Author: Alana Tiemessen

Defying Gravity: Seeking Political Balance in ICC Prosecutions

Reuters

Reuters

The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.
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Does the ICC Need to Reconcile with Africa? Bensouda Comes Out Swinging

(Originally posted at Justice in Conflict)

Photo: BBC

Fatou Bensouda, incoming Chief Prosecutor for the International Criminal Court, has put threatening war criminals and defiant states on notice. In several recent public statements she has directly addressed two of the Court’s most significant challenges: the accusation that the Court’s credibility suffers from a “pro-Western, anti-African” bias and the related issue of ensuring state cooperation and support, particularly in executing arrest warrants.

The argument that the ICC has (so far) unjustly targeted only African states and individuals is mostly based on misperception and has become a rhetorical tool of political elites to undermine the Court. Yes, all of the situations presently under the Court’s jurisdiction are from Africa. But as Bensouda and many others have pointed out, the Africa bias criticism is baseless for the following reasons.

African states wanted the ICC. Much of the strongest support for a permanent international criminal court in the Rome Treaty negotiations came from the Africa group. That support continued after Rome and African States Parties have a high level of ratification of the treaty (although, notably, a weak level of corresponding implementation legislation).

African states need the ICC. The empirical reality is that many situations of atrocities, and those that meet the (vague) “sufficient gravity” criteria for the Court to intervene, are in Africa. Moreover, many African states have a weak rule of law that fails to deter and respond to such atrocities, and so these situations justify the ICC’s intervention as a “court of last resort.” As Bensouda defended,

“The office of the prosecutor will go where the victims need us…The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”

African states invited and welcomed the ICC. Three states self-referred their situations to the Court (Uganda, DRC, and the Central Africa Republic) and three states initially welcomed and have since exhibited a satisfactory pattern of cooperation with the Court (Cote d’Ivoire, Kenya, and Libya). Only Sudan remains resolutely defiant and given its head of state is among the accused this should prove, not disprove, the ICC’s credibility. Bensouda expressed frustration that cooperation from African states and civil society is

“not the story relayed in the media…(and) anti-ICC elements have been working very hard to discredit the Court and to lobby for non-support and they are doing this, unfortunately, with complete disregard for legal arguments.”


J’accuse! African war criminals don’t want the ICC. Accusing the ICC of a “pro-Western, anti-African” bias is a rhetorical tool of the accused themselves. Accusing an international tribunal of pro-Western bias or victor’s justice is also not unique to the ICC – Goering, Milosevic, Taylor, etc. all rejected the tribunals they faced with this grandstanding challenge. The accused cannot defend their crimes, so they choose to undermine their accusers instead and invoke hyperbolic claims of racism and neo-colonialism.

African victims and civil society want the ICC. Despite the protestations of some political elites, there is substantial support for the Court’s investigations and arrest warrants among victim communities and civil society, whose support is essential for the ICC’s legitimacy and its ability to obtain witness testimony and evidence. The ICC also engages in outreach and assistance to war-affected communities and brings some hope of justice to those further marginalized by their victimization – something that domestic political and judicial institutions have less capacity and will to do.

The primary cause for concern is not the alleged bias against African states, but that misperceptions of bias have translated into obstacles to state cooperation on arrests and manipulation of the Court as a tool in electoral contests and war-making. The continued cooperation of elites in Kenya, Cote d’Ivoire and Libya will likely depend more on the circumstances of domestic politics and elections than on principled support for the ICC. And in the DRC, there is a renewed sense of urgency for Bosco Ntaganda’s arrest after he and his supporters defected from the ranks of the DRC military and have continued on the war-path in defiance of the ICC. The “Terminator’s” arrest is only likely to happen with the support of the DRC and (possibly) Rwandan governments and militaries. But Bensouda expressed concern about Ntaganda’s tactics and the need for state cooperation on his arrest:

“This level of blackmail – which I call it – in which perpetrators are saying that if you do not drop warrants against me, I’ll continue to kill people – I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.”

On cooperation with arrest warrants, the African Union is fingered for encouraging non-cooperation with the ICC, notably because of its 2010 call for non-cooperation on the Bashir arrest warrant and supporting Kenya’s request to the UNSC and OTP for a deferral of the indictments of its nationals. But as Bensouda argues, there are signs of improvement in cooperation with the AU and indeed the AU supported Bensouda’s nomination, believing the “African bias” of the ICC was more directly linked to outgoing Chief Prosecutor Luis Moreno-Ocampo and not the mandate of the Court itself.

It is wishful thinking, however, to assume that Bensouda will engender a cozier relationship with the AU simply because she is African. It is likely that the the ICC will become a more victim-centered court under Bensouda’s public leadership and prosecutorial strategy, which may lead to more interventions and engagement in Africa and not less.

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Peace vs. Justice: Is the ICC Doing It Wrong?

Photo from Still Burning

The Canadian International Council has rolled out a series of interviews and essays on “Peace v. Justice: The ICC and its Alternatives”. Far from flogging a dead theoretical horse, it’s a great renewal of a debate on the realities of the seemingly dichotomous choice between peace and justice.

Not to mention it’s a solid dose of Canadian scholarly insight and we debate very politely.

There are interviews with Kathryn Sikkink on the “justice cascade,” Leslie Vinjamuri on the role of the ICC in conflict zones, and Louise Arbour on the general debate. There are also essays on individual case studies that collectively demonstrate how peace and justice can be mutually reinforcing or come to blows when politics inevitably gets in the way. Check out essays by Mark Kersten on Libya, Stephen Brown on Kenya, Valerie Oosterveld on the Taylor trial, Rosalind Raddatz on the infamous General Butt Naked, and Simon Collard-Wexler on Timor Leste.  (More to come on Sudan, Kony 2012 and Canada’s truth commission.)
My own modest contribution is on “The Paradox of Lawfare.” Here’s a snippet:

The International Criminal Court precariously sits at the intersection of law, conflict, and politics. As such, the Court’s judicial intervention in ongoing conflicts and targeting of elite perpetrators of atrocities render it both an agent and a tool of what has been called “lawfare.” On the one hand, lawfare can refer to judicial interventions to curb atrocities through means that are coercive but morally preferable to military force. This form of lawfare is an ideal expression of liberal internationalism. On the other hand, the Court and global rule of law can be abused by states and political elites that seek to eliminate rivals and protect their own impunity. This is the paradox of the ICC – that it has so far been implicated in both legitimate and illegitimate uses of lawfare…

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“Truth to Power”: Louise Arbour on Human Rights and International Justice

CBC – CP file photo

The Canadian International Council recently organized an interesting public event with Louise Arbour on her role in speaking “truth to power.” The talk is available on line at Open Canada.org. (starts around 22min mark, after the introductions) and is constructed as a dialogue with Stephen Toope, President of the University of British Columbia and notable international law scholar.

Madam Arbour is known for being outspoken on the ICC’s prosecutorial strategy, shortcomings in the human rights regime, and advocacy on the Responsibility to Protect and especially the case of Sri Lanka. Arbour’s authoritative voice on these issues stems from her professional credentials and experience: former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, former justice of the Supreme Court of Canada, former United Nations High Commissioner for Human Rights, and presently the President of International Crisis Group.

It’s worth a listen. But for those interested in just the human rights and international justice stuff here are my selective highlights on the issues mentioned above.
(Note: these are not exact quotes as i’m a sloppy transcriber).

Human Rights
There is a need for adequate institutions, specifically an international human rights court. As long as the protection of human rights is in the hands of the duty bearers – the states – not surprisingly we’re not going to get very far.

Peace vs. Justice
The timing (of the Milosevic trial) was dictated exclusively by prosecutorial considerations. Some were concerned that a peace deal would put him out of reach…What it did to the peace process was not part of my brief.

The indictment of Gaddafi was very precipitous…it’s not an unfair assumption that it might have contributed to closing some doors to a negotiated settlement….The same actors in the Security Council that referred the Libya case to the ICC have not moved on Syria…The tensions between peace and justice are very present and will remain so until and unless we segregate the justice agenda from the political one.

