Annotation of
“Case Closed: A Prosecutor Without Borders” by Julie Flint and Alex de Waal. World Affairs. Spring 2009.
In their extensive assessment of the International Criminal Court (ICC), and specifically its Prosecutor Luis Moreno Ocampo, researchers Julie Flint and Alex de Waal detail the multitude of striking problems facing the once promising global institution.
“[The ICC] promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics.”
According to Flint and de Waal, little progress has been made in achieving justice under the mandate of the ICC. Despite hopeful rhetoric from UN officials, the last six years have witnessed meager progress in prosecuting offenders such as Thomas Lubanga Dyilo, a Congolese militia leader, and perhaps most importantly, Omar al-Bashir, President of Sudan. Significantly, as illustrated by in-depth commentaries from Office of the Prosecutor (OTP) staff, Moreno Ocampo has routinely undermined the progress of the Court through his rash decision making. Moreover, in his position as Prosecutor, Moreno Ocampo has focused on creating a “sexy court” that for many critics is based on public opinion rather than justice for victims.
“Lawyers and investigators who served in the OTP, and who count among the brightest and the best in their profession, say they believe the Court’s reputation, and perhaps even its life, is at risk.”
Citing organizational and management problems under Moreno Ocampo, countless ICC Office of the Prosecutor staff have left the institution, and many blame Moreno Ocampo for its limited success. Additionally, some high level UN officials fear that if left to his own devices, Moreno Ocampo will continue to undermine the progress of the ICC, and more specifically, its promise of achieving international justice and accountability. For Flint and de Waal, it is necessary for the international community to reassess the role of Moreno Ocampo as Prosecutor in order to best position the ICC to be able to exercise its mandate and address the violent conflicts and pressing human rights violations witnessed across the globe.
These issues and others are considered in this month’s Roundtable.
Monday, May 4, 2009
Editor's Introduction - May 2009
Case Posed: But Can the Prosecution Rest?
by Charli Carpenter, University of Massachusetts-Amherst
“Many other international organizations have had rocky starts only to emerge down the line, with some tinkering, as powerful forces for good…”
Julie Flint and Alex de Waal have published a damning article about the ICC prosecutor Luis Moreno Ocampo which reads, by extension, as a trouncing of the entire institution. I’m not in the loop with the court’s day-to-day politics well enough to offer an informed counter-argument, so instead, by way of playing devil’s advocate, let me agree for argument’s sake with a number of the authors’ claims, hyperbolic and partisan though they sound at places, and then (again for argument’s sake), push back on the assumptions the authors make about the implications of those claims.
1) Let us assume that Moreno-Ocampo erred, as has been ably described, in failing to launch a full-scale investigation of the atrocities in Darfur. But why single out Darfur as uniquely deserving such an investigation? After all, ten to twenty times as many people have died in Democratic Republic of the Congo—the country whose conflict yielded the first indictee to be tried by the court, Thomas Lubanga Dyilo.
2) Let us assume that the indictment of President Omar Bashir and Joseph Kony by the court are, as Flint and de Waal say, toothless acts that only undermine peace processes on the continent. At worst, are the authors not accusing the ICC simply of upholding its mandate to prosecute the law? From a policy perspective, the authors are absolutely right. But the ICC is not a political institution; it is a judicial institution. By issuing indictments that can only be realized through third party state action, the ICC is refusing to become politicized, refusing to serve as a substitute for political action, and is passing the buck back to governments in whose hands, ultimately, the enforcement of international law lies.
3) Let us assume that Flint and de Waal have accurately depicted the Chief Prosecutor of the ICC as a hopelessly abrasive, procedurally obtuse, and personally corrupt individual whose behavior has undermined morale at the ICC. Must it therefore follow that his conduct has damaged the ICC’s legitimacy beyond repair? I doubt it. Given that prickly, self-important curmudgeons abound in leadership positions of international institutions, it’s hard to for me to see the sort of broad implications of this that the authors describe. Should Moreno Ocampo be replaced, if this picture is accurate? Probably. Would the court function more smoothly, would the ICC staff be happier with a more charismatic, able figurehead? Certainly. But will the court’s legitimacy as an institution be dependent on this? I’m not so sure. Many other international organizations have had rocky starts only to emerge down the line, with some tinkering, as powerful forces for good—the defunct League of Nations and its successor come to mind. Judges at the ICTY routinely fell asleep on the job, and those in Arusha were known to laugh at rape victims, but these institutions with all their flaws managed to bring justice to many (including landmark convictions for sexual violence) and will be remembered by most as significant steps on the road to greater accountability for war crimes. It remains to be seen how States Parties will react to the excesses of Moreno Ocampa during the 2010 Review Conference of the Rome Statute. Let us not, however, throw out the baby with the bathwater.
Charli Carpenter is an Assistant Professor of Political Science at University of Massachusetts-Amherst. Her teaching and research interests include national security ethics, the laws of war, transnational advocacy networks, gender and political violence, war crimes, comparative genocide studies, humanitarian affairs and the role of information technology in human security. She is the author of Innocent Women and Children: Gender, Norms and the Protection of Civilians, and the editor of Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zone. Dr. Carpenter blogs about international politics at Duck of Minerva and about asymmetric warfare at Complex Terrain Lab.
The International Criminal Court
by Mark Gibney, University of North Carolina-Asheville
“The ICC certainly can play an important role in the protection of human rights, but it is essential to recognize the limitations that the Court has been placed under.”
I believe I speak for many when I say that the International Criminal Court (ICC) has not been anywhere near the institution that it was anticipated as being, and the latest manifestation of the ICC’s shortcomings is the humanitarian disaster that has ensued after the Court issued an arrest warrant against Sudanese President Bashir. Since no other UN action is anticipated, all that remains is to count the ever-growing number of Sudanese deaths that will result from what now appears to be a purely symbolic act that was all-too predictable.
Yet, the problems with the ICC go much further and much deeper than this. Certainly, a large part of the blame rests with the Prosecutor Luis Moreno Ocampo. There is every reason to believe that the careful and analytical lawyer that had been advertised was in so many ways anything but the truth. However, even with the perfect prosecutor in office, it is by no means clear that the ICC could be doing much better than it has. But perhaps this was the intended result all along.
