Should War Crime Perpetrators Pursue PhDs?

Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

Saif al-Islam Gaddafi addresses an audience at the London School of Economics in 2010 (Photo: Ben Stansall / AFP / Getty Images)

The first-ever individual convicted by the International Criminal Court (ICC) has asked judges at The Hague-based Court to grant him early release so that he can pursue a PhD. The former warlord and rebel leader Thomas Dyilo Lubanga, a man sentenced to fourteen years for conscripting child soldiers to fight in a brutal war in the eastern Democratic Republic of Congo, wants to attend Kisangani University to study “the sociology of ethnic harmony”. In Lubanga’s own words: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony”.

Most observers appear to be oscillating between a sense of incredulity and simply being incensed. How could a convicted war criminal be granted early release in order to study how to prevent precisely the types of crimes he himself is ultimately responsible for? The mere suggestion smacks of some kind of cruel and unusual joke. As one tongue-in-cheek comment had it, perhaps Lubanga could insist his crimes were simply a result of “participant observation”, the popular research method of imbedding oneself in the very social and political setting under examination.

Whether he is released now or at the conclusion of his sentence in two years, the issue of Lubanga’s interest in pursuing higher education isn’t, in fact, anything new for alleged war criminals and raises important yet insufficiently answered questions within the realm of international criminal law and justice. Let’s take a look at two other examples: Libya’s Saif al-Islam Gaddafi and northern Uganda’s Sam Kolo.

Unlike Lubanga, Saif al-Islam Gaddafi managed to fit in his higher PhD studies before emerging as a central figure in the ICC’s investigation of war crimes and crimes against humanity during Libya’s 2011 uprising and civil war. Gaddafi infamously attended the London School of Economics where he submitted a PhD on democratisation and global civil society. The full name of Gaddafi’s thesis was “The Role of Civil Society in the Democratization of Global Governance Institutions: From ‘Soft Power’ to Collective Decision-Making?”. Remarkably, the thesis often spoke to precisely the kind of world that those who support international criminal justice seek. In one passage, Saif writes: “The international order has a responsibility to protect the basic rights of those citizens who live under non-liberal governments”. Of course, not everyone was fooled into believing Saif would emerge as some pro-democracy, pro-human rights, pro-justice alternative to his despotic father. But most turned a blind eye to the whole fiasco…

…That is until Libya descended into civil war, and it emerged that Saif al-Islam Gaddafi ardently supported his father’s crackdown on civilians in Libya. At the time, it was also revealed that Gaddafi’s academic achievements had been doctored (excuse the pun). Rather, a nefarious network of primarily British political and business connections concocted to promote Saif as the future ‘liberal’ leader of Libya, secure Western interests in the oil-rich nation, rehabilitate the Gaddafi regime, and, as an aside, write Saif’s PhD for him. For a while at least, though, Mr. Gaddafi was Dr. Gaddafi – and very few people had an issue with it.

Not long after the 2011 civil war came to an end, another alleged perpetrator of mass atrocities received a degree in northern Uganda. In January 2012, Sam Kolo, a former senior commander in the Lord’s Resistance Army (LRA) “completed a remarkable journey from the life of a rebel to a graduate” and was rewarded with a degree in business administration from Gulu University. Kolo, who led an LRA delegation during peace talks in 2004, had previously received an amnesty under Uganda’s 2000 Amnesty Law and, according to one observer, following his defection from the LRA, the former rebel commander “provided valuable intelligence to the Ugandan army in their hunt for Joseph Kony, the long-time leader of LRA”. Kolo was eventually supported in his pursuit of a degree by the Ugandan government’s scholarship scheme. Notably, Kolo has regularly expressed regret over his membership in the LRA, stating on the day of his graduation that it prevented him from pursuing his dream of becoming a university lecturer.  Continue reading

Posted in Democratic Republic of Congo, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Uganda | Tagged , , , | Leave a comment

Is Local ICC Justice Necessarily Better than ICC justice?

Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

Dominic Ongwen arrives for a hearing in his trial at the ICC (Photo: Reuters)

A few weeks ago, the International Criminal Court (ICC) came nail-bitingly close to finally holding proceedings in an affected community rather than in The Hague. Ultimately, the ICC’s president decided that the risks of holding part of the trial of Bosco Ntaganda in Bunia in the Democratic Republic of Congo (DRC) outweighed the benefits of serving some ICC justice locally. The debate over whether to hold hearings in Bunia raises broader questions: should the ICC be a traveling court? Should its judges, prosecutors, and defence lawyers present their cases in the very same contexts and in the same communities where the alleged perpetrators committed their crimes? Beyond issues of security, what are the potential costs of doing so?

The International-Domestic Tension and Dream

In the world of international justice and human rights, it is almost universally accepted that accountability is ideally served locally. Justice is best pursued where victims and survivors reside, where evidence can be collected and presented, and where affected communities can see it being done.

In this line of thinking, global institutions that mete out criminal justice, like the ICC, are not ideal purveyors of accountability. Instead, they are seen as necessary bodies that ‘fill in’ the accountability gaps that result from states being unable or unwilling to investigate and prosecute mass atrocities and human rights violations themselves. Put another way, given the option of having no justice or abstracting accountability from affected societies to The Hague, the latter option is always preferable. And here’s the kicker: many believe that if the international community buys into the project of international criminal justice, over time there will eventually be no need for such international institutions. As the commitment to prosecute international crimes spreads, the ICC will work itself out of business and states will be able to justice themselves. As former ICC Chief Prosecutor Luis Moreno Ocampo regularly suggested during his tenure, the ultimate success of the Court would be realised when it had no cases in its dock because states meted out justice themselves.

The hope that the ICC’s mere existence and mandate will lead to a world where states prosecute all mass atrocities and human rights violations themselves is, at worst, a promise of unicorns and rainbows. At best, given the existence of regimes like those in Syria and Sudan, and the impunity gap in states with robust judiciaries like the United States and the United Kingdom, it is certainly a very long-term aspiration. This is not to say that this isn’t a good or useful aim to have. But it shouldn’t detract from the myriad of obstacles international criminal justice face today. It also shouldn’t obfuscate from the potential of bringing ICC justice closer to ‘home’.

A Traveling Court 

In recent years, there has been a growing interest in seeing the ICC hold hearings in the communities in which the relevant atrocities were perpetrated. This is wholly in line with the Rome Statute of the ICC, which grants the court’s judges the purview to hold hearings, whenever deemed feasible and desirable, in affected communities. Along with the conviction that justice is best served as close to the source of injustice, many also believe that if affected communities truly got to see the Court in action, their oft-stated criticisms would be tempered and those governments that have made a habit of attacking the institution would have a harder time doing so.

In fact, the idea of holding ICC proceedings locally is nothing new. Court officials have previously considered holding hearings in the trials of Thomas Dyilo Lubanga in the Democratic Republic of Congo (DRC), of senior government officials allegedly responsible for the 2007/08 post-election violence in Kenya, and (in a much less public way) for Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya. Apart from the recent decision not to hold the Ntaganda trial in Bunia, there are ongoing and advanced discussions about holding the confirmation hearings of child soldier turned Lord’s Resistance Army (LRA) commander Dominic Ongwen in Gulu in northern Uganda.

Indicative of just how widespread the conviction is that local ICC justice is necessarily better ICC justice, it is hard, if not impossible, to find any public statement or article arguing that Ongwen should not be tried in Gulu. One piece insisted that such an in situ trial would be “great news”. In a rare moment of agreement, both the prosecution and defence are on board, suggesting the public face of the ICC, as well as Ongwen himself, prefer proceedings to be held in northern Uganda. Continue reading

Posted in Bosco Ntaganda, Democratic Republic of Congo, Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Uganda | 4 Comments

Heading to the University of Toronto

(Photo of Toronto: TsaiProject / Flickr Creative Commons)

(Photo of Toronto: TsaiProject / Flickr Creative Commons)

Dear Readers,

It is with great pleasure that I announce that I, along with the blog, are heading to the University of Toronto. I recently accepted a two-year post doc from the Social Sciences and Humanities Research Council and will be based at the Munk School of Global Affairs, working with Ron Levi.