Joseph Kony…probably accurate that the fact that he was indicted, at the end of the day, made it impossible for him to participate in peace talks…Political negotiators cannot deliver on that. The ICC process is a parallel track. It is not negotiable in peace talks.

What we need to do is what we do in domestic systems – we make it very clear that politicians don’t run indictments.

ICC and Africa
It would have been imminently predictable that the docket of the ICC would be heavily African. Apart from the cases of Security Council referral, all the other cases have come from countries that have ratified the Rome Treaty….That is the fundamental premise…The ICC was not engaged when there was, in my opinion and with lots of evidence, massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified the Rome Treaty.

The ICC might have been better advised, rather than try to downplay (the African bias) to really embrace it and engage with African governments – open offices, be there, be very present. As opposed to staying in The Hague and be very defensive that it’s only engaged in African issues.

Cooperation of authorities in the DRC with the International Criminal Court has been problematic from the beginning. It’s very unfortunate that the ICC only has jurisdiction in the Congo since the Court was created in 2002 when in fact the most catastrophic loss of life in the Congo took place in the decade before, from 1993-2003. When I was High Commissioner (for Human Rights) I launched what we called the “mapping exercise” to try to document that decade where between 3-5 million people were killed in the east of the Congo and there’s no legal regime to deal with it. The ICC has no jurisdiction so the idea was to hand this over to the Congolese authorities to try to encourage them to launch some kind of mechanism.

Accountability there (DRC), even with the ICC in place, it’s not almost ten years since the ICC has been in place and what? There are five, six people charged?….The ICC has a long way to go before it can be reflective of its mission in that environment

War on Terror and Sri Lanka
One of the most tangible and perverse effects of the War on Terror is the treatment of the war in Sri Lanka. The last few months, in 2009, of the thirty year old war whereby the government of Sri Lanka finally eradicated the LTTE was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was under the agenda of the War on Terror. The LTTE had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. And a lot of casualties in the last few months of the war are attributable to the LTTE itself – it’s not just government forces. But the way this was achieved would not have been tolerable if it had not been under the umbrella of one of the few so-called success stories of the War on Terror.


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Impunity Slayer! ICC Convicts Lubanga of War Crimes

Thomas Lubanga Dyilo listens to the verdict in his trial on March 14, 2012.
(c) Photo courtesy of the ICC-CPI / Evert-Jan Daniel /ANP.

The verdict is in for the ICC’s first trial. Thomas Lubanga Dyilo has been judged guilty of the war crimes of conscripting, enlisting and using child soldiers in the Democratic Republic of Congo (DRC). An order of reparations and sentencing will be decided at a later date. Lubanga could possibly face life imprisonment.

The judgement was unanimous and there were several interesting elements in the summary statement, delivered by Judge Adrian Fulford.
1) The prosecution team was slammed for its “lack of proper oversight” in using intermediaries, which the judges determined influenced and manipulated vulnerable witnesses. The testimony of several prosecution witnesses was therefore discarded or not taken into consideration.
2) The judges re-characterized the conflict in Ituri as a non-international armed conflict, which invokes different provisions of the Rome Statute but the criminal conduct remains the same.
3) There was evidence of sexual violence and rape against girls conscripted into the UPC but the judges could not rule on this because Lubanga was not charged for such crimes.
4) Lubanga, as a co-perpetrator, had both intent and knowledge of the UPC’s common plan to conscript, enlist, and use child soldiers under the age of 15 in the Ituri conflict between 2002-2003.

Background: The ICC and the DRC Situation
It’s been seven years since Lubanga was arrested and more than three years since the start of his trial. As a State Party to the Rome Statute, the DRC government self-referred its conflict situation to the ICC in 2004. The prosecutorial team’s subsequent investigation focused in on the Ituri region of eastern Congo where civilians suffered from massacres and sexual violence perpetrated by rival militias and warlords competing for power, ethnic loyalties, and pillaging and enriching themselves.  In line with the prosecutorial strategy of selecting cases that meet the criteria of “sufficient gravity” and identifying those “most responsible” for such crimes, Lubanga’s leadership position in the UPC (Union of Congolese Patriots) militia drew the attention of the Court. He was unexpectedly detained by the DRC in March 2005, transferred to The Hague a year later, and his trial started in January 2009. The ICC has charged three other warlords in the DRC situation. Germain Katanga and Mathieu Ngudjolo Chui are presently and jointly on trial for charges of war crimes and crimes against humanity. Bosco Ntaganda, accused of war crimes for child soldiers, remains at large.

Targeting Lubanga
The Lubanga case, given it was the first trial, exposed the ICC to a new barrage of skepticism and frustration among international observers and Congolese. There was some legal bungling that caused delays and threatened a trial dismissal and release of Lubanga. Legal scholars have expressed concern that this did not result in a more divided decision among the judges. But the more significant criticism focused on the justifications for the prosecutorial strategy and charges. Many, including the Chief Prosecutor, readily acknowledge that Lubanga is likely responsible for a broader array of crimes that go well beyond using child soldiers, specifically crimes against humanity including massacres, killing of peacekeepers, and sexual violence in Ituri. Ocampo contends, however, that at the time of Lubanga’s arrest the OTP only had enough evidence to proceed with these limited war crimes charges. A related concern is whether he is most responsible for the crimes he was charged with. One of the key arguments for the defense was that Lubanga was not in a position of command responsibility for the military affairs of the UPC, and thus cannot be held accountable for the use of child soldiers.

And what of other perpetrators in the DRC? There are bigger fish. Jason Stearns, author of Dancing in the Glory of Monsters, argues that Lubanga was a “convenient first case” because, while a key actor in the Ituri region, he was expendable to the Congolese and Ugandan militaries engaged in the region. The ICC has been criticized for strategically avoiding any serious investigation or charges for crimes committed under the authority of the DRC, Ugandan, or Rwandan governments for fear of the political fallout or losing their cooperation in ongoing cases. The OTP has made statements that it will not prosecute crimes on all sides simply for the sake of appearing balanced and the uses the gravity criteria to justify its selections – a justification that doesn’t hold up in the broader scope of crimes in the central African region.

Two other cases underscore that the political interests of the DRC government have been unintentionally safeguarded by the ICC. First, as Stearns also mentions, Jean Pierre Bemba was a significant source of opposition in the DRC and with broad public support – that is – until his arrest and transfer to the ICC for his crimes in the Central African Republic. While a justifiable target, Bemba’s arrest has affirmed perceptions among some Congolese that the Court is biased. Second, Ntaganda is still “at large” because he’s protected by the government and therefore “untouchable.” Indicted while still a bad guy warlord (aka “The Terminator”), his potential arrest has become a political problem now that he’s been co-opted by President Kabila into the military (as a commander) under the pre-text of ensuring stability. This article by Mac McClelland for Mother Jones details Ntaganda’s crimes, that go well beyond the use of child soldiers, and why he can enjoy impunity and dinner parties in Goma instead of a prison cell in The Hague. Lubanga’s trial evidence will play a role in any future trial of Ntaganda as he is a co-perpetrator of the same crimes, and was identified as such in the summary statement of the verdict.

Marc Bleasdale/VII (c) 2009

Deterrence Effects?
One possible positive outcome of Lubanga’s trial is the education and deterrence effects on using child soldiers, especially by warlords and non-state armed groups. Human Rights Watch reported, in Selling Justice Short, that the notoriety of Lubanga’s trial has made such individuals aware that using child soldiers is a war crime punishable the ICC. But beyond this, the case has also brought more attention to the instrumental victimization of child soldiers and potentially affected a shift from the use of child soldiers as common place to taboo among non-state armed groups, especially in the DRC. A programme advisor for REDRESS said in January 2011 that there’s “no doubt in eastern DRC about the fact that child soldiering is a crime. Previously people thought that children were doing military service that was somehow legitimized by the state of conflict.”

