Global Policy Forum

Washington says groups' bid proves ICC a political tool.

A coalition of lawyers and human rights groups yesterday unveiled a bid to use the UN's new International Criminal Court as a tool to restrain American military power. In a move Washington said vindicated U.S. claims that the court would be used for political purposes, the rights activists are working to compile war crimes cases against the United States and its chief ally in Iraq, Britain.

"There is a way that the United States can be accused ... of aiding and abetting war crimes," said Michael Ratner, president of the Center for Constitutional Rights. The U.S. last year renounced the ICC, predicting it would become a political tool for opponents of U.S. foreign policy to launch frivolous prosecutions against U.S. military and diplomatic personnel.

"It appears they are trying to manufacture a case against the United States," said a senior official with the Bush administration. "So this clearly would be an example of the type of politicization that we're concerned with."

As a non-member, the United States would normally be outside of ICC jurisdiction unless it was suspected of crimes in a country that is an ICC member, which Iraq is not. But the fact that Britain is a member has given the rights activists a springboard for a case that argues U.S. air raids that killed civilians were war crimes. "The U.S. used bombers that took off from England ... and from Diego Garcia, also U.K. territory," said Mr. Ratner, referring to a British Indian Ocean island possession.

Britain, as an ICC member, could be prosecuted on a much wider array of activities that resulted in civilian deaths, the activists said. Both U.S. and British officials have repeatedly said their forces make maximum efforts to avoid civilian casualties and never target civilians, which would violate the 1949 Geneva Conventions.

Rights activists joining Mr. Ratner yesterday were Phil Shiner of the British-based Public Interest Lawyers, and Roger Norman of the Committee on Economic and Social Rights. They said five eminent international lawyers will outline a case against the United States and Britain next month for submission first to an international "alternative" court called the Permanent Peoples' Tribunal in Rome, then the prosecutor's office of the ICC in The Hague.

People who had volunteered as Saddam's "human shields" will be among those contributing testimony. "Any evidence we can get hold of, we will present," Mr. Shiner said. "The [ICC] prosecutor would have a duty to investigate if there was credible evidence."

Mr. Shiner said the activists' case will probe the coalition's use, or suspected use, of cluster bombs, depleted uranium ammunition and fuel-air explosives. These weapons are unauthorized, he claimed, because they "can't distinguish between civilian or military" targets.

A cluster bomb consists of a canister that breaks apart to release a large number of small bombs. Because it has no precision guidance, it can wander off target if dropped from medium to high altitudes. Some of the bomblets typically do not explode, presenting a long-term threat to civilians.

While coalition forces say they do not use such bombs in civilian areas, U.S. forces launched an investigation into reports U.S. cluster bombs killed at least 11 civilians in Hilla, a city 100 kilometres south of Baghdad and the scene of heavy fighting.

Depleted uranium ammunition can pierce armour. But as a by-product of uranium enrichment, depleted uranium is mildly radioactive. It is also a heavy metal, and therefore potentially poisonous. "We know it has been used," Mr. Shiner said. However, he admitted the use of fuel-air explosives, which create giant fire balls, is not certain.

Mr. Shiner said the activists' case would also question coalition "methods," citing strikes on shopping markets and an attack that resulted in the deaths of two journalists at the Palestine Hotel in Baghdad. The United States and Britain have said at least one market strike may have been caused by Iraqi anti-aircraft fire. U.S. forces said U.S. troops were returning fire from suspected Iraqi forces in the Palestine Hotel. The Bush administration official said: "This is a baseless accusation and we'll treat it as such."

The ICC opened its doors for evidence collection on July 1, 2002, and has jurisdiction over crimes committed after that date. Canada is a strong supporter of the court. Philippe Kirsch, a Canadian international law specialist, is president of 18 ICC judges, but a prosecutor has yet to be selected.

In 2000, the prosecutor for the UN's special war crimes court for the former Yugoslavia threw out a bid by activist groups to prosecute NATO for war crimes over the 1999 bombing of Kosovo. That experience provided lessons, however. "We wouldn't be wasting our time if we didn't think this was credible," Mr. Shiner said.

The rights activists also said yesterday the United States should rethink its rejection last week of an ad hoc UN court to deal with the past crimes of Saddam's regime and any crimes by Iraqis against coalition forces. The U.S.-proposed alternative was "victors' justice," according to Mr. Ratner.

The United States is in the process of identifying Iraqi jurists who can help create new Iraqi courts that will try key members of Saddam's regime for past crimes. Washington also reserves the right to try Iraqis itself for war crimes committed during the current conflict. Among those alleged crimes are mistreatment of coalition prisoners and the deceptive use of the white surrender flag.

Because Iraq is not a member of the ICC, Saddam Hussein cannot be brought before the court.

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