The biggest problem is the canyon-like gap between a world rife with human rights violations and a Court that really has not achieved much of anything—but more importantly, it has given every indication to the world that it does not have the slightest interest in doing so. As poorly thought out as it was, the Bashir incident at least served as a reminder to the generation that had such high hopes for this institution that the ICC actually still exists. However, the real fear is that after serving this notice that it intends to be a “player,” the ICC will retreat back into its deep slumber mode—meanwhile, violence continues unabated, and those responsible are never held accountable for their actions.
The ICC certainly can play an important role in the protection of human rights, but it is essential to recognize the limitations that the Court has been placed under. The problem in a nutshell is that the Court was promoted as providing Salvation (of sorts)—but then given no police force, slight Security Council support, and an ineffective and seemingly megalomaniacal Prosecutor. This seems to be a recipe either for pure disaster or total inertia. Take your pick.
But rather than simply piling on Moreno Ocampo or the ICC itself, perhaps some broader lessons can be learned. One of these is that the creation of the ICC truly has served to whet the world’s appetite for accountability. Before this, it was rather readily assumed that this was simply not in the realm of the possible. To its credit, the ICC has changed our thinking on this matter, even if it has not come anywhere close to delivering on these expectations.
But the ICC’s greatest contribution might come in understanding and accepting the reality that it will be hard pressed to ever make a great contribution. Rather than shoving aside (whether intentionally or not) other possible actors and avenues, the ICC should actively promote, assist and nurture state and regional efforts at establishing accountability in the form of money, expertise, evidence, and so on. In addition, the Court should view the proposal by the Special Rapporteur on Torture (Manfred Nowak) for the creation of a World Court of Human Rights as a complement and not a competitor.
This humbling but important work will never occur so long as the ICC presents itself as it does. For sure, prosecuting a relatively small number of high-level political operatives could help make an enormous difference. No institution is as well placed to do this as the ICC, and let us hope that the body is able to achieve some success at some point toward this end.
But there is more that the Court could and should be doing. The comparison that is always made is with the Nuremberg proceedings. But what is easy to forget are the other proceedings in Germany, later in time and certainly less visible and less known, but which had a more profound effect on the German state and its people. To my mind, then, one of the legacies of Nuremberg concerns the limits of Nuremberg-like proceedings and the need to adopt a battery of strategies intended to establish accountability that are much closer to the victims themselves. The ICC would do well to acknowledge and to learn from this lesson.
Mark Gibney is the Belk Distinguished Professor at the University of North Carolina-Asheville. His most recent book publications include International Human Rights Law: Returning to Universal Principles (Rowman & Littlefield, 2008) and the edited volume The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, 2007). He also has two forthcoming books. The first (with Sabine Carey and Steve Poe) is The Politics of Human Rights (Cambridge) and the second is an edited volume (with Sigrun Skogly) Human Rights and Extraterritorial Obligations (University of Pennsylvania Press).
Character Assassination in the Court of Public Opinion
by Tyler Moselle, Harvard University
“To what extent is the ICC relevant in the context of human rights and international ‘justice’ juxtaposed with the hard realism of political treaties and negotiations?”
Alex de Waal and Julie Flint employ character assassination on Luis Moreno Ocampo in their World Affairs article “Case Closed: A Prosecutor Without Borders.” Ironically, they are guilty of the same crime they accuse Ocampo of: being overly occupied with the court of public opinion. Or perhaps, that is the only court they as Sudan specialists, and Ocampo as the ICC’s first Prosecutor, have recourse to when attempting to right the wrongs of injustice.
De Waal and Flint view Ocampo’s indictment of Sudanese President Omar al-Bashir as poorly conceived and damaging to humanitarian missions and negotiations. Then they work backward from this central argument to characterize Ocampo as obsessed with the public spotlight, inept in matters of legal detail and argument, micromanaging, and potentially morally repugnant (noting specifically: rape charges and pursuing wealth as a lawyer for odd client combinations).
They present their argument in the opposite format however, arriving at the Bashir indictment as the zenith of Ocampo’s misdeeds. What do they use as evidence for their overall critique? They quote former ICC staff members, compare his presentations and numbers with other organizations and datasets, and use interviews with individuals previously associated with his activities as a lawyer in Argentina (as the Catholic Priest case demonstrates).
What is the indictment of de Waal and Flint? As their title suggests, it is an air-tight verdict of “case closed” that Ocampo is not the right man for the job.
But do the authors, in their desire to support a long-term and sustained commitment to Sudan’s peace process which supposedly excludes “sexy” spotlight antics, come to paradoxically endanger an institution that should be supported? Do not de Waal and Flint undermine human rights sensibilities by assassinating the character of Ocampo, just as they similarly critique Ocampo for doing to al-Bashir? Are they not indicting a man, and the something of the institution he represents, with shoddy evidence?
De Waal and Flint argue that Ocampo should not have indicted al-Bashir because it may make him more resistant to international negotiations and peace treaties and thus erode prospects for long-term solutions in Sudan and perhaps even threaten the ICC itself. Simultaneously, de Waal and Flint indict Ocampo which may make him more resistant to changing the way he approaches his position as Prosecutor of the ICC.
This argument makes me more skeptical of their core concern which is latently present but never articulated: indictments of heads of State and other internationally prominent individuals, and perhaps even the ICC itself in practice though not theory, are not useful if one wishes to pursue a “humanitarian agenda.” In fact, the globe-trotting, flashy lawyer spotlight of the ICC may be harmful to a true humanitarian agenda.
What core evidence do the authors present for their position? None. They have a tentative hypothesis which they try to slip in under the guise of assassinating Ocampo’s reputation. They present no solid evidence that Ocampo’s indictment of al-Bashir has had serious deleterious effects on the humanitarian crisis in Sudan. Perhaps they should have spent more time performing serious research and collecting serious data to prove their claim just as they criticize Ocampo for failing to pay attention to details in preparing for cases.
