Guest-Post at Opinio Juris: Libya and the “Peace versus Justice” Debate

Posted on July 9, 2011 by Mark Kersten

I have been honoured by the opportunity to write-up a guest-post over at the widely-read and respected international law blog, Opinio Juris, entitled “Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya” (click here to read it). The post is an attempt to measure various opinions of the impact of the ICC in Libya with actual evidence. Here’s a snippet:

“Virtually every argument in the peace-justice debate is logical, intuitive and, on some level, persuasive. The problem, however, is that not only are the arguments in the peace-justice debate contradictory; rather than reflecting realities on the ground or tangible evidence, they often reflect and privilege the convictions of individuals with particular political, moral and legal persuasions. Individuals on either side rarely examine evidence of particular cases, preferring instead to say that justice is absolutely necessary or absolutely problematic across contexts. Trying to find someone who believes pursuing international criminal justice helps in some cases and hinders in others would take a very long time…

…As it stands, we have literally zero evidence that the ICC warrants have determined or persuaded his actions. Gaddafi has not said, for example: “If it wasn’t for the ICC warrant, I would leave” or “A condition of peace is that the ICC drop its arrest warrant against me.” Even if he had made such claims, it would be impossible to ascertain whether they are meant sincerely or as a matter of rhetoric.

Instead, we know two things: first, the rebels won’t negotiate peace if Gaddafi remains in power. While the rebel’s National Transitional Council may accept Gaddafi living in Libya, they have been adamant that he leaves power, having rejected an African Union brokered proposal which included direct negotiations with Gaddafi. In other words, they refuse to negotiate a power-sharing agreement if Gaddafi is involved. The ICC cannot have a negative effect on a peace negotiation if the parties aren’t interested in negotiating in the first place…

…Based on the available evidence, this post has highlighted three key issues which undermine claims that the ICC has hindered the prospects for peace in Libya. First, the ICC’s intervention cannot affect the possible negotiation of a power-sharing agreement in Libya; the rebels simply have no interest in negotiating if Gaddafi is at the other end of the proverbial negotiating table. Second, the ICC has not affected Gaddafi’s options to receive exile or asylum. To date he has rejected all offers and, by all accounts, is willing to fight until he is captured or killed. Third, critics of the Court apportion blame on the ICC for ruining the political conditions necessary to negotiate peace but, by doing so, allow the Security Council, which is responsible for the Court’s role in Libya, to get off scot-free…

…This post is not intended to defend the ICC and its effects on the resolution of violent political conflicts. There is still much to be understood about the relationship between peace and justice. Many of the claims on both sides of the peace-justice debate are legitimate and need further scrutiny. There are real challenges to achieving international criminal justice and a cessation of violence at the same time. However, as the case of Libya illustrates, if the peace-justice debate is now a permanent feature of how we think about the tensions between pursing justice and conflict resolution, we should probably challenge the often simplistic, sometimes groundless, and usually ill-considered assumptions that are made in favour of real evidence, however intuitive they may be.”

Posted in International Criminal Court (ICC), Libya, Libya and the ICC, Peace Negotiations | Leave a comment

Buying Justice: The Supply, Demand and Cost of ICC Justice

Posted on July 9, 2011 by Mark Kersten
Buying justice

(Photo: The Mirror)

Imagine the following scenario:

Assume that the people of Libya and Syria are all represented by one individual each who is charged with requesting that the human rights violations and atrocities in their respective nations are investigated by the ICC. Since neither Syria nor Libya are members of the ICC, both of these representatives need to make their requests to the UN Security Council. Both representatives are sitting in the waiting room, preparing to make their case. It is decided that Libya will make its presentation to the Security Council first because their crisis occurred first and, well, everyone is itching to get rid of that embarrassing Gaddafi fellow. The representative makes his case and comes back into the waiting room with a big smile and says: “Success! Just got a resolution passed. The ICC’s going to investigate Libya!” At hearing these inspired words, the Syrian representative’s hopes rise. He thinks to himself: “if they refer crimes against humanity and war crimes in Libya to the ICC then they must refer the crimes in Syria too! After all, a crime against humanity is a crime against humanity is a crime against humanity.” The Syrian representative gets up and approaches the glass door to the Council. Right before he reaches it, however, a sign is flipped from “Open” to “Sorry, closed for business”. Furiously, the Syrian representative requests to know why he cannot give his presentation to the Council. Finally, someone takes him aside and informs him: “Look, they won’t tell you this to your face, but there’s no money to investigate crimes in Syria. All the money’s been spent.”

