Much can be said about the politics of international criminal justice, the tolerated/excused hypocrisy in the behavior of certain states (in particular the permanent five members of the UN Security Council), and yes, the callousness or indifference or obliviousness in viewing, accepting, and even promoting inequity. We often tend to justify or minimize inaction or overreaction or selective action when it either suits us or when we lazily adopt a so what or a that’s the way things are attitude. Even when occasionally we truly believe something is off-kilter, irreconcilable, or just plain wrong, we rarely are willing to call it for what it is, to speak truth to power, to dare voice an unpopular position because it is simply the right thing to do. With no agenda in mind, here are a couple of matters worth expressing, however seemingly distasteful it may be to criticize anything related to Ukraine and its efforts in seeking peace and justice.
Color, race, religion, proximity
Who would not be overwhelmed by the images coming out of Ukraine – the relentless shelling of towns, villages, apartment complexes, schools, hospitals, playgrounds, roads, and … ? Who would not be overwhelmed by the images of the plight of civilian Ukrainians, the unnamed, the young, the mothers, the fathers, the grandparents, the sick, the vulnerable, escaping the carnage and mayhem? Who would not be overwhelmed with compassion and a sense of being unselfishly generous for these refugees, displaced persons, and migrants seeking security, economic and social advancement, and human dignity?
Virtually uncompromisingly, Ukraine’s neighboring states as well as other European Union and non-European States have embraced and welcomed and aided the hundreds of thousands of Ukrainians who have flooded and continue to flood their borders, with the same bygone largesse American spirit embodied in Emma Lazarus’ sonnet, New Colossus, associated with the Statute of Liberty: Give me your tired, your poor, your huddled masses yearning to breathe free. And why not. This is the humane thing to do. It is the truest essence of the ancient Greek concept of philoxenia (friend or stranger): hospitality founded on selfless generosity and excessive courteousness extended to friends and strangers alike. But should it be limited to or primarily made available for Ukrainians? Of course not. Yet, it seems so – at least in Europe.
We are confronted daily with unimaginable horrors occurring to Yemenis, Syrians, and Rohingya. We are confronted with migrants trying to escape war-infested, economically decimated, life-threatening areas in Africa, Asia, and the Middle East. We are confronted with overloaded, unsafe boats carrying women, children, young men and the elderly, all looking for safety, peace, freedom, and dignity – dignity to provide for themselves and their loved ones, dignity to a secure roof over their head, a plate of food earned (not given), education for their children, and the promise of a tomorrow. Is this not what Ukrainian refugees also yearn for? And is this not what is being provided to them – respectfully and without protest?
It cannot be seriously claimed that what is offered to Ukrainian refugees is similarly or proportionally provided to others who find themselves in like circumstances. And what of the resources allocated in investigating, securing evidence, mobilizing legions to help investigative and prosecutorial efforts, let alone the time and energy spent on conferences, symposiums, lectures, workshops, and meetings specifically held to highlight the alleged atrocities being committed, the need for accountability, and the innovative modalities for judicial institutions, including the creation of a boutique tribunal for the crime of aggression to prosecute Putin et al. – presumably because achieving convictions would be relatively easy, a “slam dunk”, or dare I say, a foregone conclusion.
While significant efforts are being made to investigate, gather evidence, and share this evidence for the purpose of prosecutions for the Syrians (International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic) and the Rohingya (Independent Investigative Mechanism for Myanmar), no serious efforts are made for the Yemenis (directly or indirectly irrespective of which faction, if any, the victims may belong). The ICC Prosecutor seemingly is willing to devote some resources (and make choreographed public relations photo outings) to investigating crimes against the Rohingya, but when compared to the resources and attention paid to the Russo-Ukrainian theater by his office, the EU, and other states, it amounts to the proverbial drop in the bucket.