But broader deterrence effects in the DRC or to prevent atrocities more generally will not result from this case alone nor does it address, in any way, the underlying causes of violence in Ituri. A few lessons can be highlighted from the Lubanga trial if the ICC is to have such an impact. First, the Court needs to counter perceptions that it is unjustly selective in its prosecutions by ensuring that crimes on all sides of a conflict are duly investigated and persons “most responsible” indicted if warranted. Arguably, it has done a better job of this in the Kenya situation. It can also counter these perceptions by increasing its outreach activities – explaining not only the limits on the Court’s capacity and jurisdiction but also its selection of cases. Second, the ICC is not empowered with the capacity to really affect more “positive complementarity,” specifically local capacity building of the rule of law. But international justice advocacy, media attention and donor support can be more focused on ensuring that a broader range of perpetrators are addressed by fair mechanisms of accountability at the national and local level.

Despite the deterrence skepticism, this is a major milestone for the International Criminal Court and a significance contribution to fight against impunity for atrocities.

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KONY 2012: Bandwagon Empowerment

Invisible Children‘s “Kony 2012” campaign provides many of us professors with a unique opportunity to address and learn how students respond to such campaigns and engage with human rights issues. College is an opportunity for students to feel empowered by activism and knowledge that we partly provide, shape and encourage. We do have a responsibility to course correct this empowerment when the knowledge is incomplete or skewed and the call to action may be ineffective or counter-productive.

Invisible Children, founded and directed by youth inspired to help war-weary Northern Uganda, has made their advocacy bread and butter with young college students who donate to and participate in their campaign. “Kony 2012” encourage its supporters to buy an “action kit” of bracelets and posters to pressure primarily the U.S. government to further support efforts to arrest Joseph Kony, war criminal and leader of the Lord’s Resistance Army, with the assumption that he is the main impediment to peace in Northern Uganda. Putting aside IC’s flawed presentation of the conflict and its solutions, and the self-involved campaign film that profiles their own success at the expense of presenting the voices of Ugandans themselves, there is a fundamentally disturbing bandwagoning effect of empowerment taking hold. Among the stinging comments on this development is from the Wronging Rights bloggers, Kate Cronin-Furman and Amanda Taub, writing for The Atlantic:

“Invisible Children has turned the myopic worldview of the adolescent — ‘if I don’t know about it, then it doesn’t exist, but if I care about it, then it is the most important thing int he world’ –into a foreign policy prescription.”

If one were to course correct the bandwagoning empowerment, the following critiques of “Kony 2012” are most instructive.

First, advocacy can be ineffective or counter-productive. In this vein, many reference Rebecca Hamilton’s research in Fighting for Darfur as evidence of how celebrity and youth activism does not necessarily translate into solutions for complex political and humanitarian crises. Moreover, the assumption of “Kony 2012” is that if only the world knew it would not stand for such atrocities and impunity. Well, those that can affect change do know. The Ugandan government, in loose coordination with other central African governments, are militarily seeking to end the LRA, the U.S. has sent Special Forces assistance, and the ICC has issued arrest warrants for top LRA leaders. The policy change that IC advocates is no more precise than that these actors should worker hard at what they’re already doing.

Second, the campaign is rightly criticized for encouraging the “white savior” complex  – arrogantly empowering outsiders at the expense of acknowledging that those affected by violence have agency in peacemaking. Despite their good intentions, IC’s film is about them, not Uganda. Thankfully some media recognize the wave of criticism from Ugandan voices that see “Kony 2012” as poorly reflecting their lived reality and expectations for justice.

Finally, does the prescribed solution of taking out Kony achieve the outcome – wait – what is the expected outcome? Technically, Northern Uganda is relatively stable as the LRA and Kony have not been active there for six years. Is the outcome “justice” or “reconciliation” for Kony’s victims? The extent of the LRA’s perpetration of atrocities runs much deeper in Acholi communities than Kony himself and some even suggest that his further stigmatization or removal will hinder reconciliation. Notable Uganda scholar, Adam Branch, also argues that the “serious problems (Ugandans) face today have little to do with Kony.”

Back to the classroom. I addressed the issue in both of my classes, one of which is The Politics of International Justice so the students in this class already have a good understanding of the justice and peace issues in Northern Uganda. Most expressed the view that awareness raising is fundamentally good and well intentioned, but that they also had a uneasiness with the film’s presentation of the conflict and were skeptical of the advocacy approach and public response. Several students said that it was frustrating for them to see friends distributing it by social media, “liking” and “sharing,” when they doubted that their friends watched the whole film or truly understand the issue. Another said that he found the bandwagon effect to be as irritating as the self-righteousness of those who opposed it. Another said that she hoped it would at least encourage students to learn more about the conflict on their own, using “Kony 2012” as a starting point.

All of this points to the cynical conclusion that “Kony 2012” accomplishes little more than raising awareness, albeit of a narrow view, of the issue and gives a false sense of empowerment to those participating in the activism of social media, emailing politicians and celebrities, and buying action kits can change can affect the future of Northern Uganda. But as posters and bracelets begin to dot campuses it’s worth encouraging, not disempowering, student’s knowledge and activism with some humility.

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Syria: The Exile or Justice Ultimatum

Reuters

Marc Lynch’s policy brief for the Center for a New American Security, titled “Pressure Not War:” A Pragmatic and Principled Policy Towards Syria” raises a provocative possibility for ICC judicial intervention. Lynch argues that pressure should be put on Assad and his officials to either go into exile to allow for a political transition or risk facing war crimes charges at the ICC. In his own words:

“To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no sign of being willing to take a political deal, an in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice and permanent isolation.”

The war criminal accusation is already part of the diplomatic discourse on Assad. UN Human Rights chief Navi Pillay’s statements and a UN inquiry report’s assessments concur that war crimes and crimes against humanity have been committed in the Syria regime’s siege on civilians. (Hillary Clinton also sort of called Assad a war criminal – considered unhelpful by David Bosco.)

But as we all know, Syria is not a State Party to the Rome Statute and Russia and China would block a Security Council referral of the situation to the ICC. Putting this obstacle aside, the “exile or justice” ultimatum is a frustrating position to take. Despite the sub-title of this policy brief, this ultimatum is based on assumptions that are neither soundly pragmatic nor principled.

On pragmatics, the offer of exile can no longer be viewed by war criminals as a credible guarantee of impunity – and won’t by Assad and his regime officials. Recall Charles Taylor, who abdicated his Presidency in Liberia in 2003 when the Special Court for Sierra Leone unsealed an arrest warrant for him and he took the negotiated offer of exile in Nigeria. He was arrested and transferred to the SCSL three years later. Recall the Khmer Rouge, many of whom were guaranteed exile and impunity for decades by a sympathetic Cambodian government and a passive UN; several of them now face justice and their victims at the ECCC. Political and security climates that may permit impunity in the short term will inevitably shift in the long term.

On principle, ICC officials and human rights advocates consistently balk at suggestions that the Court’s investigations and arrest warrants, and justice in general, should be used as a bargaining chip in conflict resolution. They have argued as much in the Libya, Sudan, and Uganda situations – all of which are delicate sequencing of peace and justice scenarios. In line with my belief that the “principles vs. pragmatism” dichotomy is unhelpful, such advocates also make consequentialist arguments that impunity is likely to lead to a resurgence of violence and instability. Look to the ICC’s justifications for intervening in Cote d’Ivoire and Kenya as evidence of this causal argument.

All in, the ICC cannot be viewed as credible if it endorses such “exile or justice” ultimatums. Moreover, the developing bond between the Court and UN Security Council as co-defenders of justice and peace will be severed by such unjust political bargains.

(Note: Michael Scharf provides an interesting legal analysis of the exile option, comparing Hussein and Taylor. See, Scharf, Michael P. “Trading Justice for Peace: The contemporary law and policy debate” in Atrocities and International Accountability: Beyond transitional justice.” Hughes, Schabas, and Thakur (eds). 2007.

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The ICC and Kenya: In the Thick of Deterrence

Antony Njuguna / Nairobi

The big news out of the ICC today was the confirmation of charges against four of the “Ocampo Six” Kenyan elites accused of orchestrating and inciting the country’s post-election violence in 2007-2008. Ruto, Arap Sang, Muthaura and Kenyatta had their charges confirmed and are expected to appeal; charges against Kosgey and Ali were dismissed by the Court’s judges because of a lack of evidence.