After five years of working on the nexus of ongoing war, conflict resolution and international criminal justice, the research I am preparing to undertake will examine the historical and political relationship between the International Criminal Court (ICC) and the ‘BRICS’ (Brazil, Russia, India, China and South Africa). The premise of the project is rather simple: in international relations, we have been told two stories: one, that with the creation of the ICC, international criminal justice has become a permanent reality in international politics; and two, that as a result of the rise of new powers, particularly the BRICS, we are witnessing a re-ordering of the distribution of global power. The key question is: are these trajectories compatible?

Over the next two years, my research will explore the engagement of the BRICS with the ICC since the Rome Statute negotiations through to the current day. With a general paucity of literature regarding the relationship between specific states and the Court (with the notable exception of the United States), I hope this work will not only illuminate the relationship between BRICS and the ICC but also contribute to our knowledge of the prickly and political intersection of diplomacy, power and international criminal justice.

As always, thank you from the bottom of my heart and the tips of my fingers for your support and readership.

Mark

Posted in JiC News | 2 Comments

A New War Crimes Court is Born, but Who is Responsible in Kosovo?

Aidan Hehir joins JiC for this critical examination of Kosovo’s war crimes tribunal and the need to pursue accountability for all parties directly and indirectly responsible for mass atrocities in the country. Aidan is a Reader in International Relations at the University of Westminster.

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999.  (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

U.S. soldiers provide security as members of the Royal Canadian Mounted Police Forensics Team investigate a grave site in a village in Kosovo in 1999. (Photo: Sgt. Craig J. Shell, U.S. Marine Corps)

On 3 August, the Kosovo parliament voted to alter Kosovo’s constitution to enable the establishment of a Special Court. The court will investigate evidence uncovered by the European Union Special Investigative Task Force of forced detention, torture, murder and, perhaps most shockingly, organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) from 1 January 1998 to 31 December 2000.

Kosovo’s war crimes court will deal with important and perhaps unique questions about culpability in transitional justice. The offences under its jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo.

“Monsters” and “Victims”

Kosovo Albanians generally see the KLA as freedom fighters who brought about their “liberation”, albeit with the aid of NATO’s military intervention in March 1999. The idea that the KLA, or the Kosovar Albanian community more generally, could be guilty of human rights violations jars with the popular conception of “Serbian aggressors” and “Albanian victims”. Indicatively, Ramush Haradinaj, the former Prime Minister and current leader of the Alliance for the Future of Kosovo, stated: “By approving this court, we are turning ourselves into a monster…we were not monsters; we were victims.”

Kosovo’s declaration of Independence in February 2008 sparked jubilation amongst the majority Albanian population, but this has given way to spiraling anger and dissatisfaction; unemployment remains cripplingly high, wages are low, and corruption is rife. Between December 2014 and February 2015 some 50,000 Albanians left Kosovo in an ill-fated attempt to reach the EU. In March, the UN ranked Kosovo as the fourth largest source of asylum seekers in the world. Amidst this depravation, many naturally take comfort in KLA nostalgia. Unsurprisingly, the prospect of this source of pride being besmirched doesn’t appeal.

The Court’s perceived legitimacy amongst the Albanian community – which clearly has profound implications for peace and stability within Kosovo – will hinge upon the extent to which the actions of the KLA are acknowledged to have been supported – or simply tolerated – by external actors. This external support involved two distinct phases that lie within the Court’s three-year remit: first, the support afforded to the KLA during the struggle against Yugoslav forces from 1 January 1998 until the end of NATO’s intervention on 10 June 1999; and second, the tacit support provided by the international administration established after NATO’s intervention and lasting until 31 December 2000.

Supporting “Terrorists”?

Prior to NATO’s intervention the KLA were known to engage in attacks against Serbian – and also Albanian – civilians; indeed, in February 1998 the US Envoy to the Balkan stated that “[t]he UCK (KLA) is without any question a terrorist organisation” and, a month later, UN Security Council Resolution 1160 condemned “all acts of terrorism by the Kosovo Liberation Army”. Still, evidence now suggests that a number of Western states covertly sent Special Forces into Kosovo in 1998 to train the KLA (James Pettifer (2012) The Kosova Liberation Army, p. 178). More overtly, during Operation Allied Force NATO coordinated militarily with the KLA.

