The ICC’s decision to take action
against Russia’s Putin is in glaring contrast to its slow or non-existent
response to myriad war crimes in Asia, from the wars in Vietnam to Afghanistan
to Myanmar today.
By Philip
Smucker
March 31, 2023
Credit: Depositphotos
The world, and Asia in
particular, is trying to understand the implications of the International
Criminal Court’s arrest warrant for Russian President Vladimir Putin issued on
March 17, related to Russian efforts to forcibly deport thousands of Ukrainian
children to Russia.
The Russian president’s alleged crimes against humanity are
unique, but they are also comparable to ongoing and past war crimes committed
in Myanmar, Cambodia, Afghanistan, the Balkans, and even in Vietnam over 50
years ago by U.S. forces serving there.
The indictment of Putin recalls for me an era when journalists,
myself included, pursued reporting on war crimes in Cambodia, Afghanistan, and
the former Yugoslavia with genuine hopes that justice would and could be done,
albeit belatedly. In that bygone era, issues of “command and control,” as they
had gained prominence in the Nuremberg Trials, rose to the forefront of
journalistic and judicial efforts to tie leaders to crimes against humanity
that sprung from governmental orders and national strategies. War crimes courts
for the former Yugoslavia and Cambodia, established in 1993 and 2001
respectively with the assistance of the United Nations, were often driven by
news reporting, including testimony from reporters. The courts became models of
how to prosecute war crimes, providing victims with some relative justice and a
chance to be heard on national and international stages.
In the Balkans, President Milosevic, General Mladic, and Dr.
Radovan Karadzic were all eventually hauled into court along with a few dozen
others. Efforts in Cambodia, which ended in 2022, were far less successful than
those for the former Yugoslavia, as $337 million was spent to convict just
three men, including Khmer Rouge leader Khieu Sampan, a close associate of deceased
Khmer Rouge leader, Pol Pot.
Today, it is fair to ask if the indictment of Putin will alter a
haphazard international effort to prosecute war crimes, particularly since the
United States, China, and Russia all refuse to acknowledge the jurisdiction of
the International Criminal Court (ICC), which, while independent, was
established with the assistance of the United Nations in Rome, Italy in 1998.
The chief reason to doubt that the ICC – which has flexed its investigative
powers in Asia – will gather a new consensus for international action is that
the big powers, while paying lip service to the efforts of the ICC, are adamant
that they will not recognize a body that could put on trial their own soldiers
or leaders. This sends a strong message to all other nations.
Establishing an international body capable of remaining above
the fray of international politics, and gaining the support of the entire
world, was never going to be easy. Yet most nations (with some obvious
exceptions) remain in agreement, in principle, that violations of the Geneva
Conventions (for warfare) and genocide, the elimination of entire ethnic and
religious groups of people, are egregious crimes against humanity and should be
prosecuted.
Crimes Against Humanity in Asia: A Long and Horrifying List
While the press has often cast a discerning eye on alleged war
crimes in Asia, prosecutions or consequences of any kind have been far and few
between. The U.S. Army’s own war crimes in Vietnam, while well-documented in
the press, including by U.S. reporters, were investigated but not prosecuted
beyond some notable house arrests. On March 16, 1968, 55 years ago, First Lt.
William “Rusty” Calley and his platoon murdered at least 300 Vietnamese
civilians in the South Vietnamese hamlet of My Lai. After corralling villagers,
Calley asked his own soldiers to “take care” of the civilians. Asked what he
meant by the order, Calley told one inquisitive private, according to a
subsequent U.S. Army investigation, “No, I mean kill them.” Calley and his men
in “Charlie Company” committed murders, as civilians described them, that
resulted in “huge holes being blown into bodies, limbs being shot off, and
heads” decapitated.
Donald Kirk, a prominent Asia correspondent and author of the
book on Vietnam, “Tell it to the Dead,” investigated the My Lai massacre in its
aftermath. He told The Diplomat: “The case of My Lai (and other villages and
hamlets) had to be investigated. Calley got a dishonorable discharge but was
sentenced only to house arrest, not prison. The investigation should have gone
much further than it did into what happened at My Lai and elsewhere, up the
chain of command to the higher-ups who distanced themselves, contributing to
the cover-up.”
Kirk, who also covered events in Cambodia before and after the
Khmer Rouge takeover, said that it was a failure that the United States refused
to take investigations in Vietnam to the level of command responsibility. “In
war, each side accuses the other while overlooking or glossing over its own
misdeeds,” he added. “We should not let policymakers off the hook since they
are responsible for the crimes committed [by soldiers] as a result of their
policies and orders.”