The decision comes four years after the violence and almost two years after the investigation was opened by the Chief Prosecutor. In that sense it is an underwhelming “milestone” but it is nevertheless an important reminder of the potential significance of ICC justice for Kenyan politics and stability.

The Court is mindful of its impact on stability. In its summary statement today it expressed that

“The chamber is mindful of concerns regarding the precarious security situation in parts of the country. It is also attentive of its responsibility to maintain stability in Kenya, and to fulfill its duty vis-a-vis the protection of victims and witnesses….It is our utmost desire that the decisions issued by this Chamber today, bring peace to the people of the Republic of Kenya and prevent any sort of hostility.”

Stability concerns are related to the upcoming presidential election. Two of those now set to stand trial – Kenyatta and Ruto – have both expressed their intention to run in the election but it’s now unclear if that will be possible. But their rival ethnic and political factions are more likely to use domestic and international attempts to mete out justice as political engineering.

The International Crisis Group recently released an important briefing on these issues with several recommendation to the Court and Kenyan government:

“These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.”

With respect to views on the ground, two recent polls show relatively divided, but declining, support for the ICC among Kenyans and notably increasing concerns about the impact of trials on security.

The link between human rights prosecutions and specific and/or general deterrence has been hashed out by various notable academics (see Vinjamuri and Kim and Sikkink). But the Kenya situation will provide for an excellent test case of such deterrence claims for several reasons. First, there is strong and active local civil society support for the ICC. This increases the chance that future potential human rights violations will be monitored and evidence can be collected and thus make prosecutions more credible. Second, the Kenya situation came to the ICC at the initiation of the Prosecutor after years of stalling by the Kenyan government – this underscores the Court’s “court of last resort” moniker and that justice is possible in spite of politics. Third, those considered “most responsible” are high level political elites yet their domestic power has not prevented their trial. Of all the situations before the ICC, this will be the one to watch for deterrence effects.

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#Insurgency: Warring Over Somalia….On Twitter

Al-Shabaab, the Islamic insurgency wreaking havoc in Somali, appears to have joined Twitter. The @HSMPress (Harakat al-Shabaab al-Mujahideen press office) feed has a trickle of followers and posts today that offer some fighting words on the AU’s peacekeeping efforts and the Kenyan military intervention, and laud al-Shabaab’s cause and martyrs.

@HSMPress with the rising economic burden of operation Linda Nchi, the much-hyped #Kenyan invasion has faltered quite prematurely.

Reports are that Kenyan troops, who are retaliating for al-Shabaab’s cross-border incursions, have gained ground. But critics question the legitimacy of the intervention, are concerned about regional spillover, and warn that the foreign incursions of the both the AU and Kenya play into al-Shabaab’s propaganda. Kenya announced today that it will be integrating troops into the 9,000 strong AU forces in Mogadishu.

Not to be outdone, the Twitter propaganda machine has a Kenyan side.  A Kenyan military spokesman has a Twitter account under @MajorEChirChir and regularly tweets about impending and successful attacks on al-Shabaab under #OperationLindaNchi.

@MajorEChirChir #OperationLindaNchi KDF bombed 2 Al shabaab camps south of Afmadow town, killing several Al Shabaab & destroyed technical vehicles.

(There is also a Facebook page for the Operation, in case you feel inclined to “like” it).

Reports are that Kenyan troops, who are retaliating for al-Shabaab’s cross-border incursions, have gained ground. But critics question the legitimacy of the intervention, are concerned are regional spill-over, and warn that the foreign incursions of both the AU and Kenya play into al-Shabaab’s propaganda. Kenya announced today that it will integrating troops into the 9,000 strong AU forces in Mogadishu.

@MajorEChirChir and @HSMPress are not following each other…yet. As others have noted, to follow is not to endorse.

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Keeping Up With The International Criminal Court: The Realization of Judicial Intervention

The International Criminal Court would “wither and die” was once the prediction of John Bolton, former US Ambassador to the UN. It seems that is not the case. There has been a dizzying amount of activity surrounding the Court lately, much of which underscores that judicial intervention is becoming a mainstay of conflict resolution and peacebuilding.

Undoubtedly, the ICC will be the hot topic at your department’s holiday party ;) Here’s your cheat sheet so you can nerd out with everyone else. If you get stuck, just wryly remark that it depends on sovereignty, or complementarity, or selectivity. That’s always gold in international justice.

LIBYA: Saif al-Islam Gaddafi (and maybe al-Senussi?) was captured and the jockeying for who gets to conduct his trial began. Ocampo suggested on his recent visit to Tripoli that the Libyan court system might be capable of conducting a fair trial and that the ICC would provide assistance, not competition. But it’s not up to Ocampo. ICC judges will determine whether the Libyan court system is up to snuff. If a Libyan court does try Saif  this is an opportunity for the ICC to affect positive complementarity and help rebuild the rule of law in Libya. But there are valid concerns that Libya courts are not ready so soon into the post-authoritarian transition and after decades in which the courts were an instrument of repression. Louise Arbour, head of the International Crisis Group and former prosecutors at the ICTY and ICTR, explains the tensions of complementarity in this case and why international justice is often a measure of last resort.

SYRIA: The UN Human Rights Council has found that crimes against humanity, including murder, torture, and disappearances, have been perpetrated by Syrian security and military forces and that the death toll is at least 4,000. UNHCR chief, Navi Pillay, is urging the Security Council to refer the situation to the ICC. But the UNHCR’s December 2nd resolution condemning the violence did not explicitly ask for such a referral. Certainly a UNSC referral is warranted and would counter criticisms that judicial interventions are politicized and selective. But China and Russia would veto it so that’s a non-starter.


MEXICO: Human rights activists have petitioned the ICC to investigate and determine whether crimes against humanity have been committed in the context of the state’s “war on drugs.” Specifically, the petition alleges that President Calderon, a top drug cartel boss, and political and security officials are responsible for the murder, torture, and kidnapping of hundreds of civilians in a war that has killed 45,000. It will take a while before the ICC prosecutors can determine if the case meets the “sufficient gravity” criteria and if the crimes were “systemic” and “systemic” to warrant charges of crimes against humanity. Mexico is a State Party to the Rome Statute but the government immediately rejected the accusations and insists that the rule of law is respected and upheld in Mexico. Calderon has called the accusations “slander” and the government issued a statement saying “it categorically rejects that security policy could be considered an international crime.”

KENYA: A Kenyan high court judge issued an arrest warrant for President Bashir of Sudan. The Kenyan chapter of the International Commission of Jurists (and NGO) filed the request. Bashir has visited several States Parties to the Rome Statute, including Kenya in August, and was not arrested – a violation of States Parties’ obligations. The recent ruling prompted the Sudanese government to expel the Kenyan Ambassador and prompted criticisms that this was a political move by the ICJ to put pressure on the Kenyan government to cooperate with the “Ocampo Six” cases before the ICC. This is partially a score for Rome Statute compliance, but the Kenyan government plans to appeal the ruling. One very interesting aspect of the ICC-Kenya situation is the prominence of civil society actors pushing for accountability, and the growing rift with political elites.

COTE D’IVOIRE: The ICC unsealed an arrest warrant for former President Laurent Gbagbo on November 29th and he was promptly transferred from his house arrest to The Hague. This is the first head of state to appear before the Court as Gaddafi met a different kind of “justice” and Bashir is still enjoying his impunity. Gbagbo is accused of being an indirect co-perpetrator of crimes against humanity, committed in the context of Cote d’Ivoire’s post-election violence from December 2010-April 2011. Rival and current President Alassane Ouattara has long welcomed the ICC’s involvement and wants Gbagbo tried internationally. But the arrest still seemed sudden and dramatic – shocking Gbagbo’s supporters who were hoping for an amnesty-for-peace type deal. Gbagbo made his first appearance before the ICC judges today (Dec 5) and judges will announce on June 18, 2012 if the case will proceed to trial.

There are two things to watch for. First, the timing of the arrest appears political as Cote d’Ivoire has parliamentary elections coming up on December 11th and Gbagbo supporters have pledged to boycott the vote. Second, the arrest is stirring up accusations of victor’s justice. The ICC indicates that investigations are ongoing, that there will be more charges, and both sides are being investigated. But locally there’s pessimism that crimes committed on behalf or at the best of Ouattara’s forces will be prosecuted.

