War Is A Crime Gurdial Singh Nijar

IN a recent interview, Prime Minister Tun Dr Mahathir Mohamad spoke out against resolving conflicts through violence.

"Wars are no longer the solution for conflicts because it will be a disaster. The capacity of modern weapons is such that millions can die in a war.

"Already, in the Second World War, seven million people died. Whole countries can be destroyed," he said.

His stand against war exemplified by a sustained and consistent refrain: war is a crime. If killing one person is murder what about killing thousands through war, he lectured time and time again.

This dedication to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalise War and, significantly, the Kuala Lumpur War Crimes Tribunal – a tribunal of conscience with its own rules of evidence and procedures consistent with the highest standards comparable to the International Court of Justice and other national courts of law.

Two former UN assistant secretary-generals served in the supporting Commission: Hans Sponeck and Dennis Halliday. Three separate trials were conducted from 2011 to 2013.

The first, against then US president George Bush and UK prime minister Tony Blair for carrying out an illegal war against Iraq. The second against George Bush, Henry Rumsfeld, Richard Cheney and their lawyers for the international crime of torture. The third trial, against General Yarron and the State of Israel for genocide.

Former judges, academics and a former lead counsel for the International Criminal Court (ICC) sat as judges of the panels.

The elaborate evidence adduced comprised cabinet papers and correspondence between Bush and Blair; and the admissions in their memoirs. All made necessary by their refusal to testify – though served with the charges through their respective embassies (save for Israel, which has no local representation). Amicus curiae were appointed to represent them as is the practice of the ICC.

For the torture charges, witnesses ranged from those interred in the brutal prisons of Guantanamo (Moazzam Beg), Bagram and Abu Gharib to prisoners hog-tied, shackled hand and foot, water boarded, solitarily confined and subjected to creative extreme brutalities.

The third trial related to the massacre of Palestinians at the refugee camps of Sabra and Shatila (in Beirut) – commanded by Israeli General Yarron. Massacre survivors narrated how babies were gouged from the bellies of pregnant mothers, the brains of babies and kids blasted, menfolk lined up and shot in front of their wailing children and womenfolk. Families moved to "safe houses" that were then blown up.

Israel was charged with genocide – for instituting since 1948 a sustained campaign against the Palestinian people involving killing and deliberately inflicting conditions of life calculated to bring about the physical destruction of the Palestinians. Israeli historian, Ilan Pappe, narrated the forced systematic expulsion of 700,000 Palestinians since 1948 in execution of an ethnic cleansing plan.

Witnesses spoke of Gaza as a huge prison incarcerating two million people – subjected at will to incessant bombing; of acute poverty and illnesses in the West Bank and Gaza and of the 730 checkpoints – hampering the free movement of Palestinians in the tiny West Bank area; and subjecting them to abuse and humiliation at these checkpoints.

In each of these cases, the accused were found guilty. The judgments and notes of the proceedings have been published and are available at the webpage of the foundation. The records have been forwarded to the United Nations, the ICC and heads of government of several states.

Attempts are still afoot to move the ICC to initiate action against these wrongdoers.

Many at that time paid scant regard to these trials unfolding in KL. Some ungraciously attributed the exercise as an attempt by Mahathir to refurbish his legacy. Many others saw this initiative as challenging American-led militarism and mobilising the global South to mount an all-out struggle against war.

Admittedly, tribunals such as these have no capacity to punish. Their claim to effectiveness relies on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1967 to address criminal allegations arising out of the Vietnam War, whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society.

Richard Falk, Professor Emeritus at Princeton University, said the KL War Crimes Tribunal session "offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power".

This was echoed by Mahathir's insistence that no leader should any longer be able to escape accountability for such crimes against nations and peoples.

The value of the initiative, he said, lay elsewhere: "The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them ... In history books they should be written down as war criminals and this is the kind of punishment we can make to them."