The perils of prosecuting international crimes
Audio interview with John Quigley
2009-08-06, Issue 445
As unease grows amongst many African states about the highly discretionary and selective application of international criminal law by the International Criminal Court (ICC), particularly related to the warrant of arrest for Sudan's President Bashir and his role in the Darfur conflict, South African NGOs are planning to launch an application with their National Prosecuting Authority and Directorate for Priority Crimes Investigation for prosecution in South Africa of individuals responsible for war crimes and crimes against humanity committed in Gaza during Operation Cast Lead (the conflict in Gaza between December 2008 and January 2009).
A recent study conducted by SA's Human Sciences Research Council (HSRC) has found that Israel is practising both colonialism and apartheid, so this matter has added significance for anti-apartheid campaigners.
The Darfur matter has rightly attracted much attention and support particularly from groups who are lukewarm, or conspicuously silent, on the idea of the prosecution of Israel, even if it includes action against Palestinian militants. One of the lead legal Counsel in the planned matter is veteran anti-apartheid academic and activist Professor John Dugard, who was UN Special Rapporteur of the Commission on Human Rights (later Human Rights Council) on the situation of human rights in the Occupied Palestinian Territory (2001-2008). Dugard also lead the Arab League's International Fact Finding mission on the Gaza conflict, and twice sat as an ad hoc judge in the International Court of Justice and is a member of the UN International Law Commission. An interview with Dugard on the fact finding mission can be found on Pambazuka News.
The application for prosecution in Spain met with resistance and it is considering reversing its laws allowing for universal jurisdiction for international crimes, including war crimes and crimes against humanity. Previously, in the United Kingdom, an Israeli official who was facing a warrant of arrest was ‘tipped off’ and did not enter the country. In this context, it is highly debatable whether alleged Israeli or Palestinian war criminals will eventually be brought to justice, either at the national or international levels.
This interview with Professor John Quigley of Ohio State University [mp3] is an exploration of the legal issues that may arise from the prosecution of international crimes. While rather long, it aims to inform about the specialised nature of such prosecutions, which are very different from normal criminal cases.
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* Professor John Quigley is a professor of law at Ohio State University.
* Riaz K. Tayob is a journalist with the Third World Network. He conducted this interview in his personal capacity.
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