Chasing al-Shabaab: Picking and Choosing Justice

Posted on November 1, 2011 by Elke Schwarz

This is the second piece by Andrew Jillions on Kenya’s decision to invade Somalia. Check out Andrew’s first post here. Enjoy!

What are the implications behind Kenya’s decision to wage a war of enforcement instead of a humanitarian war?

Mary Ellen O’Connell has suggested that the issue of targeted killings and counter-terrorism raises a straight choice between observing peacetime law or the law of armed conflict.

International law, she argues, has clear enough rules on the circumstances in which one or the other framework applies. This is important: it provides a level of protection against state subjectivity, against the possibility of states playing with the rules to suit their own political purposes. That international law can ensure states make the right choice speaks to the independent power of international law against the attempts by policy makers to turn law into a reflection of power.

In more immediate and practical terms choice matters because it determines how extensive a state’s obligations will be. Choosing to apply, say, the law of armed conflict instead of human rights law will have a dramatic effect on determining the legality of detention and fair trial practices. The flip side of this is that by presenting an action or technology (e.g. nuclear weapons, drones and cyberwar, etc.) as in some substantive way ‘new’ and ungovernable under the existing framework can potentially beg the question about which law to apply.

This, at any rate, is one way to sketch the narrative of why ‘non-state armed groups’ have caused so many headaches for international lawyers trying to reign in the powers claimed by the US in the “war on terror”. There was a background ambiguity about which rules applied, an ambiguity that the US could exploit to co-opt law to their subjective agenda.

I’d suggest that there is something similar going on in Kenya, a narrative of choice that has implications for the practice of humanitarian intervention.

Saving citizens; ignoring strangers

Instead of talking about the humanitarian crisis, Kenya has ignored it. Al-Shabaab are by turns an international criminal organization and a threat to Kenya’s internal and border security. The law on the use of force – Article 51 – is the body of law they point to, although as I’ve suggested the reference to ‘hot pursuit’ makes the counter-terrorism enforcement framework a more likely candidate.

The name they’ve chosen for the operation is Linda Nchi, which translates as ‘protect the country’ in Swahili. On listening to the way Kenyan officials talk about the intervention there is no doubt which country the action is intended to protect. You could be forgiven for thinking that the great evils al-Shabaab have perpetrated are: radicalizing Kenyan nationals, secreting themselves amongst genuine refugees, attacks on border posts and assorted military and security personnel, kidnapping Western tourists and aid workers, and endangering the tourism industry . . . as many as nine separate incidents in all!

(Photo: AFP / Tony KARUMBA)

But what about al-Shabaab’s responsibility for famine crimes, war crimes and crimes against humanity? Perhaps the Kenyan government doesn’t think it is relevant or useful, or simply doesn’t care. Alex Perry suggests that this is no great surprise; war is exciting, humanitarian crisis is depressing. More than this, Kenya’s decision lasers in on how little humanitarian concerns count for in a straight fight against a states’ perceived political and strategic imperatives. Continue reading →

Posted in al-Shabaab, International Criminal Court (ICC), Justice, Kenya, Responsibiltiy to Protect (R2P), Somalia | 1 Comment

Chasing al-Shabaab: Is Kenya ‘Right to Intervene’ in Somalia?

Posted on October 31, 2011 by Mark Kersten

Andrew Jillions joins us once again to consider the legality and justice of Kenya’s incursion into Somali territory last week. This post is the first of two on the subject, so keep your an eye out for the second piece tomorrow. Enjoy!


al-Shabaab troops

Nominally at least, the Kenyan incursion into Somalia was triggered by the al-Shabaab terrorist threat. As Kenya’s internal security minister put it on the eve of the intervention, this is a war of self-defence: “the government is taking robust measures to protect and preserve the integrity of the country by invoking Article 51 of the UN Charter”. The Minister for Defence went on to clarify that Article 51 grants “the right to pursue the enemy through hot pursuit and try to reach them wherever he is”.

But does this really meet the threshold for a war of self-defence? Or is it better thought of as part of an emerging law of enforcement? And where, pray tell, does the humanitarian crisis in Somalia fit into this?

Threshold Test 1: Self-defence

There are some issues with the Kenyan claim to be acting in self-defence. Namely, al-Shabaab’s incursions weren’t of sufficient seriousness to trigger the right of self-defence. Even if the spate of recent kidnappings and deaths could be decisively attributed to al-Shabaab, and even if we took into account the other 8 instances of aggression cited against al-Shabaab, it would still not be enough to justify a violation of Somali sovereignty on the basis of self-defence. In other words, the Kenyan response fails the classic tests of necessity and proportionality.

