ISSUES

Human Rights: What irks the United States?

By Faraz Shauketaly

Calls emanating from the United States of America, indicating a broadside to haul before the International Criminal Court (ICC) Sri Lanka’s Defence establishment in connection with the fight against the separatist Tamil terrorists, ring hollow and showcases the strong-arm tactics and antics of the global superpower.

Originally the United States voted against the setting up of the ICC. However, quite unexpectedly President Bill Clinton signed the Treaty in December 2000. However there was strong opposition to the US ratifying the Treaty – ratifying would in effect give the Treaty legal status according to US law – citing amongst other matters that the Constitution of the United States did not permit the ratifying of such a treaty. There was, it was argued a need to amend the US Constitution to accommodate this Treaty and there was concern that the fundamental rights of US citizens were diluted in that the International Criminal Court had no appellate authority, a fundamental right of every US citizen.

Before the Rome Statute, opposition to the ICC was largely headed by Republican Senator Jesse Helms.  Other objections to ratification have included that it violates international law, is a political court without appeal, denies fundamental American human rights, denies the authority of the United Nations, and would violate US national sovereignty.

Even though President Clinton signed the Treaty of Rome, he did indicate that he would not be recommending its ratification to his successor, President George Bush II. Indeed, in May 2002, the Bush administration – in a move echoed by the American protectorate of Israel — announced it was nullifying the United States’ signature of the treaty. The country’s main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.

Most alarming for the International Criminal Court, are the actions of the United States —

having declared itself disinterested in the concept of the ICC and vigorously defending why it was unable to join:  the United States has been pursuing what can only be termed as anti-ICC pogroms.

The US  made a number of Bilateral Immunity Agreements (BIAs, also known as “Article 98 Agreements”) with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including non-national contractors) and nationals. None of these agreements preclude the prosecution of Americans by any nation where they are believed to have committed any crime. As of August 2, 2006, the US Department of State reported that it had signed 101 of these agreements. The United States has cut aid to many countries which have refused to sign BIAs.

Prohibitions

The US Congress also passed the American Service Members’ Protection Act (ASPA), which contained a number of provisions, including prohibitions on the US providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorise military force to free any US military personnel held by the court, leading opponents to dub it the “Hague Invasion Act.” The act was later modified to permit US cooperation with the ICC when dealing with US enemies. The USA however can prosecute her citizens for war crimes as they have similar statutes to deal with such.

In 2002, the United States threatened to veto the renewal of all United Nations peacekeeping missions unless its troops were granted immunity from prosecution by the Court. In a compromise move, the Security Council passed Resolution 1422 on July 12, 2002, granting immunity to personnel from ICC non-States Parties involved in United Nations established or authorised missions for a renewable 12-month period. This was renewed for 12 months in 2003 but the Security Council refused to renew the exemption again in 2004, after pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand.

The indictment by the ICC of Sudan’s President Omar Al Bashir, sent shock waves throughout Africa, when the President became the first sitting Head of State to be charged with war crimes. Major palpitations were also the order of the day when sections of the global population called on the ICC to consider similar charges against President George Bush over the crimes and atrocities committed in Iraq and Afghanistan.

The hypocrisy and the duplicity of the US actions are breathtaking and stops one mid stream. However, it is admitted that the US has provided enormous tacit support to Sri Lanka along the way in its quest to rid the island of terrorism. Since the end of the war however, The US has continuously called for an investigation on war crimes in context of the last few weeks’ battles in the north of Sri Lanka. The calls have reached a crescendo in recent weeks, so much so, that President Rajapakse called on the USA to “understand” the constraints faced by his government in attempting to free the 280,000 persons held in “IDP Camps.”

Some of the logistical problems have been referred to by Robert Blake: demining being one of the chief impediments. India has joined some American efforts at trying to hasten the demining process but almost everyone accepts that this is an uphill task.

Tedious Job

Compounding the problem of course is the fact that the 20,000 strong LTTE were not simply killed by the Sri Lankan armed forces. It is more than likely – indeed the only plausible explanation – is that these LTTE fighters have discarded their fatigues and their tell-tale cyanide capsules and blended in amongst the civilian population now being held in the camps. The process of screening each and every one of them is tedious at best.

When one considers the actions of the USA and others too, of calling for war crimes investigations to be carried out, one cannot but help to resort to considering that these calls are led more by the need to satiate the demands made on politicians both in the United States and in Britain, both of whom have considerable Tamil diaspora amongst the vote base than by the need for a genuine “war crimes investigation”. Sri Lanka was not a signatory to the Rome Treaty and so would not be compelled to arrest, charge or repatriate any of its citizenry even if war crimes allegations against them are proven.

Political expediency and the issue of the IDP population works almost hand-in-glove: President Rajapakse may have belatedly realised that his Foreign Minister’s globetrotting has not quite “done the job” and that Sri Lanka cannot afford to ignore its major trading partners forever. Britain and the US contribute in significant measures to this country’s exports. China, Japan, India and Pakistan too have forged close links with the Republic, but when it comes to trade these are collectively of little consequence to Sri Lanka’s Treasury and its balance of payments.

As President Rajapakse moves into top gear with the last of the provincial elections now underway, he may well be focusing ever so subtly, on getting the economy on a better footing. He has all but ignored the findings of the Supreme Court and appointed the controversial former Treasury Secretary, P.B. Jayasundera, to help him fast track many programmes including the redevelopment of the north and north east.

But at the least it sends the republic a message that the President is taking the economy seriously despite the herculean task he is presented with – whether all Sri Lankans agree with the Presidential nominee for the plum post of Treasury Secretary is debatable. But yet again the President is known to make decisions and go with them irrespective whether it has islandwide support or not. His strength is derived from the rural electorate and as long as that remains intact he would go along with his decisions.

(faraz@thesundayleader.lk)