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

Justice and Diamonds in Zimbabwe: Saving Kimberley from Itself

Posted on October 10, 2011 by Mark Kersten

Andrew Jillions joins us again to discuss the Kimberly Process of diamond certification in the context Zimbabwe. As Andrew explains, the case of Zimbabwe risks undermining a process which, for all its faults, remains the best way to prevent the use of diamonds to fuel conflict and human rights abuses.

Zimbabwe Kimberly Process

(Photo: Goran Tomasevic/Reuters)

For all the progress that has been made in enforcing international justice, there’s plenty of work still to do in making sure institutions designed to advance human rights protection actually do so. In this guise, look out for a ‘rolling set of salvos’ to be delivered in the coming weeks against the Kimberley Process by civil society groups. (The Kimberley Process (KP) is a joint initiative by governments, industry and civil society to halt the flow of conflict diamonds, instituting a certification scheme (KPCS) that imposes requirements on its members to enable them to certify shipments of rough diamonds as ‘conflict-free’).

The opening shot was the walk-out of the last meeting in June and the decision to boycott the upcoming plenary meeting. The trigger for this has been the organisation’s approval of the sale of diamonds from Zimbabwe’s Marange region, where there is evidence of widespread and systematic killings and “torture camps” run by the security services. This excellent Panorama documentary provides a harrowing account of this, as well as a depressing picture of the limits of international justice.

Zimbabwe Mugabe

President of Zimbabwe, Robert Mugabe (Photo: Ed Betz/AP)

The current saga goes back to a roundly criticized November 2009 report by the KP’s man in Harare. Despite the evidence to the contrary, it concluded that there had been a ‘visible and verifiable’ improvement in the government’s record of compliance. Revealingly, as far as the KP was concerned, the fact that a review took place at all was occasion to celebrate. The effect of the report was first to allow two auctions of Marange diamonds in August and September 2010, and more recently to unilaterally lift the ban on Marange diamonds, despite opposition from the EU and US. This stamp of legitimacy opened the door to selling Marange diamonds on the open market. And things are moving quickly: the KP has since certified more than $200 million of Marange diamonds, with estimates that the decision will generate something like $334 million over the course of this year. Continue reading →

Posted in Economics of Conflict, Human Rights, Justice, Kimberly Process, Zimbabwe | 2 Comments

No Surprise: Why Libya but not Syria

Posted on October 6, 2011 by Mark Kersten
Syria justice

That the UN Security Council was unable to pass a resolution condemning Syria's crackdown on civilians may be disappointing but, sadly, comes as no surprise (Photo: AFP)

Despite high rhetoric being flung across the Security Council yesterday, Russia and China’s vetoing of the European-drafted resolution condemning Syria’s brutal crackdown on civilians should come as no surprise.

There are a number of political-tuned reasons to explain why this Resolution failed. The first relates to the disappointment and anger expressed by China and Russia at the intervention in Libya. Both have largely been shut out of any post-Gaddafi economic windfall and it is quite clear that they did not want to see a repeat performance. Second, unlike the case of Libya, there is very little regional support for any intervention – legal, military, economic or political – in Syria. In Libya, the Arab League, along with key African states initially stood behind the momentum to stop Gaddafi. Even key Libyan diplomats supported Western intervention. This regional support created an irresistible opportunity to create a new partnership with the Arab League and regional states through a common military and political engagement. This has not been the case in Syria. On the contrary, while Russia’s and China’s vetoing has garnered the most attention, the abstention by Syria’s neighbour, Lebanon (which holds the presidency of the Security Council) was just as illuminating.

Apart from these key differences in the dynamics of the cases of Syria and Libya, there is another, more nuanced issue to consider. Why is it that anyone would, indeed, expect UN Security Council member states to successfully agree to condemn or sanction Syria? The answer seems to me to be that there is a prevalent belief that because it happened in Libya, it was feasible for it to happen in Syria. This, however, relies on seeing Libya as a moment of fundamental change, rather than as an outlier, in the practice of international politics.

The extent of upheaval caused by the ‘Arab Spring’ is beyond doubt. But many (myself included) translated the social and political change in Tunisia, Egypt, Libya, Yemen, Bahrain and so on, into change in the behaviour of the world’s most powerful states. This didn’t appear to be a stretch: the citation of the Responsibility to Protect and the unanimously supported referral of Libya to the ICC were remarkable. Surely, this represented a new dawn in international politics and international justice! Continue reading →

Posted in Bahrain, China, Crimes against humanity, Egypt, Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Russia, Tunisia, UN Security Council, Yemen | Leave a comment

Broadening Horizons: Ecocide, Famine and the “Other” Crimes

Posted on October 4, 2011 by Mark Kersten

If you can’t see it, it can’t and doesn’t really matter that much. That seems to be the attitude of many of us to key issues of international concern. Take for example, a core contradiction in many people’s hesitation to support the adoption of a carbon tax to combat climate change: it’s fine to tax the trash we put out on the curb, but it’s not fine to tax the trash we put in the air.