If the Vietnam War displayed U.S. hubris and a reluctance to
investigate and prosecute war crimes, the so-called “War on Terror” of the 21st
century proved that the U.S. government would continue to pay only selective
attention to war crimes. After 9/11, when the threat of terror instigated by
Islamic groups and aimed at Western interests rose to the fore, war crimes, as
they were featured in the Balkan era, were simply ignored or even tolerated,
particularly under the administration of George W. Bush, whose policies
advocating various forms of recognizable torture were advocated by then-Vice
President Dick Cheney and a coterie of White House legal eagles.
When I arrived in Afghanistan in 2001, the coverup of U.S. war
crimes, unbeknownst to me, had already begun. When I interviewed U.S. General
Dan McNeill about his efforts to hunt down al-Qaida members, growing tensions
between the U.S. Army and the International Committee for the Red Cross (ICRC)
was not apparent. ICRC officials had been refused access, except on rare and
controlled visits, to the U.S. Bagram airfield prison facility where Afghans
were being systematically beaten while chained to the ceiling, according to
later testimony from U.S. soldiers.
Strong investigative reporting by the New York Times’ Carlotta
Gall, among others, would reveal deaths in custody of at least two Afghans in
Bagram while McNeill maintained oversight of the facility. As former Time
reporter Margaret Carlson would write years later about McNeill’s subsequent
military promotion, “[I]f anyone should be court-martialed, it should be Gen.
McNeill,” who claimed with a straight face at the time that two Afghan beating
victims had died of “natural causes.” As Carlson noted in a piece in the
Huffington Post, “After natural causes became suspect, McNeill claimed Dilawar
(one of the two dead) had died of coronary disease,” when, in truth, one of his
legs had been “beaten to a pulp.” However, such severe torture was part and
parcel of US policy early on in the “War on Terror.”
Like so many hundreds of Afghans taken in sweeping roundups, the
two Afghan civilians had been subjected to harsh interrogation with constant
questions about where bin Laden was hiding. Indeed, the U.S. military had
already missed him at the battle for Tora Bora in the Spin Ghar mountains and
he was well ensconced in Pakistan by the time of the Bagram murders.
Today, Afghanistan’s five decades of recent conflict present an
immense conundrum to anyone trying to look into or prosecute war crimes by the
deposed Afghan government, the current Taliban regime, or the now-departed
U.S.-led coalition military forces. In recent years the ICC launched a
widespread probe of war crimes committed in Afghanistan, including torture.
As The Diplomat reported at the time,
the Trump administration, playing to a conservative U.S. following, denounced
the ICC and its chief prosecutor Fatou Bensouda. But then, the ICC did its own
reputation for even-handedness no favors by announcing that it would prioritize
only investigations into the activities of the Taliban and the Islamic State,
leaving aside the U.S. government and its military.
Even that, however, has become a Sisyphean task as the Taliban
now run the government but remain officially unrecognized by any other nation.
(China, Russia, and Pakistan, meanwhile, have accredited Taliban diplomats.)
With no means to travel to investigations in Afghanistan, the ICC has not begun
serious investigations into anyone’s crimes against humanity there. The United
Nations, apparently obsessed with its own humanitarian engagement with the
regime, does not appear to be leading a new charge to hold the Taliban or
anyone else accountable for war crimes.
Meanwhile, despite numerous and widespread reports of abuses by
foreign coalition forces in Afghanistan between 2001 and 2021, only after a
decade did U.S.-led coalition forces and NATO members bring charges against
soldiers. The most prominent of trials examined the actions of a dozen U.S.
soldiers in the murder of three Afghan civilians in Kandahar, a crime that
involved the collection (and filming) of body parts as trophies in what came to
be called the “Maywand Murders.” Staff Sgt. Calvin Gibbs was
found guilty in a military court in 2011 of being the leader of a U.S. Army
“thrill kill team” that murdered three Afghan civilians for sport.
Australia and the United Kingdom have conducted their
investigations into alleged war crimes with fewer convictions. While a 2020
report by the Inspector-General of the Australian Defense Force found “credible
information of war crimes committed by the ADF in Afghanistan between 2005 and
2016,” to date, no individuals have been referred for prosecution. Just last
week, the United Kingdom launched a probe into
whether U.K. special forces stormed the houses of two Afghan families and
executed their relatives.
Do War Crimes and Investigations Matter?
