Monday’s post about why the International Criminal Court should hold off on an arrest warrant for al-Bashir left out a couple of interesting details: last Thursday, the New York Times reported that a warrant had already been issued, an announcement the ICC immediately refuted.
Practicing for the real thing? Accident? What do you guys think?
Hat tip: Kate Cronin-Furman at Wronging Rights
Why the UN Security Council should stop the ICC’s efforts to indict al-Bashir
The International Criminal Court’s recent fumbled attempt to try Congolese rebel leader Thomas Lubanga Dyilo is the latest addition to a series of reasons why an ICC indictment of Sudanese president Omar Hassan Ahmad al-Bashir would be unwise.
Lubanga’s trial, which began last month after nearly three years of delays, was marred by incompetent handling of its first witness: a former child soldier who withdrew his testimony before the end of the first day, saying he had never served in Lubanga’s army and claiming that a humanitarian aid organization had told him what to say.
The witness had been promised that his identity would be kept a secret, but he took the stand in full view of those in the courtroom, including Lubanga. After he changed his story, it emerged that pre-trial judges had prevented the prosecution from witness proofing, a two-part process where lawyers can walk witnesses through the courtroom before the trial and explain procedure, and where witnesses can practice answering questions and can re-read their own prior testimonies to refresh their memories. Though different countries have different policies on witness proofing, the international criminal tribunals for both the former Yugoslavia and Rwanda and the Special Court for Sierra Leone all chose to allow it, citing its ability to prevent incidents like the one in the Hague last month.
Things are even messier in Sudan, where the ICC announced last July that it is considering indicting al-Bashir on charges of genocide, crimes against humanity and war crimes – a double first for the court, which has neither indicted a sitting head of state nor charged anyone with genocide. Moreno-Ocampo would like to charge al-Bashir with more than 300,000 deaths in Darfur and the internal displacement of nearly three million Sudanese citizens. He claims that the president ordered both Sudanese armed forces and the Janjaweed militia to attack and destroy villages belonging to three separate ethnic groups in Darfur.
What’s happening in Darfur is despicable, and al-Bashir is undoubtedly responsible – if not for instigating the violence, at least for his failure to attempt to stop it. At the same time, the ICC’s charges, if passed (a decision is expected in November), will carry little weight. Sudan has signed but not ratified the Rome Statute, the act that created the court. This means the country is not legally bound to follow any ICC directives, raising the question of who, exactly, will waltz into Khartoum and slap handcuffs on al-Bashir. When news of the potential arrest warrant broke in July of last year, the deputy foreign minister of South Africa — a country whose post-apartheid Truth and Reconciliation Commission has been praised for its success — admitted that al-Bashir would likely never be arrested and said a warrant would not help bring peace to Darfur.
Even if al-Bashir’s arrest were probable, it would not be immediate, giving him ample time to retaliate against Darfur, something both experts and aid workers in Darfur say is likely. The day after the ICC announced its intentions to investigate al-Bashir, anti-Western riots took place in Khartoum and Darfur. It’s not unthinkable that, were the indictment to become a reality, Sudan might shut its doors to international aid organizations whose presence is still desperately needed in Darfur.
The ICC has a history of missteps in Africa. Its 2005 indictments – the court’s first – of five leaders of the Lord’s Resistance Army, a Ugandan rebel group infamous for child abduction and extreme brutality, are widely blamed for disrupting the peace process in Uganda. LRA leader Joseph Kony reportedly walked out of negotiations with the Ugandan government upon learning of the warrants, and the group, which had eased its attacks in Uganda, has since launched a renewed offensive that included the massacre of nearly 1000 Congolese civilians last December.
In 2007, Ugandan president Yoweri Museveni asked the court to suspend the indictments in favor of a local justice process, hoping to encourage Kony to sign a peace agreement. Chief Prosecutor Luis Moreno-Ocampo refused, and Kony is still in hiding as his troops pillage their way through northeastern Congo.
Article 16 of the Rome Statute gives the UN Security Council the power to put the ICC’s decision on hold indefinitely for any reason. Both the African Union and the Organisation of the Islamic Conference have pressured the Security Council to invoke the article, provided al-Bashir agrees to make a good faith effort toward peace in Darfur. Suspending the prosecution, if only temporarily, would avoid increased bloodshed and would allow the ICC to work through its trial issues with Lubanga before embarking on yet another case. If the ICC’s handling of the Uganda and Democratic Republic of the Congo cases are any indication of the court’s ability to carry out their mandate in the best interests of African conflicts’ victims, the Security Council should comply.