Aside from the lackluster human and financial resources for investigating crimes in Syria and Myanmar (and none to speak of for the atrocities in Yemen), what is strikingly disquieting is the callousness and unwelcomeness shown to those from these and other states generating refugees who are fleeing conflicts or persecution (a class distinction, which, based on a proposed disparate approach to affording asylum, toppled the Dutch government due to “irreconcilable” splits among the coalition parties), and migrants who by and large are fleeing equally dangerous and inhumane conditions.
And what of Sudan. In 2005, the United Nations Security Council through Resolution 1593 referred the situation in Darfur since 1 July 2002 to the ICC Prosecutor. Thus far, however, the Security Council has failed to assist in any meaningful way – as notably illustrated in the ICC Pre-Trial Chamber’s Decision on former ICC Prosecutor Fatou Bensouda’s Request for a finding of South Africa’s non-compliance in executing the Court’s request for the arrest of Omar Al-Bashir. Now ICC Prosecutor Karim A.A. Khan KC informs the Security Council that the ICC – by virtue of Resolution 1593 – has jurisdiction to continue its investigation into the Situation in Sudan and “will strain every sinew and leave no stone unturned to unsure that [the perpetrators] are held accountable in fair and independent trials.” It’s about showing that the ICC is “delivering more than words and promises”, according to the ICC Prosecutor, who “do[es] not want these Security Council referrals to be never-ending stories.” But where is the visible public relations campaign and lobbying for resources and investigators on the ground? Where are the states that generously and enthusiastically rush to the ICC Prosecutor’s calls to assist in investigating and gathering evidence – such as the United States, United Kingdom, European Union, and others – as in Ukraine? Alas, some form, but little substances.
So why does most of the attention, most of the resources, most of the welcomeness go to Ukrainian refugees and not others?
The ongoing war being played out daily on tv and social media may be a factor. But it is not the predominant one. My view is that it all has to do with – as the subtitle reflects – color, race, religion, proximity. Ukrainians are Caucasian, Christian, and close to EU borders, sharing in no small measure similarities in culture and tradition, a discernable history, and indistinguishable Northern European looks – white complexion, blond hair, blue eyes, and tall. A sameness that appearance-wise makes them easy to blend in and assimilate. Were I not being polite, I would say that it makes it easier for the governing officials and their citizens at large to accept, tolerate, even generously embrace refugees who look like them, dress like them, eat similar food as them, and pray similarly to them or to a similar deity irrespective of denominational differences.
Perhaps I’m over-generalizing in saying that skin pigmentation counts when it comes to generosity, hospitality, and inclusivity to those faced with and escaping from conflict, atrocities, persecution, and economic plight. Like race, culture, religion, and proximity to Western Europe also count. If perceptions reflect reality in the eye of the beholder – this beholder has no qualms calling it as he perceives it. And no, it is not about fixing any of the isms, such as racism or jingoism or …. It is about calling out an issue that exists which seems not to be fully appreciated or purposely left unexamined or conveniently ignored.
Echoes of victor’s justice on the horizon
Heretical as it may seem to call into question the ongoing efforts in investigating and preparing for the prosecution of crimes believed to have been committed by Putin et al., I’ll dispense with using the customary “alleged”. Not that the presumption of innocence of the accused and the burden of proof resting on the prosecution are any less indispensable here, but gleaning from the talk of many promoting the notion of establishing a special international criminal tribunal that would include the crime of aggression, Putin et al. have all but formally been convicted. I have written before on the speciousness of such a tribunal (here).
Though I can see the allure in creating this sort of a tribunal to help crystallize the crime of aggression, the hypocrisy of some states in their anxiousness to contribute to and in advancing arguments for such a tribunal is flabbergasting. None of the permanent five on the UN Security Council, among other states, are willing to accede to ICC jurisdiction or to any national or international(ized) criminal tribunal for that matter, for its citizens to be prosecuted for the crime of aggression as defined by the ICC. While much can and should be said about the US’s Homeric hubris of do as I tell you not as I do moralizing, I want to focus on something more germane to any future trials be they held in Ukraine, at the ICC or an ad hoc UN General Assembly-Ukrainian tribunal, or in a state court. Prompting me is the recently announced International Center for the Prosecution of the Crime of Aggression against Ukraine.