Of course, this story could never happen as I’ve described it. However, it conveys a key truth that is too rarely discussed: there is only so much money for justice at the ICC and it is running out.

The Council of Foreign Relations describes how the ICC is funded as follows:

“The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.”

In neither of the two cases referred to ICC by the UN Security Council (Sudan in 2005 and Libya in 2011) did the Council provide funding, leaving it instead up to individual member states to cover the costs.

Further, key members of the governing body of the Court, the Assembly of States Parties (ASP), consisting of the member-states of the ICC, have been reluctant, to say the least, to expand the Court’s budget. With the exception of the Netherlands’ rate of inflation, the ICC’s budget is intended to have zero growth from year to year.

Despite calls, little action has been taken to investigate alleged crimes in Syria.

The problem, then, is rather simple: the number of investigations and cases in front of the Court has grown but the Court’s resources to investigate and prosecute those cases remain stagnant. The danger looms: the Court may only be able to respond to some cases on the basis that it only has money for some and not other crises. But is it not morally reprehensible that money is a limiting factor in who gets justice?

Continue reading →

Posted in Crimes against humanity, Funding, Human Rights, Ivory Coast / Côte d'Ivoire, Libya, Libya and the ICC, Sudan, Syria, Transitional Justice, UN Security Council, War crimes | Leave a comment

Why the ICC should Think Twice before Investigating Conflicts with Roots Before 2002

Posted on July 5, 2011 by Mark Kersten

A UPDF soldier disperses a crowd of protestors during the post-election tensions in 2011 (Photo: Tony Karumba/AFP/Getty Images)

Many readers will know that I am spending three months conducting research on the effects of the International Criminal Court’s investigations and arrest warrants on the conflict between the Government of Uganda and the Lord’s Resistance Army (LRA). As previously elaborated in another post, I believe that the case of Uganda provides us with the best chance to understand the tensions between pursuing international criminal justice and conflict resolution. In 2003, the Ugandan President Yoweri Museveni referred the situation in northern Uganda to the ICC. A year later, the Court issued arrest warrants for four senior commanders of the LRA, including its notorious leader, Joseph Kony.

Over the past few weeks, I have had the opportunity to speak to numerous political, civil society, and religious leaders. My experiences have led me to be increasingly convinced that the Court should be wary of investigating situations which began long before the Court came into being in 2002.

The ICC’s Rome Statute is clear with regards to the temporal jurisdiction of the Court: no crimes under the statute which have occurred prior to July 1,2002 can be investigated by the ICC. For many of the Court’s interventions, this is largely unproblematic. The vast majority of the crimes committed in Darfur occurred after 2002; ditto for other situations, including Cote D’Ivoire, Kenya and Libya. In Uganda, however, the conflict between the LRA and the Government of Uganda began in 1986, over 15 years prior to the creation of the ICC and the date at which it can begin investigating international crimes.

This problem becomes only more acute because of allegations that many atrocities against the Acholi people of northern Uganda were committed by Ugandan military forces, the UPDF, during the conflict. Virtually every individual with whom I have spoken, regardless of whether they support the Court or not, has voiced their their concerns that the ICC is biased against the LRA. Many know about the limited temporal jurisdiction of the ICC but ask: why, then, is the ICC involved? As Adam Branch, amongst the most eloquent and thoughtful critics of the ICC’s role in Uganda, notes:

“given that the conflict reaches back to 1986, the ICC’s limited temporal jurisdiction makes the court a highly inappropriate vehicle for finding justice in response to this legacy of violence, especially since much of the most atrocious violence took place before 2002. Indeed, this time limit, while legally unassailable, has been criticized by a number of Acholi leaders and activists for establishing an arbitrary barrier that leaves the bulk of the war beyond the reach of justice.”

I can say with confidence that the above is an honest reflection of what those I have spoken to believe.

A child soldier in northern Uganda. The LRA has been notorious for abducting children who are then put at the front lines of their military efforts.