The authors believe in theory the ICC should survive—only with a more competent and savvy Prosecutor. But in the meantime, they certainly throw a wet blanket on those who applaud the effort of the ICC, through Ocampo, to live up to its inspiring origins and for the first time, indict a head of State who has presided over a…Civil War?
The article induced me to think of three questions which need to be answered: 1) To what extent is the ICC relevant in the context of human rights and international “justice” juxtaposed with the hard realism of political treaties and negotiations?; 2) How can the ICC adequately indict heads of state for egregious crimes and what types of evidence have been used most successfully in other similar circumstances?; and 3) If de Waal and Flint do not think Ocampo is fit for the ICC Prosecutor position, who is and why? How do we know they are qualified? How will they use the office of the ICC?
Until we are able to answer those basic questions, debate over the ICC’s role may remain an unresolved verdict.
Tyler Moselle is a Research Associate at Harvard Kennedy School’s Carr Center for Human Rights Policy.
Adjudication for the Adjudicators?
by Rebecca Otis, University of Denver
“This is a tremendously exciting and ambitious time for the UN in the creation of new legal interpretations and precedents for the fair governance of the global community.”
Coming from the perspective of one who roundly agrees with Kofi Annan that the creation of the International Criminal Court was “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law,” it is deeply troubling to read reports of corruption within the body of the UN. Julie Flint and Alex de Waal’s piece this month judiciously exposes yet another facet of questionable activities, namely at the heart of the ICC. Flint and de Waal’s piece quickly deepens into a long list of allegations against the personal behavior and professional misconduct of the ICC’s Lead Prosecutor, Luis Moreno Ocampo. Without a doubt, the unveiling of evidence against Ocampo is yet another testament to way the way in which certain UN officials appear to act according to a personal and highly subjective set of rules, which are often in contradiction to the fundamental mission of the UN.
More broadly, Flint and Waal’s piece casts light on questions concerning UN accountability and issues of impunity. Recently allegations of sex abuse and other crimes of misconduct by UN peacekeepers in eastern Congo come to mind. As recently as this month, the Cambodian Khmer Rouge trials are similarly plagued with allegations of corruption among the tribunal staff. These and other issues of misconduct have dogged UN operations since 1948, causing much of the world to disdain the organization founded upon the principle of universal governance and protection of human rights.
Of course, despite the criticisms of isolated UN personnel such as Ocampo, Flint and Waal also go to great lengths to demonstrate that the founding of the ICC was necessary as a baseline for the establishment a universal framework for adjudicating crimes against humanity. They add that the Court “promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics.” Similarly, Kofi Annan reflected that the establishment of the ICC meant that no single individual, however powerful, could operate above the law. Despite its infancy, the ICC has become a revolutionary place of accountability, attracting the best and brightest legal minds to forge a new path in the art and application of this new area of adjudication. The presumption is that the UN attracts deeply committed lawyers, who believe in upholding and fostering the normative foundations upon which the UN was established. Yet what happens to the sanctity of the ICC when one of its own, no less the Lead Prosecutor himself, allegedly behaves as if the rules of his own court do not apply to him?
In response, I would say that this is a tremendously exciting and ambitious time for the UN in the creation of new legal interpretations and precedents for the fair governance of the global community. That said, it would seem obvious (if not unfortunately overdue) that the UN go to great lengths to hold its adjudicators to the same standards as it holds those who commit crimes against humanity. In this case, they are one in the same.
International Criminal Justice Must Not Only Be Done, It Must Be Seen To Be Done
by Rhona Smith, Northumbria University
“Questions including what is the role of the International Criminal Court (ICC) in administering justice, what is seen to be happening, and is justice actually being done, are appropriate.”
“[U]ntil a time in which the global governance structure is not reliant on states, humanity will continue to fail in its attempt to protect global human rights” (Eric Leonard, June 2008 Roundtable). Discourse across a range of disciplines (e.g. Roundtable comments by Landman in October 2008, and Thomson-Jensen and co-panellists in May 2007), irrespective of the methods of evaluation, conclude that the existing system of “human rights protection” fails those whose rights are heinously violated: millions die annually as a direct result of violations of basic human rights (food, clean water, adequate health); gross and systematic violations of human rights within certain states fail to attract international criticism; perpetrators go unpunished. The International Criminal Court (albeit reliant on states) was initially hailed as providing a “voice” for those whose lives have been decimated by systematic violations of human rights, establishing a fair mechanism for dispensing international justice, though as Flint and de Waal explain, it seems itself to be courting controversy and undermining the very concept of justice on which it was founded. While arguably in its early days, questions including what is the role of the International Criminal Court (ICC) in administering justice, what is seen to be happening, and is justice actually being done, are appropriate.
The preamble to the Rome Statute of the International Criminal Court emphasizes that contracting states are “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” This encapsulates a traditional concept of justice—attribution of guilt and holding the perpetrator to account for her/his crimes—and is an integral step towards post-conflict reconciliation and nation-rebuilding. Although technically the International Criminal Court’s jurisdiction is derived purely from the Rome Statute, the crimes listed therein generally attract universal jurisdiction and can be tried any (and every) where: national courts (e.g. Iraq, Indonesia); ad hoc international bodies (Rwanda and the former Yugoslavia, Sierra Leone); and hybrid bodies (e.g. Cambodia). International criminal justice is thus not the exclusive domain of the ICC. Rather the ICC acts in situations where the state is unwilling or unable to effect adequate prosecution and those situations referred by the international community (Article 17 Rome Statute). The role of the ICC is made clear in the Statute, but what is happening now?
To date, as no trials have been completed, evaluations can only be made on preliminary and procedural stages. At the ICC, although in reality the Prosecutor enjoys considerable autonomy in decision-making, as a construct, the role has long been criticized by many commentators (e.g. see the 2001 essays on universal jurisdiction and the ICC by Kissinger and Roth in Foreign Affairs) including Flint and de Waal’s cogent indictment of the public and private persona of Ocampo. Indisputably the ICC, including its prosecutor, must uphold the highest standards of judicial integrity and process to ensure justice is adequately served. While in law Ocampo has been exonerated, whether justice is served by the continuing whirl of rumors, anecdotes and indeed resignations is debatable.