SUDAN: An arrest warrant was requested of ICC judges by the Chief Prosecutor on December 2nd for Sudan’s Defence Minister, Abdelrahim Mohamed Hussein, for war crimes and crimes against humanity committed in Darfur. At the time of the alleged crimes (August 2033-March 2003) Hussein was Interior Minister and representative in Darfur. Hussein is closely connected to two of the ICC’s other targets – Bashir and Harun. The request for an arrest warrant comes at a time when the crimes and victims in Darfur have fallen off the world’s radar and for a situation in which the Court has made the least progress.

And in a bizarre revelation, Time magazine reports that the ICC’s evidence against Hussein is partly derived from data from the Satellite Sentinal Project – the brain child of the celeb badvocacy efforts of George Clooney and John Prendergast of the Enough Project. See this NPR article for why the satellite project, Clooney, and Prendergast, are a little ridiculous.

CHIEF PROSECUTOR: Ocampo’s term is almost up (we’ll all miss the eyebrows and swagger) and, to no one’s surprise and much acclaim, Fatou Bensouda will be chosen as the new Chief Prosecutor of the ICC. (To be confirmed at the next meeting of the Assembly of States Parties on December 12th). Currently the Deputy Prosecutor, Bensouda comes from the Gambia and worked at the ICTR. It’s hoped that her leadership will mend ties between the Court and African political elites and the African Union. There’s also the expectation that the Court and its prosecutorial strategy will be more victim-focused.

And lastly, in the best possible example of make-believe international justice, a Malaysian tribunal “reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide, as a result of their roles in the Iraq War.” The verdict obviously doesn’t have much effect beyond shame and blame, but the tribunal will communicate its findings to the ICC and give a little wink/nudge to states to exercise their universal jurisdiction muscles.

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Doom and Gloom 101: Making Weak and Failed States Teachable

Nothing risks inviting cynicism and despair like teaching and learning about failed states. For the second year I’m teaching an upper level International Relations course titled “Weak and Failed States” in the Poli Sci Department at UMass Amherst. Much to the confusion of my students, I introduce the course by explaining that “weak and failed states” is a highly contested concept, driven more by policy agendas than empirical consistencies, and analytical re-conceptualized so many times over that it’s almost entirely useless. In other words, welcome to Political Science! But, as a catch-all concept it does manage to frame different types of governance challenges and threats and introduces students to case studies, like Haiti and DRC, that tend to fall off the radar for issues that matter in traditional IR. And surprisingly, the course went very well last year and so far, so good, this semester.

You can visit the course site here, which details the structure, topics, and reading material under the various tabs. (You’ll notice this is a course blog – a favorite tool of mine – but the tricky pedagogy of class blogging is a subject for another post.)

I’m writing this post to solicit ideas and provoke some dialogue on strategies for teaching this topic. I really have no problem with the doom and gloom, and certainly most students joke that my courses should come with anti-depressants in lieu of sanitizing the study of violence and poverty. I also try to make a considerable effort to emphasize areas of progress, productive policy responses, and give exposure to examples of local resilience in the midst of state failure. But analytically this a tough course topic several respects…

It covers a ridiculous range of topics and case studies that, on the surface, have little in common other than the assumption that contemporary international security and development challenges are linked to “failed” “governance.” The topics range from poverty and repression, to civil wars, to transnational threats of terrorism. The case studies include, Haiti, Zimbabwe, DRC, Sudan, Afghanistan, Pakistan, and Somalia.

The broad scope is not helped by the policy-scholarship divide on this concept. From a very critical perspective, the policy discourse is a “hypnotizing jargon” that disproportionately securitizes poverty and non-Western forms of governance. From a mainstream perspective, governance and economic indicators (like those in the Failed States Index) can be used to dissect and rank state failure and possibly reorient policy responses towards the worst of the worst. Many scholars, however, reject the securitizing discourse for its narrow focus on the nature of post-9/11 transnational threats and criticize conflated concepts and rankings for creating monolithic conflict prevention and state-building policies, citing numerous screw ups in Somalia, Afghanistan, Haiti, etc. They also rightly challenge the idea that “ungoverned spaces” exist, contending that the role of traditional authorities and governance structures should be seen as legitimate and incorporated into central state institutions. (Boege et al have a great analysis of “hybrid political orders” in this respect.)

Teaching and learning about failed states requires using analytical frameworks that are not exclusive to IR and/or Political Science. Ideally, this course would be a slick combination of IR, Comparative Politics, and a little non-Western Anthropology. For example, the first section on “Statehood and Causes of Collapse” draws on state-in-society approaches, the role of patrimonialism in pre- and post-colonial states, authoritarian leadership, etc. Explaining the dynamics of civil wars and warlordism requires frameworks and theories outside of IR as well. But terrorism, and especially the case studies of Afghanistan and Pakistan, certainly incorporates an IR perspective on causes of transnational threats and the final section on international responses helps situate weak and failed states within global security, development, and state-building agendas. Including a plurality of approaches and sub-fields is a must I’m not a jack of all trades.

I would welcome any comments, suggestions, and insights – particularly from those who have taught courses on similar topics or just want to tell me I’m a little nuts.

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Learn to Love Lawfare

Photo courtesy of Etsy. The perfect lawfare key chain!

Over at the Lawfare blog, Jack Goldsmith recently offered up a “mea culpa” on his changing views of the concept and practice of lawfare. I don’t want to address the specifics of that post, but this and the Libya situation got me thinking again that a non-pejorative conceptualization of lawfare needs to be put forward. Particularly in the context of the International Criminal Court. Stay tuned. But for now…

Charles Dunlap defends that his original conception of lawfare was meant to be a neutral one. But it has since been co-opted by various scholars and political actors as a pejorative accusation – meant to delegitimize those who abuse law for strategic purposes. There’s an important distinction to be made though between the understanding of lawfare as a strategic weapon of war versus a coercive alternative to war. Specifically, there is a normative gap between the pejorative conceptualization of lawfare in the realm of U.S. national security and as a “weapon of the weak” to constrain U.S. military power, and the multilateral realm of international criminal law where the lawfare of the ICC and other tribunals is viewed as a a benchmark of moral progress.

Certainly, this latter form of lawfare is both coercive and strategic, whether it’s arresting war criminals or threatening judicial intervention if human rights abuses are not curbed. Therefore, this use of lawfare is meant to prevent and end conflict, not provoke it, entrench it or restrain legitimate uses of military force. The combined use of judicial and military intervention, in the Former Yugoslavia, Sudan, Libya, and Cote d’Ivoire, etc., underscores this trend.

Among the few that have addressed this understanding of lawfare are those that participated on the international tribunals panel at a conference on lawfare at Case Western University School of Law a year ago. (I posted a brief summary of this conference here.) Discussion of the ICC was scant and the selected quotes below, from the subsequent special journal issue, demonstrate there’s little consensus on lawfare in this realm so far.

Justice Ogoola on the peace vs. justice nexus in Uganda:

“In many senses, lawfare is the opposite, indeed the very antithesis of warfare. Warfare is the ancient, primitive, and largely discredited mode of dispute resolution between nations and among peoples. Lawfare, on the other hand, has all the civilized undertones of letting the law fare well in the struggle to achieve peaceful resolution of disputes. If has the ring of due process, of the doctrine of the rule of law, and rule of reason – of the principles of fairness, equity, and justice in bringing a peaceful end to a  violent conflict.”

Robert Petit on political interference by the Cambodian government in the ECCC:

“If, however, we intend lawfare to equate to what is more traditionally viewed as political interference in the application of justice, then yes, lawfare is practiced in International Criminal Law.”

David Crane on the “take down” of elite perpetrators and Charles Taylor for the Special Court for Sierra Leone.

