CLOSING GUANTANAMO: A Case for the International Criminal Court

JAZZMAN CHRONICLES. DISSEMINATE FREELY.

On July 17, 1998 an assembly of diplomats in Rome created the International Criminal Court and charged it with the responsibility of prosecuting individuals accused of committing crimes against humanity, war crimes, genocide and crimes of aggression.

The Court opened its doors on July 1, 2002, made its first arrest in March 2006 and began its first trial on January 26, 2009. The Court’s jurisdiction is limited to crimes committed after its inception. It has 108 member states sworn to abide by its principles and to be held accountable by its authority.

Along with China, Russia and India, the United States is not a signatory to the ICC for the simple and obvious reason that it does not wish to suffer the indignity of seeing its own leaders prosecuted for a multitude of crimes.

On January 20, 2009 Barack Obama became president of the United States. Among his campaign promises was a pledge to uphold the rule of the law and the standards of international justice. On January 21, 2009 the new president ordered the closing of the notorious prison for “unlawful enemy noncombatants” at Guantanamo Bay, Cuba.

The closing of the Guantanamo detention facility opens a Pandora’s box of problems, including what to do with some 245 prisoners held there as well as hundreds more held at Bagram Air Force Base in Afghanistan and other facilities where detainees denied due process of law have suffered inhumane treatment. Of equal importance is the matter of accountability for those who committed these crimes.

It has been suggested that the disposition of prisoners illegally held in Guantanamo Bay and elsewhere offers four alternative paths: (1) Release of the prisoner to his country of origin, (2) Trial in military tribunals, (3) Trial in the civil courts and (4) Creation of a new and independent system of justice.

Each of these alternatives opens a new plethora of problems. First, the country of origin may not want the prisoner or may not be equipped to provide a just disposition of his case. Second, military justice has already demonstrated it cannot provide an equitable process. Third, civil courts are not designed for such cases and are not subject to international law. Fourth, the creation of a new system of justice cannot assure independence and would be stymied by lack of precedence. None of these solutions would meet the essential criterion of international credibility. Further, none would have jurisdiction over the perpetrators of the crimes of unlawful detention and inhumane treatment.

I propose another alternative and one that would serve as a powerful message in action to bolster what our new president has said in words: Change has come to America.

It requires that President Obama take the dual action of accepting the jurisdiction of the International Criminal Court and referring the case of unlawful detentions and torture to the United Nations Security Council. The United States Senate in its infinite wisdom might prevent the president from signing on to the Court’s jurisdiction but it cannot block referral to the Security Council.

Once referred, the Court would be empowered to investigate and prosecute all individuals for whom a compelling case of crimes against humanity can be made, including members of government and the head of state.

Further, the Court would be empowered to call the victims of crimes to testify, to participate in the proceedings and to request reparations.

Finally, the Court would be empowered to order a just disposition of each case, including restitution, rehabilitation and compensation.

In the event the Court found no grounds to release a prisoner it would be empowered to specify the conditions of equitable adjudication and the engagement of the Court would ensure the cooperation of 108 member states.

We cannot know where this process would lead or how it would end. That is the point. Justice is not justice if its ends are fixed or biased to a certain conclusion.

We cannot expect our new president to take such a bold and decisive step, which is precisely why he should take it. It would signal to all nations that the United States no longer considers itself above the law. It would inform all nations that they too would be subject to the inalterable pronouncement of justice. It would serve notice to every dictator and unscrupulous leader that they too will be held to account for their actions. It would deliver a warning to even the most powerful nations on earth that acts of aggression and inhumanity will no longer be tolerated.

It would legitimize international justice and in so doing it would be the beginning of the end of state sponsored genocide, terror, crimes against humanity and acts of aggressive war.

Jazz.

JACK RANDOM IS THE AUTHOR OF THE JAZZMAN CHRONICLES (CROW DOG PRESS) AND GHOST DANCE INSURRECTION (DRY BONES PRESS). THE CHRONICLES HAVE BEEN POSTED ON THE ALBION MONITOR, BELLACIAO, BUZZLE, COUNTERPUNCH, DISSIDENT VOICE, THE DAILY SCARE, THE NATIONAL FREE PRESS, PACIFIC FREE PRESS AND CANADA NEWSDAILY. SEE WWW.JAZZMANCHRONICLES.BLOGSPOT.COM.