The state of international criminal law privileges direct forms of violence. This is an extension of the dominant understanding of peace as negative peace, the absence of large-scale, direct forms of violence. The holy trinity of international crimes – war crimes, crimes against humanity and genocide – constitutes physical violence perpetrated against victims.

While the criminalization of some acts which “shock the conscience of humanity” is surely one of the most important developments in contemporary international politics, it has, perhaps inevitably, come at the expense of more structural or indirect forms of violence. Famine becomes something to support with donations and sympathy but not an issue for which anyone can be held responsible. Neglecting to protect vulnerable populations in the wake of environmental disasters becomes a challenge for humanitarian aid rather than an issue of criminal neglect. The real and potential destruction of peoples’ livelihood through environmental degradation becomes a matter of business, job-creation and green politics and not a matter of justice – even when it risks eviscerating entire nations.

Indeed, what about the more silent killers which threaten the life and livelihood of millions of people?

There are those who have begun to challenge the monopoly of international crimes as direct forms of violence. This past week in London, a mock trial was held at the British Supreme Court where top lawyers played out two cases: one concerning the extraction of oil in Canada’s notorious tar sands and one regarding BP’s disastrous oil spill in the Gulf of Mexico. The charge? Ecocide, defined by its most forceful champions, Polly Higgins as:

“The extensive damage, destruction to or loss of ecosystems of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

Burma crime against humanity

(Photo: AFP/Getty)

While the notion of ecocide is an attempt to criminalize large-scale environmental degradation, it is critical to highlight, in this context, how environmental degradation can create human death and suffering. This is not to be anthropocentric. But a much under-examined reality within international justice is the indirect, structural violence that is inflicted when states shirk their responsibilities to protect citizens from the effects of environmental trauma – whether from ecocide or natural disasters.

Continue reading →

Posted in al-Shabaab, Burma/Myanmar, Crimes against humanity, Ecocide, Environment, Famine, Human Rights, Justice, North Korea | 4 Comments

Self-Referrals and Lack of Transparency at the ICC – The Case of Northern Uganda

Posted on October 4, 2011 by Patrick Wegner

Press conference during the Rome Conference at which the ICC Statute was adopted

Nobody could know for certain how the International Criminal Court would work in practice when the Rome Statute was adopted in 1998. The first surprise was the speed at which the Statute was ratified by the 60 states necessary for the treaty to enter into force. The required number of states parties was reached already on 11 April 2002. Another surprise was how fast the ICC was confronted with its first cases and the way these cases were referred to the Court. The first three situations in Uganda, the Democratic Republic of Congo and the Central African Republic were so-called self-referrals; they were referred to the Court by the respective states themselves. The Rome Statute is not explicit about the possibility of these self-referrals (see Article 14). The modus operandi for state referrals foreseen in the Rome Statute was rather one of states parties referring cases of other states parties to the court. For a helpful discussion of the legal issues arising from these self-referrals please refer to this article by Payam Akhavan.

The emergence of self-referrals as an unexpected trigger for ICC investigations has led to some problems. This is particularly true as the Chief Prosecutor encouraged these self-referrals to obtain state cooperation. The fact that a state invites the ICC to investigate crimes committed on its own territory might raise questions concerning the ICC’s independence if these investigations are not handled extremely carefully. After all, why should a state invite the ICC to investigate if this entails negative repercussions for the very government which invited the Court? The suspicion that the government in question has cut some kind of deal with the ICC is quite natural for those who do not trust the independence of international institutions. Unfortunately, Uganda is a case in point for the problems that arise from self-referrals.

First of all, the Chief Prosecutor took the unfortunate decision to announce his investigations in Uganda side by side with the Ugandan President, Yoweri Museveni, despite the national army and the government being accused of having committed atrocities during the Lord’s Resistance Army conflict in northern Uganda. This led to immediate doubts about the independence of the ICC among the local population. Many thought that the ICC was indeed a tool for the Government of Uganda to mobilise international support against the LRA. The Chief Prosecutor quickly declared that he is independent in his investigations and would investigate all parties in Uganda, a statement that did not convince the local population.

Uganda's President Museveni took the decision to refer the LRA conflict to the ICC. UN Photo / Mark Garten

The initial mistake of announcing investigations at the side of one of the conflict parties could have been redeemed in the course of the investigations by showing that the ICC is committed to thoroughly investigate both parties. Unfortunately, the Office of the Prosecutor (OTP) has so far largely failed to convincingly demonstrate that it has indeed investigated allegations against the Uganda People’s Defence Forces (UPDF) and the Government of Uganda. To be fair, the situation in northern Uganda is highly complicated and it is not an easy task to carry out independent investigations that satisfy the local population in this context. First of all, some of the most serious atrocities the UPDF is accused of having committed took place in the late 1980s, when the UPDF was still the National Resistance Army (NRA). There were extensive human rights violations in northern Uganda when the NRA moved to the north in pursuit of the remnants of Milton Obote’s army, after taking power in Kampala. Additionally, there were reports of extensive cattle rustling, extrajudicial killings, beatings, rape, torture and some massacres committed against the civilian population that was seen as being supportive of the former army chased out of Kampala by the NRA. The most notorious massacre attributed to NRA forces during that time is the Mukura Massacre during which the NRA allegedly herded civilians into train wagons which they later set on fire. It has taken the ICC a lot of work to explain to the local population that the Rome Statute only allows investigations of crimes committed after July 2002 and that those massacres can thus not be investigated by the ICC (see Mark’s earlier post on this). Continue reading →

