APPENDIX 6
Memorandum from Mr Gareth Howell, Dorset
GUANTANAMO AND
US SIGNATURE
1. The first problem that springs to mind
with the ratification of the International Convention is the lack
of commitment to it by the USA, that the internees at Guantanamo
Bay were not subject to the ICHR because the USA has not ratified
it. Consequently the commitment by the President of the USA that
their human rights would be observed, seemed an empty one, if
not thoroughly condescending. The charge that Human Rights matter
but only when it is convenient for the USA to make them so, is
an accurate one.
IRAQ
2. It must seem to a great many people,
not least democratically minded US citizens running the campaign
"Hands off the Arabs!", that the human rights of the
greater number of Iraqi people for example, are being challenged
on a daily basis simply for the sake of having a whipping boy
somewhere in the world to set an example by. It may be a long
time before the USA does ratify the Convention and incorporate
it into US law.
ICC
3. I am quite certain too that the ICC represents,
as stated in Chapter 6, Human Rights and Justice, of the FCO report,
a new era for that international justice. Whether it will be an
era where "good" and lasting judgments are made upon
those who could not previously be brought to trial, only time
will tell. The back drop of the ICC and the Rome statute has been
an extraordinary and ever increasing change in the interaction
of culturally diverse communities worldwide, although the need
for such an international court is clear.
PINOCHET
4. The ever closing ring around Pinochet
the South American dictator who graced the coffee houses of the
West End of London for some years before he was finally arrested
on then spurious charges of genocide, spurious at least because
there was no court capable of trying a former head of state, for
"crimes" commissioned during the year of presidency.
Presumably now if the UK were involved in a war in which serious
human rights abuses or genocide occurred the head of state of
the UK would now be at the head of the chain of command which
committed the crimes contrary to human rights. Clearly the responsibilities
of commissioning crimes capable of being heard by the ICC, would
not fall on the shoulders of a ceremonial president, otherwise
the Queen or King of England might stand accused.
ROME STATUTE
AND ARTICLES
5. The back cloth to Pinochet's trial was
the impending ratification of the Rome Statute and the realisation
incorporated into that statute that no alleged crimes could be
tried which were retrospective. Consequently the only possible
charge was one commissioned to hunt down a certain functionary
of the state while he (P) was second in command of that state
in 1973. That allegation was not upheld but had the composition
of the court been different politically it might well have done.
The States Parties of the Rome Statute may be a useful counter
measure to such objections of political bias. So Article 24 of
the Statute Non-retroactivity ratione personae is a proper one.
So Article 27 Irrelevance of official capacity
1. This Statute shall apply equally to all
persons without any distinction based on official capacity. In
particular, official capacity as a Head of State or Government,
a member of a Government or parliament, an elected representative
or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and
of itself, constitute a ground for reduction of sentence.
is also a proper one.
ICTY
6. With regard to the ICTY it does seem
that the people of all the beleaguered Balkans are complying with
the international law that Milosevich was so determined to prove
wrong with his vision of history as being one of repeating itself
again and again, that he might be dragging the rest of Europe
into a 1940's style war as a consequence of the Balkans being
a kind of crucible of thought and action for the rest of Europe.
It is true that the military war games specialists have always
been one jump ahead of the protagonists of such a theory in such
a way that the bluff of the theory has been well and truly called.
RESPONSIBILITY
7. It is therefore appropriate that those
who have set themselves up to be the philosophers and arbiters
of such chaos based on such foolish preconceived ideas should
be called to account in a court of law. The concept of the "responsibility"
of a head of state, or officer of it is an exceptionally difficult
one to explain. The fact that somebody is charged with a series
of murders but has not in reality been anywhere near the scene
of those murders and is yet found guilty of them, and reasonably
so, but not in the least bit obviously to anybody unfamiliar with
the chain of command of organisation, is not easy to explain.
It is not a conspiracy but an incitement, but which only becomes
to be an incitement rather than a decision of the head of state,
as a consequence of general opinion or later events. It is easy
to forget too that until now the concept of a head of state as
being entirely irresponsible has been a principle of law.
8. Say for example that the British cabinet
over the last four or five years commissioned the murder of a
dozen people and then did their best to conceal by the relevant
50/100 year laws of government secrecy, those facts of murder
from the populace, would they if they were found out then be indictable
at the International Criminal Court??? Probably not.