The explanation that Vidan Hadzi-Vidanovi  offers is that they’ve been reading Dinstein. Kenya was attempting to aggregate a number of ‘pin-prick’ attacks in order to reach the gravity required to trigger a war of self-defence, but haven’t quite pulled it off. Even if Kenya has been made more insecure because of al-Shabaab’s border operations, recruitment and dislocation of civilians, this not the same as being directly targeted.

Threshold Test 2: Unable or unwilling to enforce

But there is another possibility. This is that the Kenyan government had in mind the ‘unable or unwilling test’, the same test employed to justify the US violation of Pakistani sovereignty in the Bin Laden killing. In other words, they’ve been reading Ashley Deeks.

Kenyan troops entered Somalia last week (Photo: AP)

This is where the Kenyan government has been either ingenious or disingenuous, depending on how determinate you like your international law.

Where they describe the intervention as justified by a norm of ‘hot pursuit’, the growing scale of the conflict makes this a difficult justification to sustain.  More appropriate is to see this as an intervention premised on Somalia’s structural inability or unwillingness to deal with the international terrorist organisation al-Shabaab. It’s not the kidnappings that justify the intervention. It’s the evidence that Somalia is functioning as a safe-haven for a terrorist organisation.

The crucial point about the unable or unwilling test in the context of counter-terrorism is that it looks for a pattern of cross-border aggression or the existence of a transnational criminal organization; far less crucial is the threshold or seriousness of that act of aggression. The effect of this is that when we look at the basis for intervention in Somalia, we should be looking at al-Shabaab’s status as a transnational criminal organization, and at the Somali government’s inability or unwillingness to deal with this transnational threat. There’s no real need to substantiate the claim to be acting in self-defence. The essence of the claim is that multiple violations of the type that did or could have permitted a hot pursuit can trigger a more sustained intervention on the basis of the unable or unwilling test.

A worrying development?

Part of the problem with using the unable or unwilling test to ground law enforcement is that it elevates state weakness into an actionable quality. Actually we can go further than this in the Kenyan case: it elevates an admission of weakness into an actionable event. Continue reading →

Posted in al-Shabaab, Famine, Justice, Kenya, Somalia | Leave a comment

Is Killing the new ‘Justice’? The Murky Morality of Target Killings

Posted on October 27, 2011 by Elke Schwarz

Dear readers – This marks the first post at JiC by Elke Schwarz. Elke has been JiC’s long-time and faithful editor. Because of her work, we hopefully don’t have too many spelling or grammatical errors! More importantly, Elke is a PhD student at the LSE where her work focuses on the ethics of violence, biopolitics and the work of Hannah Arendt. In this thought-provoking post, Elke addresses target killings and, in particular, the ‘justice’ of using drones. Enjoy!

Is Killing the new ‘Justice’? The Murky Morality of Target Killings

The controversy surrounding Gaddafi’s death has added fuel to the fire in the debate about the legitimacy and ‘justice’ of killing those that are considered particularly evil. Whether the killing takes place directly at the hands of Western forces, as in the case of bin Laden, or whether the grounds are laid to essentially pave the way for a revenge killing, as it appears to have been the case with Gaddafi, the debate on whether killing is the new justice in the foreign policy tool belt of the West is afoot – and rightly so.

MQ-9 Reaper drones are used in Afghanistan and Pakistan. Photo: Wired

Questions of legality, legitimacy and morality ought to be posed when considering the current narrative that shifts the practice of target killing into the space of justice. The post below is an updated and version of an article I had written in the wake of the drone killing of Anwar al-Awlaki last month, but the underlying principles of assassinations as a new norm are worth considering again in the context of Gaddafi’s demise.

The recent news of the killing of US citizen Anwar al-Awlaki by American drones sparked a much overdue flurry of criticism and questions on the ethics and legality of Obama’s death-by-drone programme in the war on terror. Awlaki, al-Qaeda’s alleged ‘chief of external operations’ in Yemen (an upgraded title he received posthumously by officials at the White House and the CIA – previously he was by reputation and status merely a radical Muslim cleric) is the first US citizen to have been assassinated in President Obama’s brand of the fight against terrorism.

The drones programme is by no means a recent tool in the American war chest, nor has it been particularly reserved in its remit of eliminating specified targets in this interminable ‘war’ effort. What is new, however, is that the US has given the green light to eliminating its own citizens, without due process, stripping said citizens of their 5th Amendment rights and rendering them essentially unworthy of living. Awlaki was not the only US citizen targeted and killed by American drones – his 17 year old son was also a recent victim of a US drone strike conducted in Yemen a fortnight after Anwar al-Awlaki’s killing.