Focussing on Ocampo’s professional decisions, who to prosecute and on what grounds is not purely a legal question; they are decisions broaching difficult legal, political, economical and moral issues. Central to the rule of law is the right to a fair trial; the decision who to subject to that trial rests primarily with the ICC prosecutor. Such decisions must be correct in law though arguably also acceptable to the states to whom the ICC is answerable (raising the spectre of state interference as alluded to at the beginning of this comment). Initially focussed on pursuing those highest up the command structure, Thomas Lubanga was an unusual first choice, selected by default rather than design, from an all-too-crowded global “rogue’s gallery.” Indicting President al-Bashir responds partly to political and popular demands, rather than pure law (evidentiary issues abound). Although mere indictments do not serve justice, they are an indication of the possible direction justice may take and provide ready fodder for detractors arguing the futility of international justice.
The ICC is not a political body which works with rhetoric alone; rather it is a court of law applying internationally agreed-upon standards. It will be judged on the basis of the trials it conducts, its rigor of process and the quality of its decisions. No international court should be beyond reproach, but while politics cannot be dissociated, every effort must be made to attain the highest standards possible to maintain legal credibility (and garner political respect). The old adage is prescient, “it is insufficient that justice is done, it must be seen to be done”—to date, unfortunately, little justice is being seen to be done by the ICC.
Rhona K.M. Smith is Professor of International Human Rights at Northumbria University, Newcastle, UK. She is also the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI) Visiting Professor in Human Rights at Peking University Law School, Beijing University, PR China. She has authored various texts on International Human Rights Law and worked on human rights education capacity building projects particularly in China and Indonesia through RWI and the Norwegian Centre for Human Rights. She has taught human rights at universities in Canada, China, England and Scotland.
The Prosecutor of the ICC: Too Political, Not Political Enough, or Both?
“The prosecutorial strategy—in terms of situations and individual cases, and in terms of timing of crucial steps and engagement with peace negotiations—illustrate an approach that is both highly political and strangely blind to its political impact.”
Much of the criticism of the behavior of the prosecutor of the International Criminal Court, Luis Moreno-Ocampo, revolves around two apparently contradictory criticisms, although both may well be true: that he is too political, and that he is not political, or politically savvy, enough. Certainly, his rush to pursue high-profile indictments, contemporaneous with his pursuit of the “low-hanging fruit” (supposedly easy cases such as that of Thomas Lubanga Dyilo), suggest a prosecutor with sharp political instincts and a recognition of the need for a new institution to have a few “quick wins.” Yet, simultaneously, his blundering approach with respect to investigations and prosecutions arising from Darfur, and insistence in the context of the debates over the appropriateness of pursuing indictments of leaders of the Lord’s Resistance Army during active peace negotiations that his job was a legal one, rather than a political one, suggests the opposite. It appears that he willfully seeks to avoid, not politics, but rather an open acknowledgement of the political impact of his actions. His decision to announce investigations into crimes in northern Uganda alongside the President of Uganda, notwithstanding allegations of abuses by the country’s army, may have heightened the perception of his politicization and apparently intentional ignorance of his political effects. In this, he is very much political and politicized, and his attempt to insist on his purely legal role is, not surprisingly, unconvincing, whether to international NGOs or his own legal staff. Certainly, the mishandling of evidence in the Lubanga case suggests a failure of attention to legal detail in an attempt to complete a first prosecution, and rightly caused Human Rights Watch and others to raise concerns.
At the core of the criticisms, I would argue, is prosecutorial strategy and case selection, including both choices about where to investigate and where not to investigate. And at issue is not only the apparent pursuit, albeit in a clumsy fashion, of high-profile defendants such as Sudanese President Omar al-Bashir and relative small-fry Lubanga, in an apparent desire for cheap or quick wins and high-profile (if apparently doomed) indictments. Under scrutiny also is a strategy that has involved, to date, formal investigations and prosecutions only in Africa, generating the criticism in some quarters that it has become an “International Criminal Court for Africa.” These concerns may well be overstated, particularly given the high percentage of African states which have ratified the statute of the ICC and the number of countries on the continent currently in or emerging from conflicts in which crimes under the jurisdiction of the court have taken place. And thus leaders in Africa, a continent where many countries embraced the Court quite early on, have become suspicious. While, of course, such leaders may be suspicious of the court because they themselves bear responsibility for crimes falling within the Court’s jurisdiction, they nonetheless united in a 2008 request by the Peace and Security Council of the African Union to the UN Security Council for a deferral of ICC activities in Sudan out of concern that “a prosecution might not be in the interests of justice.” Thus, one concern is that a prosecutor both concerned with political impact and oblivious to it has chosen to pursue his aims only in Africa.
This is not to say that the prosecutor has not looked into situations elsewhere, and indeed the Office of the Prosecutor has issued public statements as to why it chose not to take up cases regarding abuses in places such as Iraq and Venezuela. The legal rationales offered in each were solid, but given the political controversies surrounding the prosecutor and the all-Africa caseload of the court, skeptics may remain unconvinced. The prosecutor has continued to monitor the situation in Colombia, undertaking several visits to the country, but has been far less vocal about the possibility of opening formal investigations there, much less the possibility of indicting state officials. While comparisons across very different types of conflict are unfair, the relatively muted approach of the prosecutor is noteworthy. In a rare official public statement on a non-African situation, the office of the prosecutor issued a two-sentence statement on Georgia in 2008, simply stating that it was a state party to the statute of the Court and that the Court considers all information pertaining to crimes within its jurisdiction. This is notable in comparison to the public statements indicating the willingness of the prosecutor to pursue investigations into post-election violence in Kenya if local or hybrid investigations do not go forward, which have been far more forceful. Two other situations which public statements by the office of the prosecutor indicate are “under examination”—Palestine and Afghanistan—have not been the subject of comparable public scrutiny, and indeed reference to examination of them can only be found in public documents from the office of the prosecutor at the end of a press release on Kenya investigations.