The benefits of proper trials, testimony, and prosecution of war
crimes go well beyond courtroom arguments and even convictions. For example, in
2021 and 2022, the U.N.-backed tribunal for Cambodia heard from dozens of
Cambodians, who had the chance to testify as to the humiliations and brutal
crimes ordered by Khieu Sampan. As with the victims of genocide in Bosnia,
Cambodians who were victims of crimes against humanity were given a chance to
see justice, accountability, explanations, and finally some closure to an era
that left nearly 2 million Cambodians dead of execution, imprisonment, forced
labor, torture and starvation.
Other Asian countries, including Myanmar, and regions (Tibet,
Xinjiang, and West Papua, for example) brutalized by policies overseen and
perpetrated by their own governments have never had a chance to witness the
prosecution of crimes against humanity or war crimes.
In Myanmar, following the Tatmadaw’s expulsion of hundreds of
thousands of Rohingya refugees, and a new military take-over of that country
two years back, an estimated 20,000 civilians have been detained while
thousands have been killed, often in custody of the Myanmar military.
Even as a civil war has intensified inside of Myanmar, with National League for
Democracy (NLD) leader Aung San Suu Kyi languishing in prison on trumped-up
charges, the ICC has failed – along with most foreign governments thus far – to
accept the NLD’s National Unity Government as a viable governing body capable
of providing the ICC with proper jurisdiction to investigate war crimes.
Likewise, the U.N. Security Council, which remains under the
sway of superpowers reluctant to help, has not referred the myriad crimes in
Myanmar to the ICC. While judges at the ICC are engaged in investigations
of the mass persecution of Rohingya Muslims, the disconnect between those
efforts and demands for broader justice in Myanmar is clear. ICC officials,
arguably lacking in resources and broader international backing, appear bogged
down with the Rohingya issue even as Myanmar is plunged deeper into civil war
and ever-expanding allegations against the Tatmadaw. (Myanmar, like so many
superpowers, is not a party to the Rome Statute that founded the ICC.)
Meanwhile, well-documented abuses against ethnic groups in their
ancestral homelands in China (Tibet, Xinjiang) and Indonesia (West Papua) have
seen virtually no move toward justice at the international level.
Cause for Some Optimism?
The ICC, not unlike other institutions weakened by a lack of
international willpower, embodies the failures of the world to embrace the need
to tackle war crimes, including mass deportations of children, violations of
the Geneva Conventions, and genocide. Big powers and the media all play – in
their own way – key roles in selectively emphasizing the value of prosecuting
war crimes in one country over the value of doing the same in another. Indeed,
news coverage of war crimes, if it is not independent and dogged in its pursuit
of justice, risks becoming just a mirror of the national and political
interests that have resulted in the failures of the ICC and other U.N.-backed
tribunals.
Though recent coverage, apart from some selected reporting and
opinion pieces, has stressed the importance of the ICC and the prosecution of
war crimes committed by Russian forces in the Ukraine, major media outlets have
made only limited comparisons to outstanding crimes against humanity outside of
the Ukraine theater. Broader issues of international impunity are rarely
addressed and no coordinated international approach to war crimes has even been
well articulated.
The overt hypocrisy of big powers like the United States,
Russia, and China is rarely at the forefront of the debate – though their
reluctance to support prosecutions is the main impediment to institutional
means of tackling crimes against humanity in Asia and around the world. In the
U.N. Security Council, these same world powers are willing to discuss justice –
mainly other people’s justice – though they remain unwilling to submit to the
jurisdiction of an independent body devoid of their own national interests.
Seasoned war correspondents like Donald Kirk, see clearly why the U.S.
government is showing selective interest in Ukraine and Russian crimes. “As far
as we’re concerned, [Putin] is the leader of the enemy and should be tried for
his crimes, which are very much against what we perceive as our own ‘national
Interest,’” he said.
“We need to know, of course, that Putin will never go on trial
as the war sizzles on for years.”
All told, it is not possible to read tea leaves of what lies
ahead for prosecuting crimes against humanity in Russia, Afghanistan, or even
in Myanmar. I can recall a time when jaded news reporters chuckled at the
notion that Milosevic would ever end up in a jail cell in The Hague,
Netherlands, but, in the end, it happened. If there is a will, there can be a
way, and so surely time will provide insight into the truth of Martin Luther
King’s words that “the arc of the moral universe, though long, bends towards
justice.”
AUTHORS
GUEST AUTHOR
Philip Smucker
Philip Smucker is a news reporter and author of “My Brother, My
Enemy: America and the Battle of Ideas across the Islamic World” and “Al
Qaeda’s Great Escape: Military and Media on Terror’s Trail.”