The fact that a public outcry against the extra-judicial assassination of a human being becomes audible (aside from the controversial killing of enemy #1 bin Laden of course) only when a US citizen is concerned starkly highlights the normalised extra-judicial status of all foreign drone targets in the perception of the international public. The gloves that came off during the Bush administration are still off and killing as the new justice is beginning to supersede the norm against assassinations.

The norm against political assassinations has been in serious peril since the Bush administration first overtly conceded the strategic use of target killings, framed as a military act to weed out and eliminate high-level Al-Qaeda members, in 2002. This norm continues to deteriorate with Obama at the helm, who has stepped up the drones programme considerably since he took over from Bush junior in 2008.

Funeral for victims of drone strikes. Photo: NY Times

Today, there are roughly double the number of drone attacks per week in regions deemed terrorist hotbeds, specifically Pakistan. Since 2004, these drone strikes are reported to have killed between 1,579 and 2,490 individuals, whereby some analyses estimate the civilian casualty rate among these statistics to be as high as 20%. The vast majority of these deaths have occurred in 2010. Since June 2011, the US has expanded its drone programmes in Somalia and it has been reported that some 145 drone strikes have contributed to the capture (and, one might make the case, the killing) of Gaddafi.

While the policy originated as a programme to “capture and kill” a small number of high value terrorist leaders in the G.W. Bush years, the programme has expanded its remit considerably: up to 2,000 killings can hardly be described as a small number, no less if we accept that the total number of military leaders killed was a mere 35 since 2004.

Continue reading →

Posted in Afghanistan, Drones, Justice, Libya, Osama bin Laden, Osama bin Laden and international law, Pakistan, Terrorism, The Tripoli Three (Tripoli3), United States | 2 Comments

International Criminal Law and Deterrence – A Pointless Endeavour?

Posted on October 25, 2011 by Patrick Wegner

Can the prospect of ending up in a courtroom really deter perpetrators of atrocities in conflicts?

One of the main arguments of advocates of international criminal law is that indicting and trying perpetrators of war crimes, crimes against humanity and genocide will contribute to stopping similar violations in the future. The Chief Prosecutor of the International Criminal Court (ICC) is a vocal supporter of this thesis. In a speech during a 2008 conference in Nuremberg he claimed: ‘Experience has taught us that […] law is the only efficient way to prevent recurrent violence and atrocities.’ Critics of international criminal tribunals and courts, however, are critical of such claims. John Bolton, former US Envoy at the United Nations and voice of ICC critics in the US made the following statement ‘Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke.’

Deterrence is a very complicated concept and its effectiveness is debated even in  national criminal law. The principle of deterrence rests on the assumption that perpetrators follow a rational calculus when deciding to commit crimes. For this very reason there are serious doubts whether the threat of punishment can really deter someone from committing a crime, particularly as perpetrators of serious crimes often commit them under the influence of drugs or while being emotionally unstable.

Coffins of the victims of the Srebrenica Massacre

Critics have a wealth of cases to pick from when trying to prove that deterrence in the international context does not work in practice. The Srebrenica Massacre happened when Ratko Mladić and Radovan Karadžić, two of the main perpetrators, had already been indicted by the International Criminal Tribunal for the former Yugoslavia. Bosco Ntaganda has continued committing crimes in the DRC after being indicted by the ICC, and in Sudan reports of human rights violations in the new conflict zones in Abiyei, Blue Nile and Southern Kordofan are a steady trickle despite the ICC warrant issued for President Omar al-Bashir. One of the ICC suspects in Sudan, Ahmed Haroun, the now-governor of Southern Kordofan, has even been personally implicated in these crimes. Authors have pointed out that the reason for this deterrence failure may be that those who commit atrocities are high risk personalities or simply evil, willing to accept even death as a possible sanction to their actions. Additionally, rebels involved in conflicts just have more immediate worries of survival while they are fighting in the bush and may thus disregard possible sanctions for war crimes.

Still, there are voices in the debate trying to explain the bad track record brought forward by critics while upholding deterrence claims. Some say that deterrence may not have worked in the context of the former Yugoslavia because the ICTY had not enough time to establish itself, others say that ethnic hate speech just overrode the deterrent effect. Juan Méndez, Special Advisor to the ICC presented graphs with mortality figures for ICC situation countries at the Rome Statute Review Conference that also seemed to point towards a deterrent effect of the investigations. Especially in the cases of Uganda and Darfur, mortality figures slumped sharply after the Court had taken up its work. The figures have to be taken with a grain of salt though. In the case of Darfur, the Government of Sudan and its allied Janjaweed militias had stopped the approach of attacking villages of the Fur, Masalit and Zaghawa tribes at the point when the ICC had started its work. The situation had developed to one of low-intensity conflict and banditry in which the Government of Sudan allegedly started to target ‘African’ tribes in Darfur through hampering humanitarian aid to  displaced persons. In the case of Uganda, the graph shows only the numbers of deaths in Uganda. Since the Lord’s Resistance Army moved from Uganda to the DRC, the Central African Republic and Southern Sudan some time after the warrants were issued, casualties largely occurred in the neighbouring countries.