None of this is to suggest that the cases which are underway are not significant, or indeed that there should be an unconsidered rush to prosecute non-African defendants just for the sake of having done so. Rather, it is to suggest that the prosecutorial strategy—in terms of situations and individual cases, and in terms of timing of crucial steps and engagement with peace negotiations—illustrate an approach that is both highly political and strangely blind to its political impact.
Chandra Lekha Sriram is Professor of Human Rights in the University of East London School of Law and founder and director of the Centre on Human Rights in Conflict. She is author and co-editor of various books and journal articles on international relations, international law, human rights and conflict prevention and peace-building, including most recently a monograph Peace as Governance: Power-Sharing, Armed Groups, and Contemporary Peace Negotiations (2008); a textbook (co-authored with Olga Martin-Ortega and Johanna Herman) War, Conflict, and Human Rights: Theory and Practice (2009); (co-edited with John King, Julie Mertus, Olga Martin-Ortega, and Johanna Herman) Surviving Field Research: Working in Violent and Difficult Situations (2009); and (co-edited with Suren Pillay) Peace vs Justice? The Dilemma of Transitional Justice in Africa (2009).
Monday, December 8, 2008
Editor's Introduction - December 2008
An Annotation
The ongoing conflict in the Darfur region of Sudan has been illustrative of the need for improved international diplomacy in conflict resolution and peace building. In an account of his experiences traveling in Darfur with academic and diplomat Alex de Waal, author Nick McDonell raises compelling questions about the role of traditional diplomacy in creating lasting peace. For McDonell, the establishment of lasting peace in the region demands recognition of the complex realities on the ground. Specifically, McDonell writes that the numerous obstacles to the peace process, such as natural resource depletion, ethnic strife, and competing political rivalries, must be addressed.
“Issue-awareness campaigns may draw attention to important causes, but they can also motivate counterproductive demands among warring factions.”
For McDonell, traditional diplomacy has not been effective in securing peace and stability in the region. According to the international community, the arrest warrant request for Omar Hassan al-Bashir by the International Criminal Court (ICC) in July marked a significant turn of events for perceived perpetrators of the conflict. However, as McDonell discusses, de Waal asserts that the need for the international community to hold Bashir responsible for acts of genocide and crimes against humanity is detrimental to the fragile peace that has been made. Since July, de Waal has been outspoken about the adverse effects of unintended consequences that may have drastic and deadly repercussions on the ground in Darfur, and that the ICC warrant “will endanger the people we wish to defend.”
“[Alex de Waal’s] primary argument was that a threatened Bashir could do much to damage the already fragile peace, and that the ICC had no ability to back up its threat with an actual arrest or trial.”
The delicate peace among warring ethnic and political factions within government and among rebel groups cannot be sustained indefinitely. Importantly, there are various challenges to peace in the region such as determining who has the authority to make an agreement, defining who exactly the janjaweed are, and deciding how justice should be achieved, all of which must be addressed if peace is to be secured for all. McDonell, as a former student of de Waal, suggests that in order for lasting peace to be established in Darfur, conventional forms of international diplomacy that seek to place blame and accountability for crimes committed must look to the complex situation on the ground. However, the points raised by McDonell and de Waal speak more generally about the need for improved and diverse forms of international diplomacy in conflict resolution and peace building. Moreover, as McDonell emphasizes, peace processes and the establishment of lasting peace is not simplistic. The establishment of peace in Darfur, and in future violent conflicts, must address the reality of the welfare and safety of those on the ground in addition to ensuring justice and accountability for crimes committed.
These issues and others are considered in this month’s Roundtable.
Peace without Justice, or Justice without Peace?
by Clair Apodaca, Florida International University
"Seeking justice by ending the impunity for crimes and seeking redress for the victims is the only way to build a stable long-lasting peace. Such justice allows for social reconciliation, restoration and perhaps forgiveness."
Peace without justice is an illusion. The use of the International Criminal Court (ICC) to investigate and prosecute human rights violations not only provides restorative justice for those harmed by the wrongdoing but also retributive justice towards the perpetrators. Restorative justice seeks to help heal the wounds of the victims and community by acknowledging and witnessing the pain and suffering of the victim. Retributive justice seeks to punish the offenders. The hope is that retribution will deter or prevent future acts of violence by holding perpetrators accountable for the violations of human rights, genocide, war crimes, and crimes against humanity. Many people believe that the path to justice is through criminal prosecution of the offenders. McDonell succinctly summarizes the relationship between restorative and retributive justice when he describes the victim’s viewpoint as follows: “if peace comes, and I know the person who killed my brother, raped my sister, killed my mother, how can I live with this person?” Seeking justice by ending the impunity for crimes and seeking redress for the victims is the only way to build a stable long-lasting peace. Such justice allows for social reconciliation, restoration and perhaps forgiveness.
However, a question remains. When should the process of retributive justice begin? Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, submitted an application for an arrest warrant for Sudanese President Omar Hassan al-Bashir before the Sudanese situation could even be characterized as post-conflict. The Comprehensive Peace Agreement, signed in 2005, is a fragile truce at best. Because Bashir can expect to be prosecuted once peace is established or when/if he leaves power, the likelihood that Bashir will turn over power to more moderate and restrained leaders is very low. Furthermore, the early issuance of the arrest warrant would make it in Bashir’s interests to see to it that the conflict and the killings continue. Will the ICC risk future carnage in order to make a forceful, yet premature, gesture of justice? If the arrest warrant is issued it may well be that the civilian population will suffer Bashir’s scorn and contempt. The Sudanese Congress already warned of the unleashing of more blood and violence in the Darfur region of Sudan if the warrant is issued. The Sudanese military and government supporters may retaliate directing their attacks against the international staff and facilities, namely the UNMIS and UNAMID. Or we may see the expulsion of humanitarian aid organizations altogether, the very lifeline for the millions of desperate and vulnerable internally displaced Dafuris—those most in need of aid and protection. Thus, the possibility of any restorative or retributive justice is greatly hindered by a lack of a negotiated and stable peace agreement.
