The West picks and chooses which world leaders will be tried for breaking international law [GALLO/GETTY]



Santa Barbara, CA – From all that we know, Charles Taylor deserves to be held criminally accountable for his role in the atrocities committed in Sierra Leone during the period 1998-2002. Taylor was then president of Liberia, and did his best to encourage violent uprisings against the governments in neighbouring countries so as to finance his own bloody schemes and extend his regional influence. It was in Sierra Leone that “blood diamonds”, later more judiciously called “conflict diamonds” were to be found in such abundance as to enter into the lucrative world trade, with many of these diamonds reportedly finding their way eventually onto the shelves of such signature jewelry stores as Cartier, Bulgari and Harry Winston, and thereby circumventing some rather weak international initiatives designed to protect what was then considered the legitimate diamond trade.

It is fine that Charles Taylor was convicted of 11 counts of aiding and abetting war crimes and crimes against humanity of the rebel militia that committed atrocities of an unspeakable nature, and that he will be sentenced in early May. And it may further impress liberal commentators that fair legal procedures and diligent judicial oversight led to Taylor’s acquittal with respect to the more serious charges of “command responsibility” or “joint criminal enterprise”. Surely, the circumstantial evidence sufficiently implicated Taylor in a knowing micromanagement of the crimes that it would have seemed reasonable to hold him criminally responsible for the acts performed, and not just for aiding and abetting in their commission. I share the view that it is desirable to lean over backwards to establish a reputation of fairness in dealing with accusations under international criminal law. It is better not to convict defendants involving crimes of state when strong evidence is absent to uphold specific charges beyond any reasonable doubt. In this respect, the Taylor conviction seems restrained, professional and not vindictive or politically motivated.

“The United States, more than any country in the world, holds itself self-righteously aloof from accountability on the main grounds that any international judicial process might be tainted by politicised motivations.“

But as Christine Cheng has shown in a perceptive article published online on Al Jazeera, there are some elements of this conviction that feed the suspicion that the West is up to its old hypocritical tricks of seizing the moral high ground while pursuing its own exploitative economic and geopolitical goals that obstruct the political independence and sovereignty of countries that were once their colonies. As Cheng points out, the financing of the Special Court for Sierra Leone was almost totally handled by the United States, United Kingdom, the Netherlands and Canada. In addition, there were pragmatic reasons to make sure that Taylor was never allowed to return to Liberia, where he retains a strong following. It was feared that if Taylor were back in Liberia he would likely again foment trouble in the Liberian sub-region, and this would make it impossible to restore stability, and begin “legitimate” mining operations, which is what the West apparently wanted to have happen in Sierra Leone.

A double standard on criminality

What is dramatically ironic about the whole picture is that the United States is the number one advocate of international criminal justice for others. President Obama has even taken the unprecedented step, on April 23, 2012, of establishing an Atrocity Prevention Board under the authority of the National Security Council, and headed by Samantha Power – a prominent human rights activist that has been serving in his administration. In his speech of April 23 at the US Holocaust Memorial Museum, announcing the formation of the board, Obama said that atrocity prevention and response was a “core national interest of and core moral responsibility” of the United States. It is hard to fault such an initiative in light of the faltering US (and UN) response to recent allegations of mass atrocities in Syria and Sudan, and against the background of refusing to be more pro-active back in 1994, as a grotesque and preventable genocide unfolded in Rwanda. At the same time, there is an impression, the essence of the liberal mentality, of Uncle Sam surveying the world with a blinkered vision, seeing all that is horrible while overlooking his own deeds and those of such friends as Israel or Bahrain.

Heeding the sound of one hand clapping, it might be well to remember that the United States – more than any country in the world – holds itself self-righteously aloof from accountability on the main ground that any international judicial process might be tainted by politicised motivations. Congress has even threatened that it would use military force to rescue any US citizens that were somehow called to account by the International Criminal Court in The Hague, and has signed agreements with more than 100 governments pledging them not to hand over US citizens to the ICC. And yet it is international criminal lawyers and human rights NGOs from the US that have been most loudly applauding the outcome in the Taylor case, without even a whimper of acknowledgement that there may be some issues relating to double standards. If international criminal adjudication is so benevolent when prominent Africans are convicted, why does the same not hold for US officials? Given the structure of influence in the world, there exists more reason for Africans to be suspicious of such procedures than for Americans who fund such efforts, and who are so influential behind the scenes.

“When the application of international criminal law serves the cause of the powerful, it will be invoked, extended, celebrated, even institutionalised, but only so long as it is not turned against the powerful.“

If aiding and abetting is what the evidence demonstrates, then should there not be at least discussion of whether international diamond merchants and jewelry retailers making huge profits by selling these tainted diamonds should be investigated, or even prosecuted? There was a voluntary, self-regulating certification procedure was established, the Kimberly Process (2001) – named after the city in South Africa where the meeting of concerned governments, corporate leaders and civil society representatives took place. This joint initiative was especially pushed by large diamond sellers, such as the notorious De Beers cartel of South Africa, that were distressed by the downward effect on world prices by the availability of blood diamonds.