There are two fundamental dangers which the Court faces when it investigates situations with the life-span and dynamics such as the conflict in northern Uganda.

Continue reading →

Posted in African Union (AU), Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Peace Negotiations, Uganda | 2 Comments

US Negotiating with the Taliban: Bargaining with the Devil?

Posted on June 21, 2011 by Mark Kersten

(Photo: David Pohl)

This week’s news that the US is negotiating with the Taliban in Afghanistan may have come as a shock to some. It has, however, been part of a long and heated conversation about how to resolve the seemingly unwinnable war in Afghanistan (see here for a diverse set of opinions). The decision of whether to deal with the Taliban is also a paradigmatic case in the debate about whether we can negotiate with some of history’s most abhorrent perpetrators.

Why write about the US negotiating with the Taliban on a blog dedicated to issues of justice in conflict? The Obama administration’s decision to begin talks with the Taliban is a paradigmatic case reflecting the cross-roads at which we find ourselves: Who is a legitimate negotiating partner? Does principle trump pragmatism when it comes to negotiating with perpetrators of mass violence? Does morality come before politics? These questions are central to all contexts in which justice is pursued in active conflict as well as in post-conflict situations.

Here is a simplified, but hopefully informative, account of this debate:

Orthodox thinking on conflict resolution, most famously put forward by Roger Fisher and William Ury, suggests that everything is negotiable. There is no issue, scenario, or object that is beyond negotiation. In this view, everyone is a potential negotiating partner, no matter how ‘evil’. In violent political conflicts, even the most brutal and aggressive leaders may be necessary partners in peace negotiations. Indeed, if they aren’t included in the peace processes, such actors can become destructive ‘peace spoilers’ who seek to undermine any potential for the successful implementation of a peace agreement. In this sense, negotiations are meant to moderate violence and transform violent conflict. If potential parties to peace in a war remain isolated and outside of the peace process, they have no incentive but to continue fighting – either for their own survival or in order to nudge their way into the peace process.

Taliban Fighters. Would you negotiate with them? (Photo: longwarjournal.org)

Thus, the theory goes, such individuals must be negotiated with even if that means that they receive amnesty for crimes they have committed, and may require that they get a share of the material and political resources of a society through a power-sharing agreements. As I have argued previously, this has been the norm for much of contemporary history. Some of history’s worst leaders have been granted cushy retirement in exchange for their removal from positions of power.

Recently, this angle on negotiations has come under sustained attack. The human rights movement has been pivotal in the attempt to undermine the orthdoxy of everything being negotiable. Instrumentalizing powerful labels such as “genocidal”, “evil” and “like Hitler”, the international human rights movement, and its international criminal justice wing in particular, has declared that there are some people who simply cannot be negotiated with; they are too “genocidal”, “evil” and “like Hitler”.

There are important drawbacks to negotiating with particularly vile adversaries. Bargaining with them risks rewarding and legitimizing their violence. If they had not been so successful in committing violence, they wouldn’t be in a position to negotiate. More commonly, it is seen as morally abhorrent: it is unjust to negotiate with individuals who commit atrocities against civilians and even more wrong to grant them amnesties or positions of power.

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Posted in Afghanistan, Human Rights, Justice, Pakistan, Peace Negotiations, Taliban, United States | 2 Comments

Bashir to Visit China, US endorses it: But What Does it Mean?

Posted on June 19, 2011 by Mark Kersten

Chinese President Hu Jintao with Bashir

While Sudan’s President Omar al-Bashir won’t be visiting Malaysia due to “other engagements,” it looks very likely that he will, in fact, be visiting China. The Chinese Foreign Ministry has confirmed that Bashir, wanted by the ICC for his role in the crisis in Dafur, would visit later this month. The US has implicitly supported the decision.

That Bashir is seeking to make an official visit to another country, despite the ICC arrest warrant against him is, of course, nothing new. But, for a number of reasons, his upcoming China visit is much different than his foreign forays to Kenya, Chad, Djibouti and so on.

This post is an attempt to examine this potential trip in the context of the relations between all four key actors involved: China, Sudan, the ICC and the US.