After NATO’s intervention concluded, the Security Council passed Resolution 1244 giving UNMIK administrative powers in Kosovo and charging NATO-led KFOR with maintaining peace and security. Despite the huge international presence, attacks against the Serbian community increased dramatically when NATO’s campaign ended, precipitating a round of “counter-ethnic cleansing”. Reports by Human Rights Watch and the Red Cross recorded that by October 1999 over 200,000 Serbs and thousands of Roma had fled Kosovo in what was described by the then chief prosecutor for the International Criminal Tribunal for the former Yugoslavia Carla Del Pointe as being “…as serious as what happened there before [NATO’s intervention].”

In its initial phase, the international administration made two fateful decisions: one, to tolerate the mass exodus of Serbs and two, to turn a blind eye to the criminality perpetrated by sections of the former KLA. According to a report produced on behalf of the Council of Europe’s Committee on Legal Affairs and Human Rights, the international administration, “favoured a pragmatic political approach taking the view that they needed to promote short-term stability at any price.”

There was some logic to this of course. Tackling the criminal elements of the KLA would have led to confrontations with an armed guerrilla organisation whose support they needed. Additionally, stopping the Serbian exodus, and confronting those who targeted Serbs, would have been costly, dangerous and angered sections of the Albanian population. Ultimately, the continued presence of Serbs in cities such as Pristina, Peja and Prizren would have constituted a persistent source of instability whereas their relocation to enclaves such as Northern Mitrovica and Gračanica removed various inter-ethnic flash points. Continue reading

Posted in Balkans, Guest Posts, International Criminal Justice, International Law, Kosovo, Serbia, Transitional Justice | Tagged , | 2 Comments

The Africa-ICC Relationship – More and Less than Meets the Eye (Part 3)

Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

“All shall be equal before the law”. Graffiti in Cape Town, South Africa (Photo: Ben Sutherland / Flickr)

Over the last two weeks, I have attempted to critically examine and assess the relationship between African states and the ICC. In the first post, I critiqued popular assumptions about the relationship, namely that it is viewed as either the result of an unfair, neo-colonial ICC targeting an unwitting continent or of a misunderstood institution that is, in reality, representing the interests of Africans as a ‘Court for Africa’. Attempting to understand the politics and complexity of the relationship between African states and the ICC, such perspectives do more to obfuscate than illuminate.

In the second installment, I explored three cases: the surrender of senior Lord’s Resistance Army commander Dominic Ongwen to the ICC, the visit of Sudanese President Omar al-Bashir to South Africa, and the prosecution of heads of states. None of these crucial developments and issues can feasibly be explained by the dominant understanding of the Africa-ICC relationship.

Of course, it would be wrong to assume that these posts have been able to do anything more than scratch the very surface of this dynamic relationship. To insist otherwise would be to fall prey to oversimplifying the relationship. But what I have tried to demonstrate is that the Africa-ICC relationship is far more complex, both legally and politically, than presented by the Court, African states, or most observers. We need to do better than seeing the relationship within harsh dichotomies or tropes. If nothing else, that is the result of this three-part series.

In this third and final post, I want to expand the way that we look and judge the Africa-ICC relationship. Specifically, I want to argue that we need to expand the parameters of our understanding by examining and assessing the relationship not between African states and the Court but by taking a broader view of the engagement of African communities with international criminal justice. But first, here are some more direct conclusions that flow from this series.

Open and Honest Discussion

All of the parties involved – African states, the Court, and observers of all stripes – can and should do more to foster a more open and honest discussion and debate regarding the concerns and criticisms that African communities have of the ICC. Proponents of the Court need to understand that the criticisms levied against the institution are either real or so widely perceived to be real that they need to be treated as such.