Posted in Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Uganda | Tagged , , , | 3 Comments

Handcuffed by Statehood: Justice and Palestine

Posted on October 3, 2011 by Mark Kersten
Palestine statehood

(Photo: AP)

Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas’ polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night.

It really wasn’t supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn’t still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is out of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established.

The Office of the Prosecutor has been busy, no doubt. But after two years, they remain mum on the question of Palestine (Photo: AP Photo/Evert Elzinga)

The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible…stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.”

To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC’s Rome Statute, after all, was negotiated by states. Nations only come under the Court’s jurisdiction if they refer themselves, are referred to the Court by the member states of the UN Security Council or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light.

Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Israel, Justice, Middle East, Palestine, Palestine and the ICC, United States | Leave a comment

(Ab)using International Law: Over-Extending the use of Crimes Against Humanity

Posted on October 2, 2011 by Mark Kersten

Abhimanyu George Jain is a graduate of the National Law School of India University (NLSIU), Bangalore, India where he developed a strong interest in public international law. In this post,  Abhimanyu shares with us his thoughts on the expansion of the use of “crimes against humanity” in the context of the Anders Breivik case and the possibility of prosecuting the Pope. 

Should the pope be charged with crimes against humanity?

(Ab)using International Law: Over-Extending the use of Crimes Against Humanity

Exhorting his generals to all sorts of depravities against the people of Poland, Adolf Hitler, once famously said, “who…speaks today of the annihilation of the Armenians?”

Fortunately for us, we live today in a world where we do “speak of the Armenians”. Today we talk in real terms of the possibility and desirability of prescribing and enforcing individual responsibility for the most shocking human acts; we talk of engineering the reunification of shattered societies into organic wholes through transitional justice.

As with any other developing skill and ability, however, familiarity breeds contempt, and contempt, misuse. The misuse I speak of is the inappropriate stretching of the concepts of international criminal law to situations and actions where they have no real role. In particular, I refer to two recent proposals concerning the application of crimes against humanity as defined under the Rome Statute – the first, in the case of Mr. Anders Behring Breivik, the Norwegian militant extremist; the second, in the case of he Vatican, as recently suggested by the Centre for Constitutional Rights (CCR). To be clear from the outset, neither of these proposals has even a reasonable chance of success. They do, however, represent the thoughts and actions of some academics and practitioners, and represent to some extent current understandings of these concepts.

I shall first briefly discuss these proposals, and then explain my grouse against them.

The Proposals

In the case of Mr. Breivik, news reports have suggested that Norwegian prosecutors were contemplating charging him with crimes against humanity for his recent militant actions. For certain obvious reasons, chiefly, the complete inapplicability of the international concept of crimes against humanity, this proposal was abandoned. First, the international concept of crimes against humanity as defined in Art. 7 of the Rome Statute of the ICC requires a ‘widespread or systematic attack’, which these attacks were not. Second, Art. 7 requires the perpetrator to be acting pursuant to an ‘organisational plan or policy’, which again was not the case. For an excellent analysis of this proposal, see William Schabas’ blog post, here.

The third concerns the not particularly novel suggestion that Vatican officials be tried under international criminal law for their role in covering up instances of sexual abuse by Catholic priests. In the latest such attempt, the CCR, acting on behalf of the Survivors’ Network of those Abused by Priests (SNAP), has requested the ICC’s Prosecutor to exercise his propriu motu authority under Art. 15 of the Rome against high-level officials at the Vatican. Again, this does not meet the definitional requirements of crimes against humanity. Post facto concealment, while definitely deplorable, does not meet the requirement of being ‘an attack directed against any civilian population’, ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. It seems quite clear that there is a definite requirement of overt involvement and control. This very basic objection is supplemented by reasonable questions concerning the authority of the ICC over the Vatican, a non-State entity which is not party to the Rome Statute. For an excellent analysis of the legal infirmities of this move, see Dov Jacobs’ blog post, here.

The Grouse

It might reasonably be asked: so what if it is a stretch? Reasonably, is it such a problem if these concepts are being adopted to the extent that efforts are being made to extend their application to other situations? Doesn’t this in some way represent an incorporation of international legal norms into municipal legal practice and everyday legal concerns, and, to that extent, an internalisation of international law?

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Posted in Crimes against humanity, Human Rights, International Criminal Court (ICC), Justice, Norway, Vatican | 4 Comments