Numbers of killings reported in the Darfur conflict according to Méndez

So, what do these facts tell us about the potential deterrent effect of international trials in conflict situations? There are arguments supporting both sides of the debate. The truth is, at least in the case of the ICC, it is probably too early to tell. The effectiveness of deterring particular conflict actors depends on the strength of overall deterrence, meaning on the number of people that have so far been effectively indicted, arrested and sentenced. Since the ICC is just about to finish its first trial, we would not yet expect to see the full results of deterrence. The deterrent effect of criminal justice might be systematically underrated as long as overall deterrence does not kick in.

As mentioned, deterrence relies on at least a bounded rationality of potential perpetrators in order to work. While the commanders of the parties involved in a conflict are arguably taking rational and goal oriented decisions to organise the large scale of atrocities, followers can be intoxicated or motivated by blind hatred or hedonistic urges when committing crimes. In other cases, they might be fighting for bare life and thus not react to deterrence. Since the rank and file is prone to act irrationally, deterring them might be more difficult. These are some of the difficult questions we have to take into consideration when evaluating the claims surrounding deterrence in international criminal law.

Posted in Darfur, Deterrence, International Criminal Court (ICC), Southern Sudan, Sudan, Uganda | Leave a comment

The Death of Gaddafi and the “Injustice Cascade”

Posted on October 23, 2011 by Mark Kersten

Is this the face of "justice"?

Many a practitioner, scholar and layman has argued that we live in a world where holding leaders accountable for committing international crimes – genocide, war crimes and crimes against humanity – has become a norm. The world has no place for impunity. Humanity and the international community, so it goes, no longer question whether to pursue justice and individual accountability for leaders like Muammar Gaddafi, Slobodan Milosevic or Charles Taylor, but how to achieve it.

Kathryn Sikkink has dedicated much of her academic life to communicating precisely this type of narrative. According to Sikkink there exists what she calls a “justice cascade” – the apparent increase in holding individuals accountable in states transitioning to democracy. Through this idea of the “justice cascade”, Sikkink is saying that, one, we increasingly expect and pursue individual accountability and two, that we indeed should. In short, holding individual leaders who commit large-scale human rights violations accountable is an entrenched element of international politics – it has become a norm.

Last night I had the opportunity to attend a keynote speech given by Sikkink, addressed to a crowd of international relations theorists at the annual Millennium Conference. In the address, Sikkink promoted her new book, bearing the name of her above-stated hypothesis: “The Justice Cascade”. In the question and answer period, Professor David Chandler challenged Sikkink by suggesting that actual state practice points to precisely the opposite of a “justice cascade” and, in fact, rather approximates an “injustice cascade.”

In his challenge Chandler summarized a rather disturbing trend in international criminal justice: Milosevic was given a trial, and while critics have exposed some flaws in the trial, Milosevic’s was largely a fair trial in the sense that he was given the opportunity to argue his case. Subsequently, in 2004/2005, Saddam Hussein was put on trial in Iraq, a process that is largely recognized as having been little more than a sham trial. His hanging, the result of a death penalty handed down to him by the Iraqi tribunal hearing his case, is often criticized as having denied Hussein the opportunity to demonstrate how the US had cooperated with him in the past. Of course, we now have Gaddafi who never reached the courtroom, despite having been captured alive.

My question is simple: does this trajectory suggest a knee-jerk reaction and challenge to the so-called norm of individual criminal accountability?

As I have argued previously, it is worth wondering – and being concerned about – whether the killing of individuals like Osama bin Laden and Gaddafi, as well as the dramatic increase in the use of drone strikes by the US is symptomatic of a shift in practice towards eliminating enemies rather than bringing them to the dock. What has disturbed many observers more than anything about this growth in extra-judicial killings is that it is being framed as “justice” and thus brings the “justice” served by assassinating and killing enemies into the same moral space as the “justice” served by holding individuals to account by trial for their role in orchestrating and perpetrating atrocities. Continue reading →

Posted in International Criminal Court (ICC), Justice, Libya, Libya and the ICC, NATO, Osama bin Laden, Osama bin Laden and international law, Slobodan Milosevic, The Tripoli Three (Tripoli3) | 8 Comments

Gaddafi’s Death: What now? What Justice?