Crossposted on The Morningside Post and The Huffington Post (albeit with a disappointing typo in the title)
I spent yesterday morning collaborating with the tireless John Liebhardt, the multitalented Elia Varela Serra and a handful of other Global Voices authors on a global round-up of bloggers’ reactions to the International Criminal Court’s recommendation that Sudanese president Omar Hassan al-Bashir be indicted on multiple counts of genocide, war crimes and crimes against humanity. Now that I’ve read through other bloggers’ reactions, I’m ready to add my own thoughts.
Warning: this is the worst kind of blog post, born of a late-night argument that no one won, the self-serving kind that blames and complains without offering any solutions. It’s been one of those days.
I have a love-hate relationship with the ICC that’s mostly hate (caveat: it’s so easy to criticize, sitting here on my couch with my coffee). It sounds great in (surface-level) theory: an international tribunal established to prosecute criminals of the worst sort. It’s noble. It appears to fulfill the world’s moral responsibility to victims of large-scale evil. It’s an attempt to atone for the Holocaust, Rwanda, the Balkans and all those other times we said “Never Again.” The ICC does all it can under its mandate, and it works hard to identify the worst human rights abuses in the world and find enough evidence to support a case against them. In practice, though…eeesh.
When the ICC issued arrest warrants for Lord’s Resistance Army leader Joseph Kony and four of his top commanders in July 2005…nothing happened. Well, two of them died, but I don’t think that’s related. Kony demanded immunity, President Museveni backpedaled like crazy and human rights activists in northern Uganda labeled the warrants an obstacle to peace. Three years later, negotiations are still stalled, Kony and his two remaining commanders are still in the bush, and despite the headlines every once in a while claiming peace is imminent, the LRA and the government aren’t any closer to signing an agreement than they were five (or ten) years ago.
Is what’s happening in Darfur despicable? Absolutely. Is al-Bashir responsible? Without question. But what purpose are the ICC’s charges going to serve? As I said in the Global Voices round-up, Sudan has signed but not ratified the Rome Statue, the treaty that created the ICC. This means they’re not legally bound to follow any ICC directives, so who, exactly, is going to waltz into Khartoum and slap handcuffs on al-Bashir? And if someone does, who’s going to govern Sudan while he’s sitting in The Hague? The likelihood is that any move the ICC makes is going to make al-Bashir even more angry, and that anger will probably be taken out in Darfur.
So what can we do? At the risk of sounding like a Kaplanite, I don’t know if there’s anything we can do. If anyone feels up to writing a rebuttal, à la this guest post in response to my earlier, misinformed rant about the Juba peace talks, please do. I’d love to be corrected by someone who has a much better knowledge of the workings of the ICC and the situation in Sudan.
Update: For an elegant, researched critique of the International Criminal Court in Africa, check out “Africa’s unjust deserts” by Stephanie Nolen, writing for The Globe and Mail.
My next piece, co-written with John Liebhardt, is up at Global Voices Online:
Bloggers from around the world are reacting to the International Criminal Court’s recent decision to charge Sudanese President Omar Hassan al-Bashir with multiple counts of genocide, war crimes and crimes against humanity. Many of those bloggers are criticizing the indictments, claiming they are difficult to enforce and that they will bring more unrest to an already unstable nation.
Featured in this round-up are Too Huge World, Sudanese Thinker, Sudan Watch, Emmanuel Abalo, Codrin Arsene, Nairobi Notebook, The Angry African, Victor Ngeny, Chris Blattman, Ugandabeat, Gay Uganda, Making Sense of Darfur, Daniel Sturgis and Ali Alarabi.
My good friend Jared crafted such a knowledgeable, reasoned response to my earlier post about prospects for peace in northern Uganda that I’m going post the whole thing here and call him a guest blogger:
I agree with much of what Jackfruity wrote, as well as 27th Comrade’s ideas that reconciliation is likely a more effective way of addressing communal needs and building a holistic, regional peace. However, I have four comments regarding Jackfruity’s and Comrade’s ideas regarding: the ICC as a player; traditional vs. western justice; lack of UPDF indictments; and what can be done by Ugandans to regain their voice in the process.