At the same time, the ICC itself desperately needs to improve the way it communicates its work, particularly to affected societies. The Court’s public relations strategies are ineffective and, as a direct result, the ICC’s role is too often misunderstood, feeding a fertile breeding ground for misperceptions. The Court has done very little to deal with the critical conceptions of its work head-on. Its social media strategy is essentially non-existent and its website does little more than the dead-end of the internet to advance an accessible understanding of the Court’s work. Being more transparent, improving its social media engagements, and instituting a innovative and smart public relations strategy could dramatically improve knowledge of the Court’s work in affected communities and around the world.

At the same time, there is a need, for all parties, to acknowledge that the ICC has not – and perhaps cannot – transcend international politics. A recent op-ed suggested that the Court’s focus on African states is a result of them being ‘low-hanging fruit’. Indeed, there is a debate to be had about whether the Court’s focus on African states is the result not of them being African but because they are weaker states where the Court has jurisdiction. Part of this is structural: many strong states (the United States, Russia, China, etc.) are not members of he Court and are often outside the jurisdictional reach of the Court and yet are able to steer the Court’s focus via referrals from the United Nations Security Council. At the same time, there is at least some correlation between fragile states, political violence, and weak judiciaries – all of which are variables that help establish weak state ‘candidates’ for ICC and other forms of humanitarian intervention.

For scholars and interested observers, it behooves us to interrogate this nexus of power, political interest and justice. The primary focus of analysis of the ICC – both critical and not – has been on the Court’s impacts in those states and regions in which it has intervened. This has spawned an important debate on issues such as the relationship between conflict resolution and accountability as well as how to establish accurate measures of the ICC’s effects. These are no doubt important, but we should also go behind the veneer and explore the largely untapped relationship between diplomacy and the Court. Here, as I have argued elsewhere, we need a much richer understanding of the institutional interests that guide the ICC’s decision-making and, ultimately, its interventions. Gaining such an understanding may just be the key to truly discerning the Court’s selectivity both between situations and within them.

In general, the debate about the Africa-ICC relationship needs much more critical analysis. There is both more and less than meets the eye. But the way the relationship has been presented to date hinders, rather than helps, us see it.

Taking a Broader Look – More than Meets the Eye

Digging deeper into questions of power and diplomacy would enrich our understanding of the Africa-ICC relationship. But we also need to do a much better job understanding the broader relationship between African communities and international criminal justice. There needs to be a shift in focus away from myopically examining the ICC-Africa relationship to the role and development of international criminal justice on the African continent. And here there is a tremendous wealth of projects that needs more sustained attention and scrutiny.

There are numerous ongoing proceedings against alleged perpetrators of war crimes and crimes against humanity. In addition to the ongoing proceedings against Hissein Habré in Senegal, there have been domestic trials of ICC indictees, including Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya as well as former Ivorian first lady Simone Gbagbo. For a host of reasons, these trials, especially those of former Gaddafi regime officials, have been highly controversial and rightly criticized. It may be too soon to announce the onset of an era where we are witnessing an “Africa that judges Africa”, but it does seem evident that states are taking prosecutions for international crimes increasingly seriously and view such prosecutions as  part of their national political interest. Continue reading

Posted in Africa, African Union (AU), Central African Republic (CAR), Complementarity, Hissène Habré, International Criminal Court (ICC) | 5 Comments

Justice, But Only For Some: The Trial of Hissène Habré

Kelly-Jo Bluen joins JiC for this critical take on the trial of Hissène Habré and the need to pursue justice for all parties responsible for atrocities in Chad. Kelly-Jo is the project leader for international justice at the Institute for Justice and Reconciliation based in South Africa.

(Photo: Jean-Louis Atlan / Sygma / Corbis)

(Photo: Jean-Louis Atlan / Sygma / Corbis)

The trial of former Chadian President Hissène Habré in Senegal last week reflects many of the tensions afflicting international justice. Habré, who is charged with crimes against humanity, torture, and war crimes, relating to the death of an alleged 40,000 people between 1982 and 1990, denounced the court as a colonial project before being forcibly removed from the courtroom. The trial was subsequently postponed until 7 September, for Habré’s defence counsel to review court files.

