The recent revelation that the gas-station-attendant-turned-Liberian-warlord Charles Taylor has converted to Judaism once again reminds us that he is in the International Criminal Court (ICC) prison in The Hague. With the publication of the Goldstone report accusing Israel of "war crimes" there is a chance that Israelis might one day share his fate. Yet at the same time, other European courts are releasing terrorists and elderly Nazis due to "ill health."
This begs the question: Why are UN prisoners of the ICC not given the same rights as Nazis and terrorists? Just what is this ICC, and why do Africans and East Europeans disappear into its halls of justice, while 'western' Europeans seem to be free from its jurisdiction? European justice systems are "humane" rather than "punishment" facilities. Once a prisoner is not a threat to society, he or she is eligible for release.
Another side to the European justice system is the definition of a "life sentence" as being around 15 years. Thus John Demjanjuk, accused of having a role in the murder of 27,000 people during the Holocaust, faces only 15 years in a German prison.
BUT FOR those indicted by the International Criminal Court, the procedure and punishment are quite different. This raises serious questions about the court and its legitimacy. If the Lockerbie bomber can walk free from a Scottish prison due to compassion and former SS guard Erich Priebke can be released to house arrest in Italy due to poor health, despite his role in the murder of 335 people, why should war criminals from the former Yugoslavia and Africa die in UN custody? Are Europeans who committed war crimes during World War II seemingly beyond the jurisdiction of the ICC? The court excels at prosecuting Eastern Europeans (primarily Serbs) and Africans.
The ICC, established by the UN in 1993, has four ongoing investigations, all in Africa (Sudan, Congo, Uganda and Central African Republic). Of 14 individuals currently indicted, two have died and four are in custody. The others are "fugitives." However, over the past decade and a half, the ICC has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals. The one established for Yugoslavia prosecuted dozens of individuals and has sentenced more than 25 to terms of over 15 years. Several of them have died while awaiting trial. Consider the case of Slobodan Milosevic, the highest-profile case. Although he was transferred to the court's custody in 2001, the prosecution took two years to present its case. Milosevic died in his cell in 2006, in the midst of a seemingly endless trial. Consider that the Nuremburg trials, which investigated millions of deaths, took just one year to complete. The right to a speedy trial is a hallmark of most justice systems, but not the UN's.
ANOTHER ASSOCIATED problem with the ICC is its method of justice, which includes its lack of jurisdiction, its convoluted bureaucracy, its lack of an appeal process and its lack of a trial by jury. It has 16 permanent judges and 12 temporary ad litem judges. Seven of the permanent judges are from European countries, one is from the US and one is from Australia. Of the 12 temporary judges, eight are from European countries. Thus the court is primarily European run.
Yet those it judges are not from Europe; they are usually kidnapped from their home countries, without the ability to appeal their extradition, and shipped to Europe to sit in a European prison where they have no access to legal protections that other Europeans enjoy. This is at best an unfair system and at worst a colonialist one, which places even a former SS officer above suspects from Africa or elsewhere.
From where does the UN derive its power to detain people? When UN workers commit crimes in foreign countries, they are sent home for prosecution. But those same workers can place locals in UN custody without the local having a right to appeal!
It is important to note that the prisoners have no access to habeas corpus - probably the most important concept in law. It allows a person to request relief from unlawful detention. This was called the "great writ" in English law and allowed a person to request by what authority a court held him or her. No such right exists for those held at The Hague. Even inmates at Guantanamo Bay have successfully petitioned for their rights under this concept.
Europeans, quick to criticize the US war on terror, deny this basic right to inmates held on European soil. The same European Court of Human Rights that safeguards the European does not even provide these inmates' rights. It is no wonder that criminals are on the run from this court, established without the consent of the people who may one day be charged by it and which has no mechanism for appeal or any other basic legal right. Until the ICC grants the same rights to Charles Taylor that it does to Nazis and other Europeans, it cannot be considered a legitimate court, and should be spurned by the world.
The writer is a researcher at the Hebrew University of Jerusalem.
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