Posted on October 20, 2011 by Mark Kersten

Gaddafi is dead (Photo: Gaddafi: Our Best Enemy)

When Col Muammar Gaddafi said earlier this year that he would “fight to the death” in the face of the revolution taking place in Libya, he wasn’t joking around. Flashing across the screens of virtually every news program today have been images of the fallen dictator who died today after his last Libyan holdout of Sirte fell.

Gaddafi, as readers of JiC will know well, was being pursued by the International Criminal Court. His death – once independently verified – will bring the ICC’s investigation into his role in the brutal oppression during the Libyan “Arab Spring” to an end. His death also saves the West and Libya from dealing with some very difficult questions and embarrassing revelations. But is it justice?

The NTC Celebrates Tonight

For Libya, it makes the question of holding Gaddafi to account a moot point. The country’s National Transitional Council (NTC) had said it would try Gaddafi in Libya, something met with skepticism by many in the human rights and international law community. With his death, the pesky question of how and when to try Gaddafi is irrelevant.

It is also important to remember that key members of the NTC were very close to Gaddafi during his brutal rule. Some of their shady secrets will now surely lie with their former boss, six feet under.

A fighter loyal to Gaddafi lays, killed near the drain pipe where Gaddafi allegedly was found hiding (Photo: AFP)

However, killing Gaddafi may have been a missed opportunity to demonstrate – to Libyans and the world – that the rule of law would be a cornerstone of the new, post-Gaddafi Libya. While throngs of Libyans are understandably elated with news of their tyrant’s demise, they would surely have been similarly thrilled to see him in the dock, facing his victims.

The West Sleeps Well Tonight

For the international community, particularly Western states, there’s little doubt that they would find some comfort in knowing Gaddafi will never be in the dock. The dreadful irony of the conflict in Libya is that precisely the same states that have intervened to remove Gaddafi from power on behalf of humanity had been responsible for propping up his regime for years. These Western states have artfully dodged any serious scrutiny into their role in ensuring that Gaddafi had the military, political and economic capacity to oppress the people of Libya. Further, the conflict has shed light on serious breaches of conscience by the US and the UK in particular.

By killing Gaddafi, the obvious truth is that he will never appear before any court to defend his actions or to explain them. He will thus never have the chance to disclose how so many of the weapons and so much of the money he had, he received from the West. Moreover, Gaddafi’s death will, in the popular imagination and amongst most Western polities, close the book on Libya’s transition and, in so doing, put to rest any public scrutiny into the West’s role in pre-revolution Libya.

Libyans celebrate Gaddafi's demise (Photo: AFP)

What Really Happened?

The amount of contradictions in accounts regarding Gaddafi’s death are worrying. While the videos proliferating around the internet have not been independently verified as authentic, they do appear to confirm that Gaddafi was captured alive. They also squash any notion that he was being taken in an ambulance to be treated. Most worryingly, the videos show Gaddafi being kicked and dragged through the streets of Sirte – whether dead or alive, it’s not clear. Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Middle East, Osama bin Laden, Osama bin Laden and international law, The Tripoli Three (Tripoli3), United Kingdom, United States, War crimes | 8 Comments

Revisiting the Peace-Justice Debate in northern Uganda

Posted on October 18, 2011 by Mark Kersten

LRA leader Joseph Kony surrounded by senior LRA combatants. This photo was taken as peace negotiations to resolve the conflict in northern Uganda were ongoing.

Perhaps no nation has witnessed so impassioned a debate on the relationship between peace and international criminal justice as Uganda. Northern Uganda, a case many believed the Court could “cut its teeth” on, sparked a fierce discussion, popularly referred to as the “peace versus justice debate”. This debate not only animated domestic politics but also the international discourse grappling with the effects of pursuing international criminal justice on the establishment of peace.

The debate on the relationship between peace and justice largely remains harshly dichotomous and black-and-white. Either international criminal justice fundamentally disrupts the potential for creating peace or it is an absolute necessity for it. The attempted middle-ground which calls the peace-justice dichotomy “false” rarely offers any explanation as to why it’s false. Northern Uganda may beour best opportunity to move beyond the rigidity of the peace versus justice debate. This post is an attempt to explain why this is the case by making two broad arguments: first, that the effects of the ICC on narratives regarding the dynamics and causes of conflict has profound implications on attitudes towards the relationship between peace and justice; and second, that the effects of the ICC on pre-negotiation dynamics as well as on negotiations themselves are distinct and should be analyzed as such.

