Tag: kenya

International Institutions Mobilize Opponents Too

Members of international institutions typically honor their commitments. But that does not, by itself, tell us much. States are unlikely to join institutions that require them to do things they have no intention of doing. Indeed, some argue that institutions merely act to screen out those least likely to comply. Others, however, have argued that institutions do in fact constrain states – that they are not mere epiphenomena. One prominent mechanism through which institutions are thought to alter state behavior is by mobilizing pro-compliance groups domestically. Institutions may lack enforcement capable, after all, but few governments are entirely insensitive to domestic pressure.

But, as Stephen Chaudoin cogently observes in this working paper, those who stand to lose if the government adopts the institution’s preferred policy are unlikely to give in without a fight. And such groups virtually always exist; if they did not there’d be little need for institutions to promote cooperation in the first place. Put differently, while WTO rulings may raise awareness about the effects of tariffs and Amnesty International might draw attention to human rights abuses, the net effect of such efforts might simply be to increase the amount of effort those advantaged by the status quo invest in defending it.

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What Terrorist Attacks Don’t Tell Us

This past week, terrorists struck Westgate Mall in Nairobi. Al Shabaab, a Somali Islamist organization, claimed responsibility. Frustratingly, we still know very little about the attackers, their origins, or the Kenyan security forces’ response. And the news about the last just keeps getting worse.

But there has been some analysis of the attacks – by both journalists and academics. In one of the most widely-circulated pieces, Somalia specialist Ken Menkhaus suggested that the attacks were a sign of desperation, the last gasp of an organization that had run out of an intra-Somalia game (also, here and here). Another strand of argument suggests that the growing ascendancy of a single Al Shabaab leader, Abdul Abdi Godane, has pushed the organization toward Al Qaeda, toward international jihad, toward further attacks on soft targets abroad (here and here and here). The presumption is, again, that we’re at a critical juncture for Al Shabaab, a moment of inflection at which the organization changes its character and its aims. See my AU colleague Joe Young’s piece at Political Violence @ a Glance for a roundup of some of this.

In this post, I’m going to make some empirical quibbley points about Somalia, and then I’m going to make a couple of substantive points about terrorism / COIN analysis in general. So if you’re not terribly interested in Somalia, you still might want to skip to the end.

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Kenya: Can Technology Safeguard Elections?

Kenya VotePolls in Kenya closed 16 hours ago, but votes continue to be counted.  Those familiar with Kenya and with the electoral crisis of 2007-2008 will know to distrust provisional results.  In December 2007, challenger Raila Odinga seemed substantially ahead during much of the early voting, only to see that lead evaporate as returns came in from more remote districts. Despite this qualification, it does look increasingly likely that Uhuru Kenyatta will gain the presidency in the first round of voting.*  In the past two weeks, there was some speculation that Kenyatta might struggle to meet new requirements for national distribution of the vote, but he’s already achieved the 25% votes bar in 32 counties. Kenyatta is currently under indictment by the International Criminal Court for his involvement in the 2008 post-election violence; if elected, he would be the first democratically elected leader to go on trial at The Hague.

I want to make one quick note before turning off the Twitter feed and going to bed.  The Kenyan Independent Electoral and Boundaries Commission (IEBC) gambled big with technology this election.  The newly created IEBC instituted biometric voter registration, electronic voter rolls, and electronic transmission of polling station results via cellular network.  It is likely that the slow pace of processing BVID accounted for some of the enormous lines during the first half of the day.  After numerous problems, the IEBC eventually instructed polling agents to abandon the electronic voter roll in favor of the manual roll.  Nor has the count proceeded without hitches. There were nail-biting moments earlier tonight, when a server failure and insufficient hard disk space caused the electronic transmission of results to IEBC to halt for several hours.

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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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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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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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Not Such a Happy New Year…

… for those burned to death inside a church in Kenya yesterday. The victims were members of the Kikuyu tribe, whose ruling party is suspected of having rigged the recent election; the mob that doused the church with gasoline and set it alight was mostly Kalenjins, Luhyas and Luos, the ethnic group of the party dominated by the opposition, who is contesting the electoral results.

Genocide Watch has released a genocide alert for Kenya in the face of the mounting violence:

“Ethnic massacres are an indicator that the risk of genocide in Kenya has risen to Stage 6, the Preparation stage. Kenya has not yet descended into actual genocide. However, the next stage in the process is actual genocide, and Kenya is close to that stage.

Genocide can be bilateral, with perpetrators from two (or more) groups killing members of other groups because of their ethnic identity. Burundi had such bilateral genocide from 1993 – 1995.

Genocide Watch makes the following recommendations:

1. No country should recognize or congratulate President Kibaki for his “re-election” until the results are confirmed by independent election inquiries.

2. Mr. Odinga should publically denounce violence against Kikuyus, and President Kibaki should forbid violence against Luos and other ethnic groups.

3. President Kibaki and Mr. Odinga should declare their willingness to abide by the decision of an independent election inquiry commission whose members are named by both men, including trusted leaders from other African countries.

4. Both President Kibaki and Mr. Odinga should refrain from holding mass rallies, and should firmly forbid their supporters from joining criminal militias that are murdering and looting. Members of such militias should be arrested quickly and tried for their crimes.

5. Religious and civil society groups in Kenya should vigorously oppose the violence and protect people who are targeted because of their ethnic identity.

6. The African Union should begin immediate planning to send well equipped police forces to Kenya to quell the ethnic rioting there. The United Nations should condemn the violence and financially support African Union efforts to mediate the dispute and prevent further violence.”

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