The Dakar-based Court where Habré is being prosecuted is the Extraordinary African Chambers (EAC), an African Union mandated chamber with jurisdiction to prosecute “the person or persons most responsible for crimes and serious violations of international law” in Chad between 7 June 1982 and 1 December 1990.

This trial presents a critical juncture to reflect on two pertinent issues, both for the case and for the international justice architecture. First, in light of the well-documented role of Western powers in the Chadian conflict’s Cold War dimensions, and those that preceeded them during French colonial rule, the trial presents an opportunity to consider more expansively who “the persons most responsible” for gross atrocities might be in Chad. Second, and related to the divorce between complicity and accountability in the face of politics, the Habré case is revealing in terms of how notions of accountability are framed within the existing lexicon of international criminal justice.

Structural and Direct: Lines and webs of complicity

Unequivocally, the prospect of accountability for Habré is extremely important. A 2010 Human Rights Data Analysis group report that analysed evidence from the Chadian Documentation and Security Directorate (DDS) details abuse, torture, summary executions, and murder, as well as Habré’s knowledge of the abuse.

In addition to Habré, however, there exists a complex web of complicity at both direct and structural levels. While dominant narratives of international justice operate in quasi-biblical binaries of good and evil, the reality of the Chadian case is far more complex. When Habré came to power in 1982, it was, in large part, as a result of a CIA covert operation. The newly-elected US President, Ronald Reagan, was enmeshed in Cold War paranoia about Libyan leader Muammar Gaddafi and was jittery about Gaddafi’s troops’ advance into Chad. Once Gaddafi announced the prospects of a Libya-Chad merger Reagan became increasingly threatened and convinced of the importance of Gaddafi’s defeat. A 1981 CIA report on Libya elucidated the extent of US obsessive Gaddafi apprehension, focusing on the threat nexus of international terror and Soviet expansionism. It specifically detailed the vulnerability of Gaddafi’s “over-extension” in Chad and detailed a subtle approach as “an open Western challenge could rebound to Qaddafi’s advantage transforming him from outcast to Muslim martyr.”

With the explicit aim “to bloody Qaddafi’s nose” and “to increase the flow of pine boxes back to Libya,” Reagan and the CIA enlisted Habré a former Defense Minister who had been based on the Chad-Sudan border since his thwarted attempt on the Presidency in 1980. Habré’s ascent to presidency was seen as critical to the anti-Gaddafi campaign. President Reagan subsequently signed a formal intelligence order releasing several million dollars in covert support to Habré and, by June 1982, the future Chadian leader and 2,000 of his troops, armed and funded by the US, had reached N’Djamena and Habré assumed the presidency in Chad.

In addition to covert financing, the US provided an estimated $182 million in military and economic assistance during Habré’s Presidency. It provided machine guns, jeeps, missiles, surveillance aircraft, among other military hardware. A document from the DDS obtained by Human Rights Watch details training in the US in 1985 of Chadian security agents. Two of those who underwent training were found, during the Chadian Truth Commission to be Chad’s “most feared torturers”.

While the US covert operation was instrumental in cementing and maintaining Habré’s presidency, Chad was a Cold War geopolitical quagmire. Ariel Sharon, then Prime Minister of Israel agreed to provide aircraft weapons, advisors and, together with President of Zaire (present day Democratic Republic of the Congo), Mobutu Sese Seko, provided training for Habré’s troops in concert with the Zairian military.

France’s complicity is altogether more expansive and structural. France, which (officially) colonised Chad until 1960 employed a policy characterised by deliberative disunity between and within the predominantly Muslim north and predominantly Christian South. French colonial officers exploited differences to their advantage, instrumentalising cleavages for purposes of maintaining power and resources. Indeed, the very tensions that fomented decades of civil war and oppression in Chad, so readily dismissed by many Western analysts as “tribal” were entrenched by French colonialism. In the course of Habré’s presidency, keen to maintain its neocolonial hold on Chad, and blighted by the increasingly prominent role of the US in Chad, France supplied 3,000 troops, logistical support, equipment, and air power for Habré. During the course of the Presidency of François Mitterand, the French campaign in Chad from 1983 to 1984 was France’s largest military intervention since Algeria.