I am not against this initiative. But as things seem to be going, it appears that whatever trials result from the ongoing investigations financed and conducted primarily by NATO and EU states call into question the quality and objectivity and reliability of the evidence gathered, and most likely, the evidence not gathered, or investigations not conducted.
As I’ve noted, based on the prevailing expositions and endorsements, the results – at least when it comes to a selective few at the top of the Russian totem pole – are seemingly preordained. How reliable and how objective can the investigations be if:
(1) many if not most of the investigators are seconded by their national governments;
(2) those governments have publicly claimed Russia as the aggressor and committer of atrocity crimes;
(3) those governments as members of NATO or otherwise are providing everything from military intelligence to military hardware to the Ukrainians; and
(4) the investigations (so it seems) are only focusing on the Russians. OTP Prosecutor Khan has yet to transparently reveal what if anything his investigators as well as others are doing in investigating potential crimes committed by Ukrainians.
Were the war to end tomorrow with Russia being defeated, the same states responsible to a very large extent, if not primarily, for the victory – Ukrainians fighting courageously for their country, as they should, but without the enormous tangible and intangible help from the outside – would also be responsible for the prosecutions of alleged crimes committed by Russians.
Setting aside whether any Ukrainians will be prosecuted (most likely a token few as a pretense of evenhandedness), the emerging impression thus far – at least to some of us on the defence – is that victors’ justice a la Nuremberg and Tokyo is virtually inevitable. This does not necessarily mean, nor am I suggesting, that fair trials are likely unattainable. At the end of the day, the quality of a trial and the extent to which an accused can claim to have been treated fairly and afforded all of his or her fair trial rights depends to a large extent (aside from procedural fairness enabled by the tribunal’s statutory provisions and rules) on the judging in the case. The notion that it is not just about justice (substantive and procedural) being done, but also about justice being seen to be done is relevant in accepting the outcome of the proceedings. If trials are unfair or perceived to be unfair, the outcome becomes questionable and less likely to be accepted.
To what extent future trials can be realized as fair (see here for my take on defending Russian accused) remains to be seen. Considering that the investigators are from states that are funding the war, training Ukrainian soldiers, providing sophisticated weaponry, sharing intelligence, and all but prosecuting the war against Russia with human resources, and considering that these same states are/will be involved in founding and financing and conceptualizing how the tribunals will function, and that some of the prosecutors, judges, legal experts may also come from these same states, fair trials based fair investigations seem uncertain. What is certain, however, is that looming on the horizon are a host of issues that unless transparently considered and dealt with, one-sided conviction machines masquerading as impartial international(ized) criminal tribunals are inevitable – either in fact or by perception.
Foretelling some of the issues likely to arise in future trials are:
-
- how to ensure that investigations will not be limited to just Russians and that investigations into Ukrainian suspects will be equally robust;
-
- how to ensure that investigations are conducted fairly and objectively and without any influence from states that may be funding the investigations and the salaries of the investigators;
-
- how to ensure that any international(ized) ad hoc criminal tribunal that may emerge as the primary venue for prosecuting all accused alleged to have committed atrocity crimes does not turn out to be, by expectation or otherwise, a victor’s tribunal.
I am just scratching the surface, but the point is made.
Summing up, whether in agreement with my views or otherwise, it begs asking whether we should be more attentive and less dispassionate in unsentimentally questioning instances where inequality, asymmetry, and predeterminism are apparent, if not actual. Blunt or uncomfortable as my views may seem, my intention has not been to lash-out, fix blame, or wax on presumptuously, but to provoke thought on two overarching issues I consider worth pondering.
About Author
A transparent illuminating and thought-provoking piece. Thank you, Michael!