China and Sudan

If Bashir visits China, it will be the first time since the warrants were issued that he has visited a member-state of the UN Security Council. Implicit in this is the fact that this will also be the first time he visits a state with international power of this magnitude . He will also be visiting one of the single largest investors in Sudan, especially when it comes to oil (see also here). There is a general trend – little analyzed and rarely considered in mainstream coverage of Chinese relations in Africa – that China often increases its dealings with states that the West has deemed illegitimate economic and political partners. China does not face such pressure. This is, at least in part, due to China’s repression of domestic human rights groups combined with the fact that its human rights advocates, understandably, focus on domestic respect for human rights. In short, this means that little focus is left for questionable international dealings by China. As such, it appears that every time the “West” closes up shop in states which fail to protect their own people, China sees an opportunity. This reality and the economic relationship between China and Sudan is central to any informed discussion on Bashir visiting China and future peace in Sudan – both in Darfur and between the South and North.

Bashir and Jintao

For China, the calculus seems pretty simple. It wants to protect its investments in China. To do so it needs two things. First of all, it needs good relations with the government. Second, and something rarely conceded by critics of Chinese foreign policy, it needs peace. With the exception of war economies, it is never good to do business while bullets fly and bombs fall. As the US State Department spokesperson rightly noted with regards to the visit and China’s privileging of economic interests over peace:

“it’s hard to have money and oil when there’s no peace.”

In a statement a Chinese Foreign Ministry spokesman said that:

“China would like to play a positive role in promoting Sudan’s peace and reconciliation, boosting the implementation of the Comprehensive Peace Agreement and safeguarding regional peace and stability”

This is very much true but omits: “…because our investments depend on it.”

China’s role in the international community is at a cross-roads. Its ventures into Africa, impressively chronicled by Chris Alden, have brought its traditional principles of national sovereignty and non-intervention into conflict with its increasingly overt political role. While the country’s advocacy of these principles may have always been more “myth than reality”, China will not be able to escape questions as to its increasingly frequent and ever-more politically intrusive international forays.

China and the ICC

The common view in the West is that China is a country to be weary of. There are uninformed undertones of paranoia that China will take over the world and destroy the liberal, democratic and human rights-respecting international system the West has painstakingly built following WWII. Much of this comes from a displacement of attitudes following the Cold War. The West, especially the US, no longer had an arch-enemy. Little understood and ever-growing, China presented – and continues to present – a perfect target for the politics of fear.

Drawing on these conceptions of China, there is a prevailing view that China is fundamentally opposed to the International Criminal Court. This popular presumption of China’s attitude feeds on the mainstream accounts of human rights violations in China, of which there are undoubtedly many, and on China’s consistent declarations that it holds the principles of national sovereignty and non-intervention as golden rules in the game of international politics. However, as I have explained before, China’s relationship with the ICC has at times been productive and positive.

China, of course, is not a member state of the ICC and it was one of only four states to vote against the Rome Statute in 1998. China has had significant disagreements with the Court over various issues, including the definitions of crimes under its mandate, the role of the UN Security Council, the powers of the Court’s Prosecutor, as well as its jurisdiction. Many of China’s dissenting views have been reconciled with the notable exception of its fear that the Court could become a political tool, something that – perhaps ironically – the Court’s greatest advocates also fear. During the Rome Statute negotiations in 1998, China participated actively. Since then, it has been an engaged partner in the ICC’s Assembly of States Parties and has, on occasion, voiced impressive political support for the Court. China has stated that it believes that the Court should play a role in contributing to international peace and security. In this contest, it’s important to keep in mind that China voted in support of referring the situation in Libya to the ICC. While this may come as a surprise to many, China has even suggested that its accession to member-state status is a realistic possibility.

Jintao and Bashir (plus some other guys)

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Posted in China, Darfur, ICC Prosecutor, International Criminal Court (ICC), Sudan, United States | 1 Comment

Bashir to Malaysia? The ICC and Marginalizing Indicted Leaders

Posted on June 16, 2011 by Mark Kersten

This week, Malaysia joined the ever-growing group of states which have considered inviting Sudanese President Omar al-Bashir to visit (note: it is now apparent he will not visit – see below). With the exception of a tiny minority of world leaders, this would be just another state visit by just another head of state. But Bashir, despite his own protestations and those of his supporters, is not just another head of state – he is a leader wanted by the ICC for the Court’s trinity of crimes: genocide, war crimes and crimes against humanity.

