreign governments (Paul Kagame was trained at Fort Leavenworth), created a terrorist army in Canada with close ties to its military, invaded the U.S., and then assassinated the president, and overthrew the government in an orgy of destruction that lasted 100 days, creating a massive refugee crisis whereupon the invaders chased them into foreign countries and slaughtered them in absolute barbarism, and that the American forces who committed massacres in response to the campaign of terror and invasion were singled out as genocidaires and tried in an international tribunal, as requested by the new dictatorship, and that restricted its “temporal scope” to the crimes of its victims, and dismissed the historical context and crimes of the invaders as “irrelevant.”

That is what has happened. Paul Kagame is a mass-murderer serving U.S. interests by reinstating colonialism (it was the Belgians who put the Tutsi minority in power), blocking the emergence of democracy in the region (as a part of the Arusha Accords, elections were to be held in 1995 and Kagame had an incentive to avoid the elections since demographics make it clear the Tutsi’s would not return to power), and ensuring the natural resources are at the disposal of the U.S. Empire. His 1990 invasion, and violation of the Arusha Accords, and assassination of Habyarimana, and April 1994 invasion and coup, and the expansion of the war into the Congo (where Rwandan forces killed hundreds of thousands of Hutu refugees, sometimes right in front of international forces) have all gone unpunished, while the crimes of the RPF’s governmental and military victims have been picked over and the perpetrators brought to “justice.”

And this is the legacy of Ms. Bensouda, the new chief prosecutor whom the Times finds no place to mention any of this  . . . even if it has significant bearing on “the fierce criticism” the court “has received from Africa, where many have labeled it a neocolonial tool in the hands of the West.”

One more example, Simons writes, “Charges against Mr. Qaddafi, issued this year, were annulled recently after he was killed.” Mr. Qaddafi was captured alive, beaten, sodomized, tortured and then executed. Surely the crime against him justifies a prosecution at the court. Were his aggressors ever indicted? No. Black Africans in Libya have suffered rape, lynches, ethnic cleansing and genocide by the so-called “rebels” of Libya. In Sirte, the civilian population was indiscriminately shelled and food and medicine was deliberately blocked from reaching the city as a form of collective punishment, and in violation of various international laws (including the Security Council resolution that was used by NATO to justify their bombing campaign), because it was known that the people were not only supportive of Qaddafi but were actively fighting on his behalf against what they saw as an illegitimate rebellion. Were the perpetrators of these crimes ever brought to justice? No. In fact, in early November, the “rebels” even had the audacity to fly the al Qaeda flag over the courthouse in Benghazi, but the simple fact is they are on the right side of political power.

Peterson is right, who is indicted are not all parties who are guilty of heinous crimes, but rather the ones who are not aligned with the powerful political parties behind the court (namely, the U.S.). And rather than highlight this, the New York Times actually seeks to downplay this reality with comments like “Ms. Bensouda had the support of almost 70 countries, among them most of the court’s African members.” Such a statement is very misleading. Having support of some “African members” does not mean much, and is a distraction from “the fierce criticism.” But as Simons already noted: “Ms. Bensouda is expected to bring continuity rather than sharp changes to her powerful office.” Africa will no doubt understand.