On Narratives, Justice and the Dynamics of Conflict

The LRA are vile and brutal terrorists led by a mystical and crazed socio-path, named Joseph Kony. They have waged an atrocity-ridden war against a legitimate, democratic government with a liberal economy and which is a trusted regional partner in the war on terrorism. In a nutshell, that is the mainstream narrative of the 25-year old war in northern Uganda. It combines grains of truths and blatant misrepresentations, but I’ll be damned if it doesn’t sound convincing. This narrative clearly lays out who is to blame, who is guilty and who we ought to support. But it simply does not resonate with the people of northern Uganda nor reflect their lived experiences. It also does not make much sense to those who have critically examined the conflict between the government and the LRA.

An Acholi child plays with an old bicycle in one of Uganda's internally displaced camps (Photo: Thomas W Morley)

There is zero doubt that the LRA have conducted war with the most vicious and egregious tactics. This is beyond contention, even amongst the harshest critics of the ICC’s involvement in Uganda. Adam Branch, an outspoken opponent of the Court’s role in the conflict, has maintained that the LRA is guilty of “terrorist subjugation” and “unambiguously evil” and is “synonymous with a reign of terror against children”. Yet, it is impossible to study the subject and not come across vivid accounts of government atrocities and human rights abuses. However, to date, there is no evidence that these crimes have been properly investigated by the ICC’s Office of the Prosecutor.

It may be that many (although not all) of the government’s worst violations of international criminal law were committed prior to 2002, beyond which point the ICC cannot investigate. This, however, brings up its own political problem for the ICC: should the Court investigate crimes committed in conflicts with origins and dynamics reaching far before 2002?

As I have argued before, the ICC should think twice about investigating situations with roots long before July 1st 2002. If the ICC is understood as an institution which needs both legal and political legitimacy in order to be successful, investigating only the last bits of a conflict may be a recipe for disaster. It may make sense to international lawyers and diplomats in their New York offices that ICC investigations of events prior to July of 2002 are impossible. But it is nothing short of arbitrary to the citizens of northern Uganda. Surely that matters.

The result of the decision by the ICC to intervene in a complex conflict which long precedes 2002, and not investigating the Government of Uganda has played into the misinformed narrative outlined above. The LRA, in this context, are not only brutal terrorists but international criminals fighting against an internationally supported government. The attention brought by the Court’s involvement in the situation in Uganda and especially its arrest warrant for Kony were no doubt important in drawing the attention of otherwise disinterested parties to the conflict. But in the world of conflict resolution, starting with an inaccurate premise of the nature and dynamics of a conflict is surely a recipe for failure.

LRA rebels in "the bush"

Before and After: Justice and Peace Negotiations

How does justice affect the possibility of getting warring parties to hold official peace talks? How does it affect what happens at the negotiating table? It is my contention that, while the “peace versus justice” debate paints no distinction, these phases in a peace process are affected by the pursuit of international criminal justice in clearly different ways. Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Peace Negotiations, Peace Processes, Peacebuilding, Transitional Justice, Uganda | 8 Comments

US Sends 100 Troops to Uganda to Hunt Kony: Some Thoughts

Posted on October 16, 2011 by Mark Kersten

LRA leader, Joseph Kony

Late last week, President Obama informed the Speaker of the House of Representatives, John Boehner, that he had ordered 100 troops to be deployed to Uganda with the mission of “removing” the Lord’s Resistance Army leader Joseph Kony from the battlefield. The announcement has sparked quite a bit of confusion about why Obama would choose to deploy these troops now and what it means for American foreign policy as well as the war against the LRA. The ensuing response from media outlets and observers has been a number of contradictory statements most of which ignore key questions surrounding America’s latest African foray. This is a rough attempt to enter the fray and bring up some issues that have been neglected in opinions offered so far.

A Contradiction of Responses

On the one hand, some have said the provision of troops is unusual and remarkable. The Independent has a piece which characterizes Obama’s decision as a “surprising intervention.” Max Fisher maintains that it is a small but important shift in US foreign policy, because the Obama administration doesn’t have security interests in Uganda. As Fisher sees it, the US has no interests in what happens to Kony since the LRA “could go on killing and enslaving for decades — as they well might — and the American way of life would continue chugging along.” Others argue that Obama’s decision is symbolic of a new interventionist attitude with the finger prints of “liberal hawks” – Secretary of State Hilary Clinton, US Ambassador to the UN Susan Rice, and adviser Samantha Power – all over it. In contrast, Joshua Keating believes Obama’s “announcement is actually a bit less than meets the eye” given the long-standing cooperation between the US and Uganda in regional military affairs.