Regardless of whether or not Bashir is guilty of organizing atrocities in Darfur, he has been labeled as genocidal by the ICC and its advocates. This labelling aspect of international criminal justice, while rarely analyzed, is fundamental to its purpose. Politically, the perception or popular belief that a leader is guilty of committing atrocities may be just as important to the court as holding trials and achieving verdicts.

Labelling certain individuals as international criminals is intended to have numerous effects. It is meant to spread the popular perception of such individuals as illegitimate. Most importantly, it is intended to marginalize and isolate individuals who otherwise may benefit from a negotiated settlement.

The process and consequences of marginalization through ICC investigations and arrest warrants is not uncontroversial. Advocates argue that ICC indictments can isolate leaders both domestically and internationally, in large part by raising the costs of associating with individuals suspected of committing acts which violate the ‘conscience of humanity’. As mentioned previously, labelling individuals as international criminals is also an attempt to make leaders unfit for peace negotiations. Champions of international criminal justice point to the marginalization of Radovan Karadzic and Ratko Mladic during the Bosnian crisis, barring them from participating in (and presumably de-railing) the Dayton peace talks.

Despite being indicted by the ICC, Sudanese President Omar al-Bashir has visited numerous states (Photo: RNW)

Critics fire back that this is politically naive. In the “real” world, even the most unsavoury of leaders must be negotiated with. If justice is pursued at all, it must come after negotiated peace. Critics also argue, rather convincingly, that creating a political vacuum by isolating indicted individuals assumes that peaceful leaders will fill the void. There is also the ever-present, if rarely confronted, issue about the relationship between isolating leaders through judicial and other means and regime change. Most importantly, however, critics highlight that leaders who feel squeezed may respond by lashing out at vulnerable citizens. Rather than simply marginalizing them, warrants may embarrass and shame leaders. As has been persuasively argued by sociologist James Gilligan, shame is often a key cause of violent behaviour. In the case of Bashir, following the issuance of the ICC arrest warrant against him in 2008, Sudan retaliated by expelling a dozen NGOs from Darfur.

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Posted in China, Darfur, International Criminal Court (ICC), Kenya, Malaysia, Peace Negotiations, Ratko Mladic, Serbia, Sudan | 4 Comments

Why Uganda is Our Best Chance to get to the Bottom of the Peace-Justice Debate

Posted on June 15, 2011 by Mark Kersten

LRA leader Joseph Kony (second from right) and his second-in-command, Vincent Otti (far right), were both indicted by the ICC

Most of the academic and political attention that the International Criminal Court (ICC) receives these days comes from Sudan and Libya. There is little doubt that the investigations of Sudan’s Omar al-Bashir and Libya’s Muammar Gaddafi have captured the imagination of the Court’s fiercest advocates and most vehement critics alike.

It is no secret that the world’s attention can only be split so many ways. When our eyes and ears turn to Libya, we ignore Bahrain and Yemen. When we claim genocide in Darfur, we ignore the horrors of the Democratic Republic of Congo (DRC). Similarly, there is a significant division in the attention that the ICC’s cases get. Generally, the ongoing occurrences of war crimes and crimes against humanity in the DRC and the Central African Republic (CAR) are examined the least. The case of Darfur, thanks in large part to remarkably influential (if not always well-informed) activism of American human rights groups and celebrities as well as the labelling of the Khartoum regime as genocidal, remains a focal point of international political and media attention. Understandably, no case currently receives nearly the attention as Libya where a delirious tyrant, a former London School of Economics grad student and the Intelligence chief are in the cross-hairs of NATO bombs and the ICC’s Prosecutor. Somewhere, in the middle of the pack are the Kenya and Ugandan cases, with Kenya receiving more attention because of its recent nature.

Attention to northern Uganda from scholars, observers and international development community exploded in the early 2000s. A conflict which had long been neglected and seemingly relegated to oblivion, quickly became front-page news and emerged on the agenda of international institutions. This was in large part the result of the ICC’s involvement. In 2003, the situation in northern Uganda became the first case to be referred to the ICC, making Uganda “a litmus test for the much celebrated promise of global justice,” according to scholar Kasaija Phillip Apuuli. Two years later, the Court issued arrest warrants for the four senior members of the Lord’s Resistance Army (LRA): Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.