In addition to the atrocities committed by US and French forces in the course of the Chadian-Libyan war, western powers were aware and not deterred by the executions and torture being committed by Habré’s security forces in Chad, which in many cases using weaponry, finance, and training provided through by their Cold War allies. An Amnesty International Report as early as 1983 detailed the abuses taking place in Chad. In 2000, a former senior U.S. official remarked, “it is fair to say we…chose to turn a blind eye.” Perhaps the clearest indication of this approach was in June 1987, when President Habré was invited to the White House where President Reagan remarked, “today President Habre emphasized that his government is committed to building a better life for the Chadian people…I assured him that we will continue to do our best…to help reach President Habre’s laudatory goals”.

Habré inspecting some of his troops in 1980 (Photo: AFP)

Habré inspecting some of his soldiers in 1980 (Photo: AFP)

Implications for (International) Justice

International complicity in Chadian atrocities is hardly a secret. Human rights groups, analysts, historians and even the most conservative, status quo Western media outlets refer to Habré as a “western-backed dictator” and many acknowledge the specificites of Cold War dynamics. What is perplexing, but unsurprising then, is the disjuncture between this acknowledgement, and the determination of the appropriate course of action. Western complicity is treated as an unfortunate throwaway eventuality, stripped of its egregious role in the conflict. It is particularly telling that both the US and France are EAC donors, donating $1 million and €300,000 respectively towards the Chambers’ budget.

Temporally, the court has jurisdiction to prosecute international crimes committed from 1982 to 1990. While this precludes accountability for the destruction and systemic preconditions to conflict created by French colonialism, it does include within its timeframe Western responsibility during the Cold War. The Court, however, will try only Hissène Habré as delineated by the prosecution. On the implications of international backing for the case, EAC Prosecutor Mbacké Fall notes, “neither France nor the US felt concerned by the Habré regime’s massive human rights violations. But, having said that, I don’t think it will have an incidence on Habré’s guilt.” There is no scope, at this point, for criminal justice or other forms of accountability for Habré’s Western allies.

The Habré case, perhaps most poignantly, illustrates the politics of a singular focus on individualised criminal accountability and the problematics of negating internationalisation. Without diminishing the importance of holding Habré accountable, it should be noted that he is not singularly responsible. While the precepts of individualised accountability for gross crimes are important, in individualising, and particularly in individualising within the framework of contrived temporal jurisdictional limitations, two critical factors are excluded. First, we exclude accountability for historical complicity in proliferating structural conditions which cause violence because they precede the proscribed temporal mandate. Second, the language around individualised accountability, derived from a specific set of liberal ideas preclude accountability for external actors, in localising that which is often international and designating responsibility and command in ways that exclude external actors.

There is thus is a disjuncture between much of the vocabulary surrounding international criminal justice and the realities it seeks to address. Many conflicts, and specifically those in a Cold War context of protracted neo-colonial relationships are internationalised. The selectively-employed concept of “sovereignty” is flaccid where external advisors, funders, and patrons have the power, through capacity support, technical training, weapons, and money, to directly influence politics. The lenses offer us “civil war” despite international sponsorship and “state terrorism” despite transnational frameworks.

In so doing, they allow for the continued entrenchment of a dichotomy which posits a well-behaved West in opposition to a barbaric Africa. In this context, and specifically in Chad, where there is such an apparent a link between the atrocities committed and the US and French governments, prosecuting domestic actors in isolation without assessing international ones cannot purport to do justice in a fashion that is truly international. Again, this is not to suggest that Habré should not be held accountable; he should. But the focus on Habré to the exclusion of other powerful actors is insufficient and unjust in the context of layered and internationalised complicity for crimes.

 

Posted in African Union (AU), Chad, Guest Posts, Hissène Habré, International Criminal Justice, Senegal, Special African Chamber (CAE), War crimes | 3 Comments

Putting Victims First: The Aftermath of al-Bashir’s Visit to South Africa

Stephen Lamony joins JiC for this timely piece refocusing debates on Sudanese President Omar al-Bashir’s travels in defiance of the International Criminal Court to its impact on victims. Stephen is Head of Advocacy and Policy, UN, AU and Africa Situations and Sina Alavi, Bridge Fellow at the Coalition for the ICC.