9. No there is a distinct suggestion that
the ICC is a convenient apparatus for some but not for others
and any way it is the sacel of the crime that is important. We
are concerned with Murder and mayhem caused by executive decision
but murder and mayhem by the thousand.
KARADZIC AND
MILOSEVICH
10. In all the endeavours to find and arrest
the said War criminals of the Balkans over the last few years
I find the case of Mladavan Karadzic the most instructive. He
had a fair inkling of what would happen and did not hesitate to
become involved with those people to whom he, as a poet, believed
he had a duty. If he enjoys the loyalty of those people after
the event then his imprisonment alienates all of those people.
That makes him the poet that his Father also most surely was.
It reintroduces an ancient concept of the imprisonment of national
heroes in places far away and beyond their power to defend; the
romantic hero which he is glad to be and made it clear that he
intended to become before the war began. This is surely no receipt
for the handing down of law? His apparent self imposed imprisonment
in a monastery somewhere probably in Croatia is further evidence
of his leadership of people who believed they were aggrieved,
and for whom he spoke. Whether he commissioned murder in a deliberate
way, I do not know.
11. I have only seen one photograph of him
with military fatigues but that is a trivial definition. Milosevich
nearly always wore his banking hall bags, but then his recent
ridicule of the new President of Croatia who gave evidence against
him, was masterful, especially considering that he acts in his
own defence.
12. Again with regard to the self defence
of Milosevich at the ICC he makes the very good point that a national
leader who has made legislative decisions and judgments for some
years and is then taken to court to answer to criminal charges
relating to those executive decisions, can scarcely be expected
to ask somebody else to defend him. It would be tantamount to
admitting that he now realised that his legislating skills, his
philosophical approach, needed to be represented by somebody else,
because that is the best way in a court of law. I should say that
being represented by a lawyer then is an admission of guilt for
somebody who is to all intents and purposes a lawyer himself ,
though not as an interpreter of law, himself.
POLITICAL CALLING
13. While Pinochet knew that it didn't matter
except to his pocket (and even then was probably paid off by the
new government in Chile) on account of the creature of ICC and
Rome Statute in the background, so was represented by a team of
lawyers, Milosevich knows that it does so represents himself.
He would have no sense of himself as the leader of his people,
if he did not. Is it merely a question then of "whether you
were a good leader?" or whether more peaceful means were
available. It is not a crime, according to this new statute to
go to war.
14. The idea of a "Calling" to
a particular profession, including that of politics ,one of the
highest, may not include the idea of a need to rule peacefully
at all costs; indeed a soldier and politician would see war as
the best way of achieving his goals, whatever the received theories
of the function of a soldier in the modern world.. The effect
of understanding the value of Peace, was not lost on the most
obvious of pacifists, Mahatma Ghandi.
PACIFISM AS
A POLITICAL
CAUSE
15. A comparison of the political life values
of say Ghandi, Karadzic, and Milosevich, and the philosophical
and political values of Bertrand Russell based on profound scientific
knowledge, must allow us to evaluate also the real value to society
and to a very small world, of such as Milosevich and Mladic one
of his partners in crime.
RELIGION
16. The bond of religion is frequently one
of language as well, although that is one of those statements
which needs to be closely examined by anybody who only speaks
English as his mother tongue. To him Britannia may not rule the
waves any more but English certainly rules the airwaves and always
will. The bond that I mention of the mother tongue is almost as
certain to cause men to act in ways which seem entirely perverse
to the rest of the (English speaking) world, and yet for those
men still to feel entirely justified in what they do. The ICC
and the Rome statute may be capable of causing retribution and
punishment of individuals from states and groups of people, but
they may also be the cause of the loss of cultural diversity which
is surely to be valued in all corners of the earth.
17. An international criminal court dealing
with war crimes must surely consider as many facets of Peace as
possible whilst allowing that their brief is not to try warring
behaviour as such. It is questionable whether the imposition of
a supranational language, and a supranational imperial power such
as the USA has become, is a path to World Peace as suggested so
dramatically by President Reagan after the Reykjavik summit and
accord, especially if that group of states does not ratify the
international convention. What is certain is that cultural diversity
and individuality will be suppressed, precisely those qualities
that the theories of the sovereignty of states have done their
best to preserve.
Gareth Howell
Dorset
5 December 2002
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