So, who is right? Does this mark an important shift in the “hunt for Kony” or is this just another unremarkable development? My short answer is that it’s impossible to tell at this time but a healthy dose of skepticism is warranted. There are more questions to be asked at this point than answers to be given.

It is important to place Obama’s decision in context. The US recognizes the LRA as a terrorist organization and consequently views the Government of Yoweri Museveni as an important ally in the Global War on Terror. As such, the US has provided tens of millions of dollars worth of military “aid” to Uganda and “non-lethal military training”, which the Ugandan government has used not only to fight the LRA but to engage in areas where the US has resisted engaging in militarily, notably Somalia. As Matt Brown of the Enough Project concedes:

“The U.S. doesn’t have to fight al-Qaida-linked Shabab in Somalia, so we help Uganda take care of their domestic security problems, freeing them up to fight a more dangerous – or a more pressing, perhaps – issue in Somalia. I don’t know if [the Enough Project] would necessarily say that but it’s surely a plausible theory.”

The timing of Obama’s announcement was quite interesting and may be indicative of shifting political tides in Uganda. Acting Foreign Minister Henry Okello Oryem maintains that Uganda has been asking for US assistance for 20 years. So why did they manage to get it now?

US training session in Nairobi, Kenya

Hey G.I. Joe – Welcome to Uganda but Don’t Slip on the Oil

Uganda has recently found large oil reserves in the country and in recent months, President Museveni has tightened his grip on an emerging industry which, estimates suggest, may produce between 2.5 billion  to 6 billion barrels of oil. Uganda’s oil has been directly linked to the country’s security. According to an astute report in Uganda’s Independent, ‘Oil Could Cause War‘, significant deposits of oil in the Western part of the country are close to LRA-active regions of the DRC. Further, a WikiLeaks cable (dated March 13, 2008) describes a request by the Ugandan government to the US government “for assistance to train and equip a lake security force which could enforce Uganda’s territorial waters, protect Uganda’s oil assets, and reduce violent incidents.” While it was almost entirely ignored, allowing commentators like Fischer to conclude that the US has no interests in Uganda, it would not be surprising if oil played an important role in the US government’s decision to send troops to Uganda. As the co-director of Foreign Policy in Focus, Emira Woods, stated:

“It goes back to one thing: oil. Lets remember Uganda has oil. It changes the calculus always with US foreign policy when it is a country that seems to be rich with this resource that has become almost an addiction for the US and the global economy.”

Be Careful: This is No Easy Mission

Don’t expect miracles just yet. Even if we discount reports that Kony is in Darfur (something former LRA rebel commanders confirmed to me), the areas of South Sudan, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), where he may be, has amongst the least developed infrastructure and is perhaps the most lawless region in the entire world. While early reports suggest that the troops may travel outside of Uganda (something they would have to do to track Kony), it’s important to remember that they will need agreements with neighbouring states – not just Uganda – to do so. While the four LRA-affected countries have agreed to work together to fight the rebel group and appeared to welcome the decision to deploy American troops, it’s not yet clear to what extent US soldiers will be allowed operate on their soil. Additionally, the mainstream narrative which calls Kony a “lunatic”, “mystic” and a “bizarre terrorist” belies the LRA’s remarkable ability to avoid capture and death for almost thirty years. Getting one hundred troops into LRA affected areas to find Kony is like expecting to find a needle in a hay stack. Continue reading →

Posted in Economics of Conflict, Justice, Lord's Resistance Army (LRA), Uganda, United States | 11 Comments

ICC Complementarity, Positive Peace and Comprehensive Approaches in Transitional Justice

Posted on October 13, 2011 by Patrick Wegner

Dealing with the legacy of violent conflicts is full of challenges. The photo shows human bones and skulls of victims of the Khmer Rouge in Cambodia. (Heng Sinith/Associated Press)

Even though much of the literature on Transitional Justice still focuses on unhelpful dichotomies like peace versus justice or trials versus amnesties the concepts that are being applied to tackle the legacies of violent conflicts in practice are increasingly comprehensive. With comprehensive approaches I mean transitional justice concepts that acknowledge the need for different approaches to meet the various challenges that societies in transition from conflict face. Key issues that are often named in the context of transitions from conflicts are reconciliation, reintegration, accountability, creating a historical record, meeting the needs of victims etc. Recognising these issues and dealing with them is seen as important to advance towards a durable peace. This approach is in line with the notion of positive peace originally introduced by Johan Galtung.