Refugees carry water in Sam Ouandja (Photo: Nicolas Rost | UNHCR

Refugees carry water in Sam Ouandja (Photo: Nicolas Rost | UNHCR

The New York Times recently published a video Op-Ed by Nicholas Kristof and Adam B. Ellick on ‘The Worst Atrocity You’ve Never Heard Of’. Kristof and Ellick sneaked into the Nuba Mountain region of Sudan to document the crimes against humanity being carried out by the Sudanese president, Omar al-Bashir. The images Kristof and Ellick captured were horrific. But they also act as a glaring reminder of the grave consequences of al-Bashir’s evasion of arrest, not only in terms of justice served for past crimes, but also with regard to the continued torment of certain pockets of the Sudanese population. Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan.

Last Month, al-Bashir visited South Africa, a State Party to the International Criminal Court, to attend a meeting of the African Union. During his visit, the South African courts ordered that al-Bashir be barred from leaving the country until a decision was made regarding South Africa’s obligations vis-à-vis the ICC arrest warrant against him. Omar al-Bashir managed to flee South Africa shortly after the court’s announcement. The events surrounding his departure are still under investigation.

In the media aftermath of al-Bashir’s visit and hastened departure from South Africa, talk of victims often came after, if at all, a discussion of the international legal nuances and political implications of his dodging arrest. While it is certainly necessary to debate those issues, too little attention has been given to why this matter is important in the first place, namely the need for an end to mass atrocities in Sudan and victims’ rights to justice. As one victim of the conflict in Darfur explained to Niemat Ahmadi of the Darfur Women Action Group,

I have lost many family members to al-Bashir’s genocidal regime and was forced to flee my home to save my own life. As a victim of al-Bashir’s brutal crimes, I am appalled and deeply disappointed in President Zuma. To me, his conscious choice to aid al-Bashir in evading justice for the world’s most heinous crime makes him as guilty as al-Bashir. It not only shows Zuma’s complicity in supporting genocide and endangering thousands of indigenous Africans in Darfur, but it has put into question his ability and desire to protect his own South African people whose struggle is no different than that of the people of Darfur.

Despite such testimonies, the victims of the genocide in Darfur are still waiting for justice, and South Africa’s failure to detain al-Bashir on its territory represented yet another disappointment in that regard.

The topic of victims was, however, brought up during the Parliamentary debate held in Pretoria, South Africa on 23 June 2015. Notwithstanding a criticism of the International Criminal Court (ICC) and its strong focus on the African continent, Bantu Holomisa, a United Democratic Movement Member of Parliament, said that his party “stood firmly with the victims of human rights atrocities, and called on South Africa to clarify its foreign policy ‘unambiguously’”. The Democratic Alliance also stated that the South African government had failed the people of Darfur: “Let us, for a moment, think about what allowing Mr. al-Bashir to evade the laws means to the 300,000 people who were murdered and the two and a half million people who were displaced in Darfur,” said Mr. Mokgalapa. He also accused the government of taking the “moral low-ground.

When the United Nations debated the situation in Sudan on 29 June 2015, in the presence of the ICC Prosecutor Fatou Bensouda, many of the permanent members and 10 members of the Security Council brought up the issue of victims. The representative of the United States, in the final words of his statement, said that the Council and the international community too often lose sight of the victims in this conflict: “It is the victims that make the need for accountability acute”. The representative of the United Kingdom made a similar statement, identifying the strong need for the International Criminal Court to ensure justice for the victims of the conflict. The representative of France also strongly stated that civilians continue to be the primary victims of the conflict in Darfur. The plight of the victims of the ongoing violence was also present throughout the Prosecutor’s speech to the Security Council. Continue reading

Posted in International Criminal Court (ICC), Sudan, Genocide, Darfur, Guest Posts, International Criminal Justice | Tagged | 3 Comments