1. Comrade and Jackfruity, and many many others, hold an underlying assumption that the ICC is a player like the GoU or LRA. This assumption leads to the common notion that the ICC can simply pull out in the interest of peace, if it so pleased. The issue I take is that this assumption is false. The ICC is *not* another player; rather, it is a legal institution that is bound by a very strict mandate, the Rome Statute, signed by 100+ countries, including Uganda. The ICC, ICC Judges, and Prosecutor Moreno-Ocampo do not have the legal ability to start or stop cases at their whim, as a political institution might (as any government could start a war). The closest the ICC comes to being a political institution is when it is referred to a case through a UN Security Council Resolution (Article 13, as in Darfur), which of course is *not the ICC’s decision* but that of political actors. The ICC has very little discretion in how it acts, and in the case of Uganda, it consistently exercised that discretion to provide as much room and backing for the peace process (another discussion we can leave for another time).
It seems to me that it would be more helpful not to question the ICC’s motives as a player, but rather to understand its mandate and how to work within it. In other words, how can Uganda utilize the complementarity regime, which states that the ICC complements local systems and only acts when those systems are unwilling or unable to do so? Understand the ICC rules, look for the interests of the actors (GoU, LRA, etc.) then find creative options. There are plenty out there.
2. The larger question question of “traditional” vs. “western” justice is, of course, a major one in an ongoing academic discussion. Practically, though, it is an issue that can be addressed by establishing traditional methods within the legal framework of the state. Again, the ICC is a legally-ratified institution, bound to its mandate. This mandate cuts both ways, of course: if the GoU can legalize and implement genuine national proceedings that utilize traditional justice methods, then the ICC must respect it. The ICC must act upon its mandate as it is a court, not a political player.
3. Jackfruity also commented on the lack of UPDF indictments, something which many cite as evidence of the ICC’s bias in favor of the GoU. I disagree with her suggestion that the “government will never give up its precious military men to the ICC.” This comment insinuates either a) M7 has a say in who the ICC indicts (patently false) or b) the ICC takes into account the practicality of arrest when making indictments (also false, as shown by indictments against the LRA and the Sudanese official re: Darfur).
Again, I would refer to the Rome Statute, the ICC’s mandate, which addresses the crimes within the court’s jurisdiction (Article 5). This has consistently been interpreted strictly, that the ICC will only pursue those most responsible for the *gravest* crimes. Essentially, what this means is that the ICC is not pursuing crimes that are really bad, but the worst of the worst. During investigations in Uganda, ICC investigated the claims of UPDF crimes. Their conclusion? UPDF crimes occurred. HOWEVER, both the number and gravity of these crimes paled in comparison to that of the LRA. If the ICC were to indict UPDF for these crimes, they would be setting a very dangerous precedent of significantly lowering the threshold for indictable crimes (and going against the mandate, of course). The ICC was created as a court of last resort to address the gravest crimes, not a court to address all crimes committed. The UPDF undoubtedly committed crimes, and they ought to be brought to justice. However, these crimes are not anywhere near as grave as those committed by the LRA, and the crimes fall outside the legally-binding mandate of the ICC.
4. Finally, a comment about what can be done. Many Ugandans are pissed off, and rightfully so. As the grass beneath two fighting elephants, they are trampled without any say in the process. Without the ability to choose, without the real ability to act, it is easy to feel helpless. The ICC involvement has exacerbated that sentiment, of course, seemingly thrusting itself upon the situation without allowing the people any say in the matter. In other words, many Ugandans feel they have no autonomy, no ability to make decisions about the situation.
So what can be done? I would suggest that Ugandans search for ways to empower their decision-making abilities regarding the situation, to find ways in which they can bolster their voice and power in the decision-making process. One strong option, as I described above, is to utilize the complementarity regime of the ICC. The ICC can only act when the government is unable, or unwilling, to hold genuine national proceedings: this is a three-part test that Ugandans can utilize to bring justice back into their own hands. Create a local framework that a) is genuine, i.e. not a sham; b) the government can undertake; and c) the government *will* undertake. I can envision a special law enacted in Parliament that creates a hybrid framework incorporating traditional and punitive justice. Show it’s genuine, show the parties are willing to accept it and go through with it, and the ICC will not have jurisdiction any longer.
You want to regain your decision-making power? Great, it can happen. Understand the rules, understand the interests of the parties involved, and create a system reflects that situation. Then go and do it – I’m all for it!
He’s definitely reshaped my ideas about the ICC, as well as given me hope for the peace process.