Positive peace is more than the absence of violence. It also takes into consideration in how far the root causes of conflicts have been tackled and whether the relationship between former conflict parties has become constructive instead of confrontational. Still, there is no consensual definition of positive peace. Scholars agree that positive peace is incompatible with all forms of terror, atrocities and arbitrariness. In its widest definitions it excludes all forms of personal or structural violence and demands justice, integration and satisfaction of the fundamental needs of the people. To meet this threshold of positive peace, the issues of reconciliation, accountability and so on mentioned above have to be dealt with. This is increasingly being recognised by international actors like the United Nations. For example, then Secretary-General Kofi Annan stated in his report on ‘The rule of law and transitional justice in conflict and post-conflict societies’:

‘Our experience confirms that a piecemeal approach to the rule of law and transitional justice will not bring satisfactory results in a war-torn or atrocity-scarred nation.’

Kofi Annan was among the first international actors to acknowledge the need for comprehensive approaches to transitional justice

When it comes to meeting the needs of societies emerging from conflicts, most authors agree today that particular mechanisms are more suitable to meet specific needs. For example, a well conducted truth commission with a comprehensive and widely circulated report is probably better suited to contribute towards creating a truthful historical record of past abuses and conflicts than a criminal trial. After all, the decision whether information on past abuses is included in the courtroom is taken on the basis of whether it contributes towards clarifying a particular case and not in how far it represents a historically correct picture. Accountability on the other hand is arguably better delivered by formal judicial proceedings that end in a verdict or an acquittal. As a consequence, it is becoming increasingly clear that focusing on a single transitional justice mechanism, like only having trials or only declaring an amnesty, is not enough. The situation in northern Uganda serves as a useful example how such comprehensive concepts of transitional justice could work in the future. Continue reading →

Posted in Amnesty, Complementarity, International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Traditional Justice Mechanisms, Transitional Justice, Truth and Reconciliation Commissions, Uganda | 4 Comments

South Asia’s First War Crimes Criminal Tribunal

Posted on October 11, 2011 by Mark Kersten

JiC is happy to welcome Dawood Ahmed as a guest-poster. Dawood is a Solicitor (non-practicing) and a research associate at the Center on Law and Globalization. In his first post at JiC, Dawood introduces some of the key challenges facing the International Crimes Tribunal of Bangladesh. Enjoy!

Jamaat-e-Islami leader Delwar Hossain Sayadee, center, leaves the International Criminal Tribunal for Bangladesh (Photo: AFP/Getty Images)

As the eyes of the international justice industry focused on Syria and Libya in these past few months, a rather important development in South Asia has remained under-discussed. After much delay, the aptly named International Crimes Tribunal of Bangladesh has this week charged its first suspect, Delwar Hossain Sayadee, with alleged war crimes committed during the country’s 1971 civil war, a conflict that eventually led to the secession from then West Pakistan (present day Pakistan).

For those unfamiliar with the history of Bangladesh, the country existed until 1971 as the eastern flank of Pakistan. During the independence war of that year, widespread inter-ethnic atrocities including rape, murder, arson and torture were carried out against the population of Bangladesh (or East Pakistan at the time); although in most cases, the main protagonist was the West Pakistani army and its ‘Razakar’ allies, it is true that the Mukti Bahini (Bengali liberation fighters) and their Indian supporters too carried out a significant number of atrocities against those of non-Bengali descent. While total estimates of numbers killed range between 26,000 (per Pakistani sources) and 3 million (per Bangladeshi sources), historians now generally agree that what transpired in those nine months of civil war can be labeled as genocide.

The tribunal has been established to try those who committed war crimes during that bloody conflict.

From a policy perspective, the tribunal is of particular interest because it marks a first in two important respects: it is not only the first war crimes tribunal to ever be established in a Muslim majority country but it is also the first such institution in all of South Asia, a region that is home to many under-reported but systematic human rights violations; examples being the Indian army’s suppression of the Kashmiri independence movement, Pakistan’s repression in Baluchistan and Sri Lanka’s human rights violations during its civil war against the LTTE.

Nevertheless, for all of its promise of setting a regional precedent, one must approach the issue of the court with a healthy dose of skepticism.

The initial criticisms leveled against the tribunal are many. First, there is the question of a less than transparent policy reversal: after the 1971 civil war, opportunities did indeed arise for trying those suspected of committing war crimes but these were deliberately forgone in the interests of achieving sovereign recognition and peace: 195 surrendered Pakistani officers were identified as suspected war criminals but were later repatriated to Pakistan without charge as part of a bilateral political compromise (Shimla Agreement) agreed between India and Pakistan. Continue reading →

Posted in Amnesty, Asia, Bangladesh, Human Rights, Justice, War crimes | 2 Comments