On the other hand, in the interests of justice, the international community cannot allow the genocidal leadership in Sudan to threaten the tenuous peace prospects in order to escape prosecution for their crimes. To do so would betray the victims of Darfur. Furthermore, this would send the message to future tyrants that ignoring international law has no consequences. Therefore, I am not convinced that, in the words of Sadiqu al-Mahdi as quoted by McDonell, in the “conflict between accountability and stability… [avoiding a trial is] a case of accepting the lesser evil.” It may be the choice of exiled leaders wishing to regain power. But can we be sure that it is also the choice of the Darfuri victims who lost loved ones, had their human dignity stolen, their bodies abused, and are deprived of their homes and livelihoods? In the debate between which comes first between justice or peace, the ultimate determination ought to be the people of Darfur. Certainly, the issue should not be decided by international humanitarian “experts” such as de Waal who took it upon himself to notify Bashir’s regime of the impending announcement of Moreno-Ocampo’s application for the arrest warrant. Perhaps Moreno-Ocampo should issue a warrant for hindering prosecution too.
Luis Moreno-Ocampo may have put the cart before the horse. Pursuing justice before a stable peace is established can threaten the survival of the victimized population, and endanger humanitarian aid workers and peacekeepers. David Rieff of the New York Times wrote: “to secure a peace in Darfur means negotiating with Bashir rather than fantasizing about arresting, trying and imprisoning him.” It may be that the Darfuri population values peace and stability over justice. However, in the end, without justice there will be no lasting peace. It is unlikely that Darfur will find peace if Sudan remains governed by a regime bent on committing war crimes, crimes against humanity and genocide. This leaves human rights advocates, political leaders and international lawyers with a Catch-22: without justice there will be no peace but there can be no justice without first securing peace.
Clair Apodaca is an Associate Professor in the Department of Politics and International Relations at Florida International University. Dr. Apodaca has published extensively in the areas the international protection of human rights, women’s human rights and refugee studies. She is the author of Understanding U.S. Human Rights Policy: A Paradoxical Legacy (Routledge 2006). Her work has appeared in the Journal of Human Rights, International Studies Quarterly and Human Rights Quarterly among many others. In recognition of her scholarship in the field, human rights scholars and practitioners elected her to the first Executive Committee for Human Rights at the American Political Science Association (APSA) in 2001. Presently, Dr. Apodaca serves on the Executive Committee for Human Rights Section of the International Studies Association.
Human Rights or Inhuman Wrongs
by Edward Friedman, University of Wisconsin-Madison
"More is at stake in this debate than the fate of millions of innocents in Darfur, though that would be more than enough. The deeper issue is whether the universal human rights agenda in general will even survive, let alone flourish. But should promoters of human rights surrender or struggle?"
The project of promoting universally recognized human rights, that is, the commitments of the U.N. General Assembly-ratified Universal Declaration of Human Rights (UDHR), is in danger. Military and political intervention, including economic sanctions, to stop genocide and ethnic and other political mass murder is under attack. Apparently the lessons of Hitler’s holocaust, the Turkish genocide of Armenians, Pol Pot’s slaughter of innocents, and the loss of life in Rwanda are being rethought and un-taught. So-called peace is now preferred over prevention. The dead may have died in vain.
Ethnic struggles (actually political struggles in which demagogues mobilize haters utilizing social stereotypes) are found to be too complex—Jews and Germans, Armenians and Turks, Khmer Rouge and non-KR, Hutu and Tutsi—who can sort it out? It is better to do nothing, it is claimed, than to try to end the annihilation of non-Arabic-speaking Black Africans in Sudan. We are advised to heed the propaganda of the killers that the victims are also responsible. All stories have two sides, we are told.
Personally, I’d heed the cries of the victims. Preventing their gratuitous suffering is largely what a commitment to human rights is about.
To be sure, no one doubts that “ Sudan’s army and a variety of militia” have “caused 300,000 deaths in Darfur since 2003.” But, hey, “everyone” commits atrocities, we are told. The African Union actually wants “all of the parties involved in the Darfur conflict” to talk. But, we are instructed, we should empathize first and foremost with the view of the genocidal regime in Khartoum, Sudan that “such meetings would…unify the rebels.” Apparently peace is possible only on the terms of the executioners. Human rights activists are dismissed as trouble-makers. This kind of analysis reflects a transvaluation of values similar to finding fascist racism superior to multicultural constitutionalism.
Yes, ending the slaughter requires talking to the leaders of the murderers, especially if one rules out organizing to control, stop and punish the murderers. But getting involved in trying to actually stop the genocidaires risks, it is said, being used by “the rebels and bandits…and the distinction between the two is frequently unclear.” Worse yet, lord alone knows what the head of the government of the killers might do if the International Criminal Court (ICC) moves ahead with an effort to bring the leader of the genocidaires to the bar of justice. Isn’t it better to maintain “stability,” we are asked, the stability and peace of the killing fields? Surrendering to the blackmail of the killers leaves no space for promoting human rights.
The general critique of human rights intervention that has been rising goes even further. It suspects human rights motives and highlights political interests. Didn’t the EU invite the U.S. to lead an effort in Yugoslavia to stop the killing by the Serb racist Milosevic in part because of European interests in keeping Europe democratic and not solely because the Europeans cared about rights and wrongs? Given these selfish interests, we are told, isn’t the most basic issue whether one is for or against the imperialist intervention of the capitalist West? Human rights activism is re-presented as evil imperialism.
In this discourse, the actual victims become irrelevant. It is enough to know that Pol Pot was against the CIA, that Hitler was against liberalism, that Khomeini stood against the so-called “West.” Which side are you on is the question. The wrong side is liberal constitutionalism. Potential victims of systemic crimes against humanity are not to be saved; they are to be found guilty of being on the side of universal human rights, supposedly a bourgeois imperialist agenda.
But these are not isolated individuals who have launched this assault on human rights. Underlying this screed against human rights is the rise of authoritarian powers, from China to Saudi Arabia. China backs the genocidaires in Sudan. It armed Pol Pot. It provided machetes to the killers in Rwanda. It backed Milosevic. It saw the attempt to democratize Yugoslavia—as the Color Revolutions in Asia—as practice runs for trying to subvert Chinese Communist Party (CCP) authoritarianism in Beijing, with the supposed hidden motive of restoring American global hegemony. To be on the side of human rights, it is claimed, is to be on the side of American imperialism.