Internationally, the ICC’s indictments were hailed as a historic moment symbolizing the end of impunity for violators of the gravest crimes. Locally, however, many viewed the ICC’s timing and intervention as precarious, if not dangerous.

The conflict in northern Uganda resulted in, at times, millions of civilians being forced into internally displaced persons camps (Photo: BBC)

The notoriously brutal LRA, led by Kony, had been at war with the government of Uganda for two decades. Numerous peace initiatives had stalled or failed for various reasons. Then, in 2000, the Government of Uganda passed an Amnesty Act which guaranteed that any LRA combatants who defected from the LRA would be granted reprieve from prosecution and reintegrated  into society. Justice would be achieved through context-sensitive traditional reconciliation mechanisms rather than through trials. When the ICC began its investigations and subsequently issued arrest warrants for Kony and the other top officials, many civil society, human rights and religious leaders in northern Uganda strongly criticized the decision. Tim Allen, who wrote a remarkably lucid account of “trial justice” in Uganda quotes one northern Ugandan human rights worker as saying: “There is a balance in the community that cannot be found in the briefcase of the white man.” Others, most thoroughly scholar Adam Branch, maintained that the Ugandan government was in effect using the ICC in order to justify and legitimize a military campaign against the LRA.

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Posted in Amnesty, Central African Republic (CAR), Crimes against humanity, Darfur, Democratic Republic of Congo, International Criminal Court (ICC), Kenya, Libya, Lord's Resistance Army (LRA), Peace Negotiations, Traditional Justice Mechanisms, Uganda, War crimes | 13 Comments

Off to Uganda: Peace and/or/with/versus Justice

Posted on June 11, 2011 by Mark Kersten
Juba peace negotiations

Joseph Kony, leader of the Lord's Resistance Army

Dear Readers,

I am off to Uganda today to begin almost three months of research on the effects of the ICC’s investigations and arrest warrants on peace processes and negotiations in Northern Uganda. In particular, I will be focusing on how the ICC’s intervention in Uganda affected the Juba Peace Negotiations between the government and the Lord’s Resistance Army. I will also be measuring the attitudes of different actors on the peace-justice debate. I look forward to sharing some of my findings and experiences with you.

Over the summer, posts may be less regular. I will be stationed, for the most part, in Gulu. While I have been told there will be regular internet, we’ll just have to see. 

Thank you, as always, for your readership and interest in JiC. It has been – and continues to be – an honour and a pleasure to write for you.

Mark 

Posted in International Criminal Court (ICC), Transitional Justice, Uganda | 1 Comment

Before you go Supporting Exile for Gaddafi, Beware of What You Assume

Posted on June 11, 2011 by Mark Kersten
(Photo: Ivan Sekretarev/AP)

Photo: AP

Each time a conflicted and fragile society resolves to confront a murderous, tyrannical or dictatorial ruler, a similar question inevitably surfaces: should the ruler and his cabal be allowed, or even encouraged, to go into exile?

The logic in support of exile is simple and seemingly intuitive (although, it should be noted, far more complex in practice): Ushering violent leaders into exile removes them from power and thus revokes their ability to continue committing massacres and human rights abuses. When negotiating a fragile peace, the view holds, it may be better to use exile as a carrot – the leader is offered early retirement and protection from prosecution in exchange for allowing democratic and peaceful forces to take power. Leaders are assumed to be un-reformable and, without an offer of amnesty or exile, are presumed not to have any incentive to stop committing atrocities in an effort to maintain power. By trading exile for peace, greater bloodshed and the loss of life is thus prevented.

For a host of reasons, this position is problematic. It relies on assumptions about the logic of violent leaders, it generally neglects differences across contexts, and – as many will undoubtedly point out – it may be morally unacceptable. In many ways the simple logic of the exile argument resembles more an attempt at propping mountains up on matchsticks than a coherent, verifiable and objective hypothesis.  But there is another problem with the exile argument that is rarely addressed: the assumption that those who replace exiled leaders will necessarily be peaceful.