“The law is a powerful tool. Some say it can be used as a weapon. That power was used to bring down the most disruptive and evil warlord in Africa and his co-defendants not just by the stroke of a pen on March 3, 2003, but in the execution of two operations, Operation Justice and its follow-on Operation Rope.”
“The term – lawfare – has been viewed somewhat negatively and at best as a clever turn of a phrase. Used in the appropriate context it can be a force for good and positive change.”

David Scheffer on accusations against the legitimacy of the International Criminal Court:

“I plead guilty to being a major perpetrator of lawfare, on behalf of the U.S. Government, during the 1990s. My mission…was to use the power of the United States to build international and hybrid criminal tribunals that would subject the leaders of other nations and rebel movements engaged in warfare, including internal armed conflicts, to international criminal justice. I used the law aggressively and continuously and sometimes such actions served as at least a partial rationale for avoiding the use of American armed might or more political negotiations.”

“The commentariat believe that the ICC may be used by weak nations or by a rogue prosecutor to isolate and shame the United States. They fear that lawfare will prevent Washington from using its military power for just cause through the threat of investigation and prosecution of its often controversial policies and actions.”

There’s clearly room to interpret the ICC’s, or any international tribunals’, intervention in escalating conflict as a legitimate form of lawfare. Understandably, advocates of international justice will not want to associate such institutions with coercion, violence, and political strategy. But saving the concept as an alternative, not means, to war opens the door to a better understanding of the ICC’s potential role in conflict resolution.

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Crimes in and of Famine



If you find the argument that famine is man-made to be credible, then famine is not just an inevitable outcome of the structural conditions of “failed states” but rather it is purposeful, systematic, and systemic human rights abuse and therefore criminal.

Those who make the argument that the current famine in East Africa is man-made place more blame on political problems of restricted access, entitlements and aid management than the environmental factors of drought, overpopulation, and food scarcity. That Somalia has been hit harder by famine than neighboring Ethiopia and Kenya underscores this point. If famine is, at least predominantly, man-made than by extension there are individuals or groups responsible for causing the famine or exacerbating its effects of death and displacement. As Charles Kenny argues for Foreign Policy, “In order to ensure widespread death by starvation, a governing authority must make a conscious decision: it must actively exercise the power to take food from producers who need it or deny food assistance to victims.”

The debate is not new. For example, in Famine Crimes (1997) Alex de Waal addresses the “political roots of famine” in Africa and the subsequent failings of the “humanitarian international” as an “obstacle rather than aid to conquering famine.” (pxv) More specifically on the question of crimes and responsibility, he argues:

“For war crimes, the challenge is to deter those who cause them. The Geneva Conventions contain strong provisions prohibiting the use of starvation as a method of warfare. Criminalizing the infliction of famine requires a further step, namely enforcing the prohibitions by prosecuting those guilty of the crimes. This it to put famine into the category of offences requiring justice, and in particular war crimes.” (p6)

Certainly civilians living amidst violence and in poorly functioning states are likely to become food insecure and displaced. But is the present famine, the worst in sixty years, an international crime in and of itself? Both Sarah Pierce and Jens David Ohlin explain the factual case that, technically, the famine is neither a war crime nor a crime against humanity but make the normative argument that it should be. Specifically starvation is a war crime but only in international armed conflicts. And for the famine to constitute a crime against humanity there must be intent and knowledge of a plan to cause “great suffering, or serious injury to body or to mental and physical health” as part of a systemic and systematic attack on civilians. This is where the evidence is mixed and raises questions about determining intent and assigning responsibility to organizations and individuals. Those who breed corruption and war often to blame.

In Somalia, civilians are prevented from fleeing to areas, inside or outside its borders, to access food aid, medical assistance, and protection and aid agencies are deliberately obstructed from providing such assistance inside much of Somalia. Human Rights Watch just released a report, “You Don’t Know Who to Blame:” War Crimes in Somalia, accusing all warring factions in Somalia, particularly al-Shabaab but also government forces, of committing human rights violations and preventing access to aid. But most argue that the Islamic insurgency group, al-Shabaab, is primarily to blame. The report’s author told BBC that

“al-Shabaab carries out unrelenting daily repression and brutality in areas under its control, taxing the population for access to water, forcefully recruiting men so they cannot grow crops and restricting access to aid agencies…al-Shabaab must carry he burden of that responsibility for the way in which the fighting has led to human rights violations which have contributed to famine.”

Andrew Jillions, blogging at Justice in Conflict, also directly takes on the question of al-Shabaab’s responsibility or complicity in engineering the famine. And in Kenya too there is finger-pointing at political actors. One Kenyan activist claims “this is a governance drought. It is a situation caused by the government’s failure to plan…” and that big profits can be made from famine.

Whether those perpetrating violence and corruption have intentionally caused vs. exacerbated the famine in the commission of other abuses may matter more for identifying this as a crime and assigning responsibility, but on the ground the end result of either scenario is still increasing death and displacement with little allocation of responsibility.

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Impunity Gap: Syria



There is a near absence of calls for accountability in the international responses to the ongoing and escalating violence in Syria. Unlike in the Libya situation, where there was a swift UN Security Council Resolution mandating both the use of force and a referral to the International Criminal Court, influential states and human rights groups have yet to stand firm on either type of response for Syria. Is it simply premature or counter-productive to demand justice when violence has yet to cease? Or are the political and security implications of removing Assad greater than the risks of impunity?

There is some consensus that the scale and manner of the attacks by Syrian forces against civilian protestors constitute crimes against humanity and that President al-Assad is likely “most responsible” for such systematic violence. Estimates put the death toll between 1,600 and 2,000 so far. Comparable to other situations before the ICC, Syria would meet the “sufficient gravity” criteria that determine the selection of situations and cases by the Court’s Office of the Prosecutor and Pre-Trial Chambers. But the much less impartial political criteria that guide the referral of situations to the ICC by the Security Council are more strategic.

While the Security Council has condemned the violence and the US is calling for consensus on stronger measures, there appears to be little political will for an ICC referral. The US, UK, and France have been the strongest critics of the Syrian regime’s actions. China and Russia initially resisted endorsing UNSC interference but then supported the condemnations that were expressed in the Security Council’s first Resolution on August 3rd and are unlikely to block a future resolution. Moreover, the Arab world is now breaking ranks with Syria as many states, notably including Saudi Arabia, recalled their ambassadors and demanded Assad end the attacks.

The international diplomatic responses illustrate that most of the pressure is directed towards marginalizing Assad and his regime with sanctions, expressions of moral outrage, and encouraging an effective opposition in order to incapacitate and and delegitimize his leadership domestically. Accountability, responsibility, and justice are notably absent from the discourse and policies.

Even notable human rights groups are cautiously realistic about an ICC referral. While Amnesty International called for such action, the main thrust of its recommendations is for the UNSC to forego diplomacy and take stronger measures like an arms embargo and freezing the Syrian regime’s assets. Human Rights Watch makes similar recommendations, but stops short of calling for the ICC and instead presses for more cooperation with the OHCHR’s ongoing investigations and, short of Syrian cooperation, to establish an official Commission of Inquiry. David Bosco, blogging at The Multilateralist, questions HRW on whether it would support an ICC referral. Kenneth Roth responded: “Yes in principle, but as a practical matter it’s not realistically on the Security Council agenda yet….so we’re focusing on the accountability steps that currently are in play.”

But, in what amounts to little more than gossipy political intrigue at this stage, there are reports that an unknown Western government is “bankrolling” investigations into the crimes committed by the Syrian regime and ensuring they are credible enough to be put to use in an ICC trial. The fact-finding mission is being carried out by interviewing Syrian refugees in neighboring countries. See Mark Kersten’s post here, blogging at Justice in Conflict, on why this is a sketchy way to politicize and undermine the ICC.

The strategic imperative and lessons learned from the mess of simultaneously combining judicial and military intervention in Libya are undoubtedly undermining support for justice in the short term. Many fear the political and security implications of removing Assad via a negotiated exit or trial. He is a slick autocrat whose regime’s propaganda convinces citizens and foreigners that his rule keeps the pin in a bomb of potential sectarian violence and economic instability. For now the calls for accountability will remain isolated in diplomatic back channels and the blogosphere until politics and principle align for the Security Council.