That any serious person takes this CCP type propaganda amazes me.
Actually, human rights are the agenda of societal groups who embrace the UDHR as truly universal. They criticize capital punishment by the government in the USA and the torture policies of outgoing U.S. President George W. Bush. They denounce discrimination against Muslims by governments in Europe. They in fact do embrace universal values. They are on the side of the cause of humanity, of the democratizers in places like Burma and Zimbabwe and Iran. They try to pressure their governments and international organizations to act on some basic moral principles.
More is at stake in this debate than the fate of millions of innocents in Darfur, though that would be more than enough. The deeper issue is whether the universal human rights agenda in general will even survive, let alone flourish. But should promoters of human rights surrender or struggle?
According to democracy-promoter Larry Diamond in his book, The Spirit of Democracy, the freedom agenda is increasingly unattractive to the international community. “ Singapore…could foreshadow a resilient form of capitalist-authoritarianism in China, Vietnam and elsewhere in Asia” in an age where authoritarian “ Asia will determine the global fate of democracy” and human rights.
Right now, it is not looking good for human rights. The apologists for the killers—hiding under a cloak of non-intervention and anti-imperialism—fare winning. The world is changing for the worse.
Edward Frieman's teaching and research interests include democratization, Chinese politics, international political economy, revolution, and the comparative study of transitions in Leninist States. His most recent books are Chinese Village, Socialist State (1991), The Politics of Democratization: Generalizing the East Asian Experience (1994), National Identity and Democratic Prospects in Socialist China (1995), and What if China doesn't democratize? Implications for war and peace (2001).
Challenging the International Criminal Court over al-Bashir
by Emma Gilligan, University of Connecticut
"The most problematic issue, however, that is not addressed adequately by either McDonell’s article or by de Waal himself rests in the question, if not through the ICC, how will the problem of justice be handled for those thousands of victims in Darfur?"
As of late November 2008, we are still awaiting the decision of the U.N. Security Council with regard to the request for the arrest of Sudanese President, Omar al-Bashir for war crimes, crimes against humanity and genocide put forward by the International Criminal Court (ICC) in July. With former Presidents Charles Taylor of Liberia and Slobodan Milosevic of Serbia as the only two heads of state formally indicted by the ICC since its inception in 2002, the question remains whether the U.N. Security Council will allow this controversial indictment of al-Bashir by Chief Prosecutor, Luis Moreno-Ocampo or invoke Article 16 of the Rome Statute to defer it?
The prospects for an indictment of the Sudanese President look discouraging. Britain, China, France and Russia have indicated that they may well support a plan to defer the investigation and prosecution of al-Bashir for the purported task of preserving the delicate 2005 Comprehensive Peace Agreement to stabilize the 22-year-old Sudanese civil war and to encourage the fulfillment of the 2006 Darfur Peace Agreement. Similarly, the Arab League and the African Union have employed the same legitimate, but problematic arguments, calling for the suspension, but not the cancellation of the indictment.
One of the chief supporters of this approach is the scholar, activist and consultant, Alex de Waal of Harvard University’s Department of Government. In all his permutations, de Waal has made a remarkable contribution to disentangling the conflict in Darfur, historicizing the problems in social, economic and political terms through his publications, as well as acting as a consultant to various bodies, including the African Union’s mediation team.
De Waal’s preferred approach to the crisis in the Sudan is diplomatic. He unequivocally rejects the ICC’s indictment of al-Bashir as a provocative gesture capable of destroying a negotiation process that demands a collaborative and inclusive approach. To pursue that end, he joined the politically neutral Darfur-Darfur Dialogue and Consultation organization formed in 2006 to popularize the terms of the Darfur Peace Agreement. Nick McDonell’s article in Harper’s Magazine follows de Waal into his meetings in Khartoum and Addis Ababa, as the British scholar seeks to shore up alliances. These meetings not only illustrate the extent of de Waal’s political contacts in the region, but the entrenched positions of the political factions in Sudan. These disturbing vignettes include de Waal’s meeting with Musa Hilal, the former government leader of the janjaweed forces, General Oyai Deng Ajak of the Southern People’s Liberation Army as he seeks munitions support in Ethiopia, Sudan’s Ambassador to Ethiopia, Ambassador Mohieldin Salim and most unnerving—a meeting with Abdullah Safi-al-Nur—the figure responsible for arming Hilal’s janjaweed.
De Waals’s arguments against the indictment of al-Bashir are legitimate and they resonate the same concerns others have had with regard to Truth and Reconciliation Commissions and Criminal Tribunals in transitional democracies. Would the President’s arrest only incite further civil war? Is this an appropriate time to deal with issues of accountability over Darfur? Will issues of accountability, as de Waal has claimed elsewhere, be marginalized in the negotiation process precisely because of the indictment?
These concerns are no doubt speculative and whether the negotiation process succeeds or fails in the Sudan depends on any number of historical contingencies that are by no means always predictable. And de Waal is not without his critics. The Save Darfur Coalition, a group of 180 faith-based, advocacy and human rights organizations rejects his position and leaders of the Darfuri diaspora have called it a “bartering of accountability.” Moreover, de Waal’s argument that issues of accountability may be sidelined in the negotiation process precisely because of the indictment is difficult to sustain. One wonders whether al-Bashir would ever allow for accountability clauses in any peace agreement, with or without the threat of an arrest.
The most problematic issue, however, that is not addressed adequately by either McDonell’s article or by de Waal himself rests in the question, if not through the ICC, how will the problem of justice be handled for those thousands of victims in Darfur? If not through the indictment of a leader responsible for perpetrating and sustaining such a gruesome and cruel conflict, through what channels will the ever-marginalized civilian victims be answered in moral terms? This too is a vision worth pondering.