During and prior to the Cold War, offering exile and offering amnesty for past crimes was the norm as states negotiated their way away from violent political conflict towards consolidated peace. Some of history’s most brutal leaders, like Uganda’s Idi Amin and Haiti’s Jean-Claude Duvalier (Baby Doc), went into exile while the leaders of Argentina’s military juntas were granted amnesties for their role in the torture and disappearance of thousands of civilians during the Dirty War.

Idi Amin was among the tyrants who received exile during the Cold War

This approach is often said to reflect the realist’s understanding of international society. The only “realistic” way to end wars was to negotiate power-sharing agreements, manage conflict between warring parties and to offer exile or amnesty for particularly brutal leaders. Another possibility was internal exile: removal from power in combination with the granting of an amnesty to protect leaders from prosecution. If the leaders had committed crimes against civilians, so be it. Justice was a secondary goal, and only really pursued if it was deemed to help the cessation of direct political violence. Immunity from prosecution was exchanged for stability and, often, an aspiration to develop liberal, democratic institutions and traditions. This trade-off was seen and widely accepted as a necessary evil, a least worst option, driven by the fact that, as Mark Freeman argues, people may be repulsed by impunity but their “repulsion for war and tyranny is greater.” While there are important arguments about the extent to which this has occurred, the post-Cold War trend has shifted away from such logic.

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Posted in Amnesty, Exile, International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, Syria, Uganda, Yemen | 3 Comments

You Say Genocide, I Say Genocide: Some Thoughts on the Genocide Debate

Posted on June 5, 2011 by Mark Kersten

A Bosnian woman mourns over coffins of some of the victims of the 1995 Srebrenica massacre, which has been described as consituting an act of genocide (Photo: srebrenica-genocide.blogspot.com)

In an article on the continued debate about the meaning and use of the term ‘genocide’, The Economist writes:

“Prosecutors, judges, historians and politicians have made huge efforts in recent years to describe the boundaries of genocide: when mere mass murder stops and the ultimate human crime starts. Yet the term is far more than a tool of historical or moral analysis. Its use brings momentous political and legal consequences—and is therefore bound to be highly contested.”

Since the days when Polish lawyer Raphael Lemkin loitered in front of the offices of UN diplomats and pressed the international community to adopt the Convention on the Prevention and Punishment of the Crime of Genocide, few terms have inspired so many words, speeches, books and films as “genocide”. Perhaps only the term “nuclear” has evoked the same passion and interest. Genocide has, for better or worse, become known as the “crime of all crimes” and has seemingly defined the parameters of humanity’s capacity to conduct evil.

According to the Genocide Convention,

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

At the center of the genocide debate has been the work of Professor William Schabas. Schabas has written extensively about his discomfort with what he sees as the abuse of the terminology of genocide, declaring that its expanded use and conflation with crimes against humanity has resulted in a “careless and potentially misleading use of precise terminology.” According to the Economist, however, Schabas now argues that the international community should turn its focus away from genocide to crimes against humanity.

State representatives sign the Genocide Convention. On the far right, standing, is Raphael Lemkin who tirelessly worked to get recogntion of the term "genocide" (Photo: ushmm.org)

A trend towards applying crimes against humanity as a sort of blanket crime, would have significant consequences for the adjudication of international crimes. It would virtually guarantee that most perpetrators of mass atrocities are found guilty. Why? Because, as Dov Jacobs argues, they don’t need the intent to destroy, in total or in part, a particular group of people, as the crime of genocide requires, nor does it require a recognition that crimes were committed in the context of an armed conflict, as war crimes require.

Some may argue that there is something fundamentally positive about a world which sees all crimes which may amount to genocide as crimes against humanity. Because genocide must be done by one group against the “other”, calling crimes genocide implicitly and explicitly reifies the belief that some people are different. Crimes against humanity, on the other hand, is a fundamentally cosmopolitan international crime. Which people are targeted is irrelevant because the crime is one not against any type of people, but a crime against all people, against all of humanity. The architects and perpetrators of the Holocaust, for example, were not charged with genocide at the Nuremberg Tribunal (the term “genocide” did not yet exist). Instead, their acts were considered as crimes against all of humanity.

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Posted in Crimes against humanity, Genocide, Peace Negotiations, Ratko Mladic, Rwanda, Sudan, United States | 8 Comments