(See also the first post in this series “Mind the Impunity Gaps” and “Impunity Gap: Sri Lanka“)

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Impunity Gap: Sri Lanka


(see first post in this series: Mind the Impunity Gaps)

There is increasing pressure for justice in Sri Lanka for crimes committed in the long civil war between the Government and secessionist Tamil Tigers (LTTE) and that ended in May 2009. While the Sri Lankan government has publicly pledged to ensure justice, there are legitimate concerns its current approach will not be genuine and sufficiently punitive, and will place the burden of guilt for war crimes and crimes against humanity on the LTTE while institutionalizing impunity for crimes committed by Government forces.

“Sri Lanka’s Killing Fields”
The airing of a documentary called “Sri Lanka’s Killing Fields” on UK’s Channel 4 sparked new interest and pressure. It has now been shown to wide acclaim at the UN in New York and Geneva and recently by human rights groups in Washington, DC. The footage is indeed shocking. It documents extrajudicial killings, torture, and sexual violence allegedly committed by Government forces against Tamil civilians. The documentary is available on YouTube.

The Sri Lankan government has reacted angrily to the footage and accompanying accusations; it also claims that portions of the film have been doctored or are misleading. A BBC Hardtalk interview with a Sri Lankan MP and adviser to the President is revealing with regard to the determination of the Government’s denial and rejection of international pressure to investigate its own crimes.

UN Probe Alleges Crimes Committed by “Both Sides”

A United Nations Panel of Experts released a report in April, 2011 stipulates there are credible allegations of war crimes and crimes against humanity committed by both sides in the final stages of the war (Sept 2009-May 2009). Crimes committed by the LTTE throughout the civil war are well known, including killings, forced displacement, use of child soldiers, etc. But crimes committed by Government forces have been less exposed.

The Panel’s notable allegations are as follows:

The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity….330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE….Most civilians in the final phases of the war were caused by Government shelling…..(p ii)

The Panel was also highly critical of the Government’s commitment to accountability thus far:

The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive presents a false dichotomy….The Government’s two-pronged notion of accountability, as explained to the Panel, focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result. The Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. (p iv)

The Government’s “Lessons Learnt and Reconciliation Commission” was described by the Panel as “deeply flawed.” (p v).

In response, the Sri Lankan Government vociferously rejects the prospect of international judicial intervention, argues the “report is based on patently biased material which is presented without verification,” and claims that reconciliation should come above all else. A commitment to reconciliation above prosecutions is a familiar refrain for governments wishing to disguise impunity for their own crimes (e.g. Indonesia, Rwanda, etc.)

The impartiality of investigations does not always translate into a balanced prosecutorial strategy. This will be a considerable challenge for international or national trials for Sri Lankan atrocities. International courts struggle to prosecute the winners of conflict, particularly because of a reluctance to create a moral equivalency of crimes on both sides, and if perpetrators are in positions of political power and prosecuting them could risk instability or a loss of cooperation. Impartial prosecutions in national trials are likely to be impossible in this case, owing in no small part to what the Panel calls the Sri Lankan government’s discourse of “triumphalism” over Tamils and “exclusionary policies” that prevent domestic victims’ groups from successfully exerting pressure on the government.

Prospects for Closing the Impunity Gap
Pressure from the UK and advocacy from human rights groups seems to be having no effect so far. Most of the pressure is on the UN Secretary-General because the Panel was commissioned by his office and with the purpose of advising him on further investigations and accountability. Victims and human rights groups are pressing him to take up the Panel’s clear recommendation to establish and official international commission of inquiry. Such a formal inquiry, as past experience has shown, would pressure the Sri Lankan government to genuinely investigate and hold war criminals accountable, and absent such a response would generate support for an international tribunal. If not an ad hoc or hybrid tribunal, a referral to the International Criminal Court would have to come from the Security Council as Sri Lanka is not a State Party to the Rome Statute. But China’s support for Sri Lanka and its autonomy in accountability makes this unlikely to happen. There is great risk that the Sri Lanka case will fall through the cracks.

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Mind the Impunity Gaps


This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.

An impunity gap can manifest itself in several ways:

  • There are no genuine international or national justice measures and/or there is a blanket amnesty.
  • There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
  • There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)

Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.

Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.

The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.

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Who Will Arrest Gaddafi? Not It!


On June 27th the International Criminal Court issued arrest warrants for Libyan leader Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and chief of military intelligence Abdualla Al-Senussi for:

crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

The judges believe there is “reasonable grounds” to attribute criminal responsibility to these three individuals for the deaths of (at least) hundreds of civilians during the protests. There are no allegations of the mass rapes Ocampo publicly suspected were being fueled by the distribution of Viagra, and human rights groups claim there is no evidence to support such claims yet. Ocampo indicated it’s possible that, upon further investigation, allegations of widespread sexual violence could be added to the charges.

So far there are a few issues related to the arrests warrants that are generating debate.

Skeptics of international justice claim that the ICC has complicated peace negotiations, that Gaddafi cannot be deterred, and therefore that the arrest warrants will leave him no option but to dig in his heels. For a typical articulation of this argument see Marc Thiessen’s post here – where he argues that the arrest warrants foreclose the possibility of Gaddafi’s vertical (voluntary) departure. Another variant of the skeptic position questions the timing of this judicial intervention, as Richard Falk criticizes here. He argues there is a political calculus behind the timing of the arrest warrant and essentially suggests that NATO and the ICC are colluding to wage lawfare (i’m not going to stoke the lawfare fire in this post).

Others, like Stewart M. Patrick at the Council on Foreign Relations, contend that these types of arguments present a false tradeoff of peace and justice. Human Rights Watch made a similar statement, which is consistent with their advocacy on international justice. David Scheffer makes the case at Foreign Policy to call of the missiles and send in special ops – to delink military and judicial intervention. Certainly there was never any indication that Gaddafi would negotiate and in that sense the ICC has a null effect. Realistic idealists (yeah – i just made that label up) would argue that no one expects Gaddafi to turn himself in or be deterred. But it is hoped that the ICC’s intervention will delegitimize his leadership and encourage and/or obligate other parties to arrest him. This is the real practical challenge….
States Parties to the Rome Statute are, of course, obligated to arrest Gaddafi if he enters their territory. President Bashir’s worldly travels tell that this option is unlikely. Ocampo’s statement made the most likely options for arrest very clear:

Libya has the primary responsibility to implement the arrest warrants. Libya is not a State Party of the Rome Statute, but it is a member of the United Nations since 1955. Libya has to comply with UN Security Resolution 1970…Gaddafi’s inner circle is the first option: they can be part of the problem and be prosecuted, or they can be part of the solution, work together and with other Libyans and stop the crimes.

Second option, the Interim National Council has expressed its will to implement the arrest warrants…International forces operating under UN Security Council Resolution 1973 have no specific mandate to implement arrest warrants and the Court is not asking for that…”

So there we have it. Except the rebel forces do not have the capacity and Gaddafi’s “inner circle” does not have any incentive (short of assured amnesties) to carry out these arrests. And while NATO diplomatically supports the arrest warrants, its mandate remains only to protect civilians and not to be contracted out as the ICC’s global police force. Maybe this will go the way it did for Gbagbo in Cote d’Ivoire, whereby the opposing rebel forces can grab Gaddafi with the logistical support of foreign forces and avoid a taboo form of regime change.

(Cross-posted at Global Transitional Justice)

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Visualizing the “Misery” of Failed States


Foreign Policy magazine has just released their yearly Failed States Index (“A Year in Misery: The 2011 Failed States Index”), which also includes their photo essay called “Postcards from Hell.”

This photo essay raises the ire of those who criticize it as “poverty porn.” This criticism is usually directed at aid organizations (see here and here) that exploit and misrepresent people’s poverty and insecurity through shocking images to generate support and fundraising. As the infamous article “How to Write About Africa” satirically prescribed:

Among your characters you must always include The Starving African, who wander the refugee camp nearly naked, and wait for the benevolence of the West. Her children have flies on their eyelids and pot bellies, and her breasts are flat and empty. She must look utterly helpless. She can have no past, no history; such diversions ruin the dramatic moment. Moans are good. She must never say anything herself in the dialogue except to speak of her (unspeakable) suffering.”