After completing her doctoral studies in Russian history at the University of Melbourne, Australia, Emma Gilligan was a postdoctoral fellow in the Department of History at the University of Chicago from 2003-2006. During this time, she completed her book Defending Human Rights in Russia; Sergei Kovalyov Dissident and Human Rights Commisioner, 1969-96 (Routledge, 2004). This book traces the evolution of the Soviet human rights movement from the 1960s in Moscow to the collapse of the Soviet Union in 1991. It analyzes, in particular, the rise of Sergei Kovalyov, Russia's first human rights commissioner under the presidency of Boris Yeltsin and the impact of former Soviet dissidents on the discourse of human rights in the post-Soviet era. Her second book, War Crimes in Chechnya (Princeton University Press, forthcoming 2008) examines the war crimes committed by Russian soldiers against the civilian population of Chechnya. The study places the conflict in Chechnya within the international discourse on humanitarian intervention in the 1990s and the rise of nationalism in Russia. Emma Gilligan is the author of articles for the Chicago Tribune, ‘Why there is no Peace in Chechnya,’ 2005 and ‘US Loses High Ground on Human Rights,’ 2006 and the International Herald Tribune. She is a member of the Gladstein Committee for Human Rights and a joint hire with the Human Rights Institute. She teaches courses on the history of human rights and genocide after the Second World War.
Alex de Waal’s Shuttle Diplomacy
by Sarah Stanlick, Harvard University
"The multiplicity of actors, logistical issues, historical grievances, and mistrust has festered in the stalemate to create an environment rife for misunderstanding and miscommunication. The situation is broken, with unclear parties, unclear needs, and an unclear roadmap."
This month’s discussion piece, “The Activist,” is a critical look at one of the most renowned scholars of the turmoil in Sudan. Alex de Waal, a man with an almost encyclopedic knowledge of the different factions, aspects, and issues surrounding the conflicts in Sudan, is profiled under a careful eye. De Waal, a competent critic—as McDonell notes who “takes pride in his competence, and he does not hesitate to criticize activists he deems inexpert”— has built a career on a meticulously researched understanding of the conflict. He honed that reputation through careful action, critical thinking, and a critical voice for actors who do not hold the same academic and experiential pedigree; namely, activists.
Despite his disdain for activist intervention in the region, de Waal may be the best person to carry out activist’s biggest hope. In December 2007, the Enough Project (ENOUGH), an offshoot of the Center for American Progress, called for “aggressive shuttle diplomacy” to help bring about a transformation in Darfur. Shuttle diplomacy, recommended in cases of extremely complex and seemingly intractable conflicts, allows for mediated communication in rapid-fire succession to bring about a solution and limit outside input from those who could set the process off course. ENOUGH’s reasoning for this recommendation is that swift, controlled mediation would limit negative influence of regional actors, counter the unwillingness of rebel leaders to travel and meet official mediation teams, and address the fractured nature of the conflict.
As a member of the African Union’s mediation team in 2005 and 2006, de Waal has the official capacity and the legitimacy to undertake this shuttle diplomacy tack that is advocated by the Enough Project. As evidenced by de Waal’s work with Abdul Mohammed and his condemnation efforts against Bashir’s indictment by the International Criminal Court (ICC), de Waal is already working his brand of shuttle diplomacy. Rather than use his shuttling skills to undermine the ICC—a legitimate construct that is indicting Bashir, who will get a fair trial—de Waal could turn his attention to shuttling information between parties to resolve the conflict. Breaching the divide between academic analysis and conflict “street smarts,” de Waal has the potential to usher peace into the region for the first time in decades.
The multiplicity of actors, logistical issues, historical grievances, and mistrust has festered in the stalemate to create an environment rife for misunderstanding and miscommunication. De Waal himself admits that the government in Khartoum is fractured, and it is apparent the power base is ill-defined in the region. The situation is broken, with unclear parties, unclear needs, and an unclear roadmap. However, if there is any singular person who can bridge the gap between the many factions, it would be de Waal. Leveraging connections which he has cultivated from his Ph.D. research days until now gives him ample resources and lines of communication that he could tap into. His vast wealth of cultural understanding, legitimacy, and credentials puts de Waal in a unique position to thrive in this position.
Furthermore, what de Waal can gain from his work in this capacity would be the ability to show his students that there is a nexus between passionate activism and pragmatism. De Waal's caution against hot-blooded activism is understandable. Action without understanding could prolong or worsen an already complex conflict. However, level-headed, logical approaches to activism surrounding genocide should not be shunned completely. The danger in staunch anti-activism is the ability to inspire passivity in others, including his students. McDonell notes that there has been many a frustrated student who has angrily asked the activist-wary professor, “What do you want us to do?!” Through his role as a shuttle diplomat, de Waal could concede that activists can be competent decision makers, and that their collaboration with academic heavyweights can yield great things.
Shuttle diplomacy is one approach that could be beneficial, and it is important to note that it is not a fail-safe strategy. Olusegun Obasanju’s recent efforts in the Democratic Republic of the Congo yielded a tenuous ceasefire which was quickly violated, and Henry Kissinger’s work in the Middle East did not forge a lasting peace. But shuttle diplomacy could also yield peace—as is evidenced by George Mitchell’s work in Northern Ireland. While academics argue about credentials, labels, cultural competency, and remedies, people continue to die. The impetus is on those who know the region best to take steps to forge a peace that lasts long enough to make inroads for a more permanent solution.
With a new administration swiftly being compiled, the hope for Sudan-watchers is that a massive policy shift will occur that will compel the United States to quick action. It remains to be seen, however, exactly what policies and plans will be put into place. In the interim, this remains a dire situation that commands immediate attention. The International Crisis Group notes that the changes to the conflict over the last year have been great, and not for the better. While shuttle diplomacy can yield results, the participants must be willing and the mediator must be both swift and careful—characteristics de Waal possesses and could leverage for positive action.
Sarah Stanlick is currently heading a health and human rights project working to alleviate health burdens on the underserved population of Lawrence, MA and as a teaching assistant at Harvard University. She formerly served as Research Associate to Samantha Power at the Carr Center for Human Rights Policy at the Harvard Kennedy School, and was also affiliated with the Belfer Center for Science and International Affairs at HKS. She graduated as a Trustee Scholar from Lafayette College and holds a Master’s degree in Conflict and Coexistence from Brandeis University.
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