A British NGO, Global Witness, reports that almost none of the prominent diamond retailers took any notice of this cooperative effort to restrict the flow of blood diamonds, and seemingly purchased diamonds at the lowest price without enquiring too much as to their origins, or complying with the certification requirement established by the Kimberly Process. The latter process was partly developed to avoid a civil society backlash protesting this indirect support of atrocities, as well as to protect the market shares and control of the established international companies that had long dominated the lucrative trade in diamonds. But isn’t revealing that Western corporations are asked to act in a morally responsible manner by way of a voluntary undertaking, while political leaders of sovereign states in Africa are subject to the draconian rigour of international criminal law?

Overlooking atrocities

These issues are absent from the Western public discourse. Take the self-satisfied editorial appearing in the Financial Times (April 27, 2012). It starts with words affirming the larger meaning of Taylor’s conviction: “A strong message was sent to tyrants and warlords around the world yesterday. International law may be slow, but even those in the higher ranks of power can be held to account for atrocities committed against the innocent.” And the editorial ends even more triumphantly, and without noticing the elephant standing in the middle of the room, that leaders “… in states weak and strong – now know that there can be no impunity for national leaders when it comes to human rights.” Such language needs to be decoded to convey its real message as follows: “National leaders of non-Western countries should realise that if their operations henceforth stand interfere with geopolitical priorities, they might well be held criminally responsible.”

There are several observations that follow:

If non-Western leaders are supportive of Western interests, their atrocities will be overlooked, but if there is a direct confrontation, then the liberal establishment will be encouraged to start “war crimes talk” – thus Milosevic, Saddam Hussein and Gaddafi (killed before proceedings could be initiated) were charged with crimes, while the crimes of those governing Bahrain, Saudi Arabia and Israel are ignored.

The great majority of cases dealing with international crimes have been, up to this point, associated with events and alleged criminality in sub-Saharan Africa, confirming the extent to which this region has been devastated by bitter conflicts, many of which are attributable to the remnants of colonialism (divide and rule; the slave trade; formation of arbitrary boundaries separating tribal and ethnic communities; apartheid; the continuing quest for valuable mineral resources by international business interests etc).

The Western mind is trained not to notice, much less acknowledge, either the historical responsibility of the colonial powers or the unwillingness of the West to submit to the same accountability procedures that are being relied upon to impose criminal responsibility on those who are perceived to be blocking Western economic and political interests.

‘What is dramatically ironic about the whole picture is that the United States is the number one advocate of international criminal justice for others’ [GALLO/GETTY]

The United States is particularly vulnerable from these perspectives. When we hear the names of Guantanamo Bay and Abu Ghraib, the immediate association is with US war crimes. When US leaders openly endorse reliance on interrogation techniques that are generally condemned as “torture”, we should be commenting harshly on the wide chasm separating “law” from its consistent implementation. When a soldier, such as Bradley Manning, is reported to have exposed the atrocities of the Iraq and Afghanistan wars, he is held in humiliating prison circumstances and prosecuted for breaching secrecy, with suggestions that his intent was “treasonous”, that is, intended to help enemies. At least, if there was a measure of good faith in Washington, it should have been possible to move forward on parallel paths: hold Manning nominally responsible for releasing classified materials, mitigated by his motives and absence of private gain, but vigorously repudiate and investigate the horrible crimes being committed against civilians in Iraq and Afghanistan, as well as the battlefield practices and training programs that give rise to such atrocities.

Hypocritical punishers

The Western powers have gone significantly further in sculpting international law to their liking. They have excluded “aggressive war” from the list of international crimes contained in the Rome Treaty which governs the scope of ICC jurisdiction. When the defendants were the losers in World War II, aggressive war was treated at Nuremberg (and Tokyo) as the supreme war crime – as it was declared to encompass the others: war crimes and crimes against humanity. The UN Charter was drafted to reflect this outlook, by unconditionally prohibiting any recourse to force by a state except in self-defence – narrowly defined as a response to a prior armed attack. But in the decades that followed, each of the countries that sat in judgement at Nuremberg engaged in aggressive war and made non-defensive uses of force – and so the concept became too contested by practice to be any longer codified as law. This reversal and regression exemplifies the Janus face of geopolitics when it comes to criminal accountability: when the application of international criminal law serves the cause of the powerful, it will be invoked, extended, celebrated, even institutionalised, but only so long as it is not turned against the powerful. One face of Janus is that of international justice and the rule of law, the other is one of a martial look that glorifies the rule of power on behalf of the war gods.

Where does this line of reasoning end? Should we be hypocrites and punish those whose crimes offend the geopolitical gatekeepers? Or should we insist that law, to be law, must be applied consistently? At least these questions should be asked, inviting a spirit of humility to emerge, especially among liberals in the West.

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).

He is currently serving his third year of a six-year term as a United Nations Special Rapporteur on Palestinian human rights.

Follow him on Twitter: @rfalk13