The FP photo essay plays into this too. Many of the photos portray those living in so-called failed states as helpless victims or maniacal militants. This is not to say that extreme conditions of repression, poverty, and violence are not prevalent in these states and it’s also important not to sanitize images just to protect our sensitivities. But the photos provide no context on the individual circumstances and strip those in them of their dignity. (See the photos of Haiti, Iraq, Kenya, Burma, CAR, especially). Nor do these pictures help us understand the causes and conditions of state failure and nor do they prescribe solutions. They simply invite shock and awe.


I teach a course on weak and failed states, and while I have the utmost respect for Foreign Policy magazine and assign their articles regularly, I don’t find much analytical value in this index. If anything, we spent most of the semester picking apart the index and pointing out the inconsistencies with scholarly analysis of failed states. And after delving more into individual case studies, my students were more critical of the generalizations and misrepresentations in the photo essay and articles. I’ll give you that teaching about failed states is tough – not least because there is no consensus definition – but the key challenge is to avoid attributing all the world’s ills (terrorism, civil war, poverty, transnational crime) to the amorphously defined “failed states.”

I intend to plow through the index and articles and will post more thoughts in upcoming posts.

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International Justice Scholars and Advocates: One Big Happy Principled Family?

David Bosco posted “The Case for Impunity” today on his Foreign Policy blog, The Multilateralist. The central issue in the post is whether the ICC’s intervention in Libya has prolonged the conflict, by taking away Gaddafi’s option to go into exile, and whether international justice can credibly deter war criminals. I nodded my way through the first few paragraphs, until I got to the end. Bosco makes a sweeping claim about “international justice advocates”:

“It’s a bit disconcerting that international justice advocates rarely acknowledge the possible downsides of international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there’s a messianic faith in the value of international justice. And that’s fine if the argument is essentially based on principle: justice is right, impunity is wrong, consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. They have an obligation to honestly confront some of the possible negative consequences.”

I don’t completely disagree, but these statements are goading.

First, who are we talking about here? Are advocates only NGOs and human rights activists, or are scholars also advocates? Whether you call it a “field,” “network,” or “epistemic community,” there’s some sort of community of NGOs, policy experts, scholars, etc. that has coalesced around this central issue of international or transitional justice. But we’re not all on the same page and the fissures are cross-cutting.

Of course, the likes of Human Rights Watch (HRW) and the International Center for Transitional Justice (ICTJ) fall more in the principles camp. See HRW’s Selling Justice Short report, which counters arguments that justice has negative consequences for peace. Also, see the ICTJ’s recent short video on “Peace vs. Justice: A False Dilemma” (and my response to it here).

But we can’t ignore local level advocacy. Take civil society actors in Northern Uganda and Kenya. In Uganda, local religious organizations and human rights advocates have been highly skeptical of the ICC as it arguably has entrenched conflict by removing incentives for the LRA to negotiate. In contrast, Kenya’s strong civil society has been actively supporting the ICC and has pressured both the Court and national political elites for trials of the “Ocampo Six,” arguing that without such trials violence could resume around the next presidential election.

The United Nations, the central policy and negotiating forum for international justice, discursively promotes that peace and justice are mutually reinforcing, but in practice (and thanks to Security Council politics) takes an ad hoc and selective approach that belies any consistent commitment to principles or consequences.

In terms of scholarship, the principles vs. consequences dichotomy has mirrored the justice vs. peace dichotomy and overlaps with arguments about deterrence effects. For example, the scholarship of Jack Snyder and Leslie Vinjamuri (see here and here) is illustrative of the consequentialist side, and the work of Kathryn Sikkink and others who argue there is a “justice cascade”(see here, here, and here) is illustrative of the principles side. The few that make the case that international justice can deter, such as Payam Akahvan, do so arguing that if we commit to justice in principle it will have the desired consequences of preventing and ending conflict. But certainly these and other international justice scholars have shown empirical evidence that actors pursue, or not pursue, justice for both principled and consequentialist reasons.

Second, the potential negative consequences that advocates should confront need not be conflated with instability writ large. The when, where, and how of international justice can have a variety of perverse and unintended consequences. For example, international trials can displace or delegitimize local judicial processes and actors, reinforce collective guilt and innocence (if both sides are not held accountable), forestall reconciliation (if low-level perpetrators are not held accountable), and reinforce perceptions of judicial colonialism.

So we’re not one big happy principled family.

(cross-posted at Global Transitional Justice)

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Notorious BIG Fish: Mladic and Munyagishari

The capture of Ratko Mladic and his pending transfer to the International Criminal Tribunal for the Former Yugoslavia (ICTY) has become another boon for international justice in a year where war criminals seem to be dropping like flies. But there’s an interesting debate to be had over whether this arrest signals a stronger commitment to end impunity on principle or its combined success with political and pragmatic imperatives. Of course, it’s both. Kenneth Roth of Human Rights Watch argues that the international community’s “principled pressure for justice” worked with Serbia – and the pressure came from conditioning Serbia’s EU accession on Mladic’s arrest. Similarly, Geert-Jan Knoops argues that Serbia’s action to finally arrest him was based on “political and economic motivations” – irrespective of the international community’s more normative appeals for holding Mladic accountable.

And hidden amongst the media and diplomatic excitement over Mladic was the important news about the arrest of Bernard Munyagishari by Congolese authorities in the DRC. Munyagishari is wanted by the International Criminal Tribunal for Rwanda (ICTR) for genocide and crimes against humanity committed in the 1994 genocide. He is alleged to have been the leader of the Interahamwe (an extremist youth militia) in the Gisenyi region of western Rwanda, responsible for training Interahamwe and ordering mass killings and rapes. There is little controversy over his arrest – it’s a victory for both the ICTR and the Rwandan government. Of course, there’s a pragmatic element at play here too. The presence of many former genocidaires in the Kivus in the DRC (Munyagishari was arrested in North Kivu) has been a significant source of insecurity and been used to justify Rwanda’s military engagement in the region. Impunity and conflict are intricately linked in this region.

That there are pragmatic reasons for and benefits to arresting war criminals, however, does not undermine the apparent trend of a principled commitment to end impunity. They’re often, but not always, mutually reinforcing.

Beyond the Big Fish….
In accordance with their mandates, the ICTR and ICTY have been successful in trying a broad swath of those considered “most responsible” for core crimes (such as Milosevic, Karadzic, etc. for ICTY and Bagosora, recently Bizimungu, etc. for ICTR). The ICTR has completed 46 judgments (including 8 acquittals) and 9 fugitives remain at large. The ICTY has completed 77 judgments (including 13 acquittals) and only one fugitive remains at large (Hadzic).

Apprehending the “big fish” is an important but not sole measure of success for international tribunals. It’s essential to look beyond indictments and arrests to the impact of trials on truth and reconciliation – the murkier and loftier goals of transitional justice that we can’t really measure. The trials of Mladic and Munyagishari will contribute to the already well established historical records of the systematic and systemic nature of atrocities. In both cases, their crimes are already well known and their guilt almost certain (especially for Mladic, as some of those operating under his command have already been tried and convicted). Just as important, their trials may help counter denial and individualize guilt – both necessary to combat Serb ultra-nationalist support for those like Mladic and what remains of political and military Hutu extremism in the DRC.

The impact of trials on reconciliation, however, deserves a healthy dose of skepticism. An EU representative made a statement that the arrest “will bring down barriers to reconciliation in Bosnia-Herzegovina.” This may be possible at a national or regional level – whereby reconciliation between those victimized by the Srebrenica genocide and the Serbian government would be thin without Mladic’s arrest.

In Rwanda, despite the ICTR’s mandate reference to reconciliation, the local population is largely dismissive and indifferent to the ICTR. The elite perpetrators that appear in its courtrooms are less well known to Rwandans and the process is physically and culturally remote to them (as compared to the trials in the local Gacaca courts). While many applaud Munyagishari’s arrest, it’s worth waiting to see whether his victims in Gisenyi consider this a meaningful form of justice.

(cross-posted at Global Transitional Justice)

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