Negotiating Peace in Libya: What Happens to Justice?

Posted on July 26, 2011 by Mark Kersten
Waiting: a Libyan rebel stands as wreckage caused by a NATO attack burns behind him (Photo: Reuters)

Waiting: a Libyan rebel stands as wreckage caused by a NATO attack burns behind him (Photo: Reuters)

While diplomats from all interested parties may not be willing to describe it as such, the crisis in Libya has reached the negotiation phase. Foreign ministers crisscrossing around the world, dropping in on various national capitals, testing the waters by suggesting things like “Gaddafi can stay in Libya but not in power” and “he can be in an adjacent room during negotiations” – all of this is setting the table for the parameters of negotiations and setting the tone for what now appears to be an inevitable series of peace talks between the Gaddafi regime and the rebels’ National Transitional Council (NTC).

On some level, it is hard not to welcome peace negotiations in Libya with open arms and optimism. The crisis has dragged on for four months now and, should it continue to drag on, the only obvious and predictable dynamic will be that every day more Libyans will be killed and more of the country will be destroyed. To all parties involved, from NATO to the AU, the rebels and pro-Gaddafi forces, the only way this spiral of violence can be arrested is by negotiating a resolution to the conflict.

But the emergent zeal for a negotiated settlement also carries with it less optimistic elements. First of all, even if Western diplomats won’t admit it, the enthusiastic mobilization for peace talks means that the international community has lost confidence in the ability of the rebels to emerge victorious, even with NATO support. This may be because they believe the rebels are inherently incapable of successfully taking over Tripoli or because the sun is setting on NATO’s mission in Libya. As has been reported, tensions and cleavages have quickly emerged within NATO powers and amongst its regional allies. Regardless, the result, it would seem, is that the international community believes that some form of power-sharing agreement between the rebels and Gaddafi’s regime must be negotiated.

It is in this context that the waters are being tested for peace negotiations and the boundaries of potential negotiations are being drawn. The most pressing boundary is the role of Col. Gaddafi in the negotiations and his fate once talks have concluded. Both the rebels and the Western powers have drawn their line in the sand: Gaddafi cannot directly partake in negotiations nor can he remain in power following a resolution to the crisis.

Burning bus in Libya

The only guarantee, if the crisis in Libya continues, is that people will lose their lives and the country will continue to be destroyed (Photo: AP)

What to do about justice? As I have argued previously, to date there was no evidence that the ICC was in tension with peace in Libya. But with the onset of peace negotiations, the potential tensions between peace and international criminal justice become more obvious, clear and precarious.

In Libya, these tensions have begun to emerge on four levels:

1. Let’s Get this Straight: The Contradiction of Western Power Positions

A number of Western states involved in the conflict, notably France and Britain, have begun to refine their “exit solution” for Col. Gaddafi, saying that while he cannot be allowed to retain power, he may be allowed to remain in Libya.

Meanwhile, these governments have declared that Gaddafi must be arrested and brought to the Hague – although, dubiously, never in the same statements regarding peace negotiations. They were at the vanguard of the UN Security Council’s resolution to refer the situation in Libya to the ICC. It bears asking whether the persuasion of states like the UK and France in support of the referral was the result of a desire to instrumentalize the Court in efforts to put pressure on and marginalize Gaddafi rather than because of any steadfast conviction of the need to bring Gaddafi to justice. Regardless, by simultaneously holding these two contradictory and apparently mutually exclusive positions, these governments undermine the pursuit of international criminal justice.

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Posted in African Union (AU), Amnesty, France, International Criminal Court (ICC), Libya, Libya and the ICC, NATO, Peace Negotiations, The Tripoli Three (Tripoli3), United Kingdom | 2 Comments

Transitional Justice: “Paradigm Shift or Hot Air?”

Posted on July 19, 2011 by Mark Kersten

I recently attended the IASFM conference on forced migration outside of Kampala, at a picturesque resort perched above Lake Victoria (yes, there is irony there!). At the conference, numerous scholars presented pieces on “transitional justice” or “TJ”. Disarmament Demobilization and Reintegration (DDR) was “TJ”. Security Sector Reform (SSR) was “TJ”. Forced migration and resettlement, even, was referred to as “TJ”.

The term “transitional justice” has salience in describing particular historical periods and dilemmas. It was first used to describe the transitions in Latin America where authoritarian regimes fell, democratic forces took their place and there was a struggle regarding how to achieve justice in the transition from violence to peace. Today, however, “transitional justice” has seemingly lost this specific meaning. Instead, the term is now defined, as per the International Center for (you got it!) Transitional Justice (ICTJ) as:

“a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades.”

Paradoxically, transition is no longer needed for transitional justice!

There is little doubt that transitional justice is developing as a discipline as well as a lens with which to explore and analyze issues of accountability in conflict and post-conflict settings. Transitional Justice now has its very own academic journal, its own center (ICTJ, as above) and numerous “networks” including the London Transitional Justice Network, of which I am a member. However, it is worth considering and indeed questioning whether this is not unproblematic.

Transitional Justice has exploded as an issue in international politics, with various centers dedicated to it, a journal and networks of academics and practioners.

At IASFM Brian Kagoro rather poetically declared that:

“There is no transitional justice in Africa because Africa has always been in a state of transition.”

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Posted in International Criminal Court (ICC), Justice, Traditional Justice Mechanisms, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | 2 Comments

International Justice Day: Some Thoughts on The Year Ahead for the ICC

Posted on July 17, 2011 by Mark Kersten

Greetings from Gulu, northern Uganda and happy International Justice Day to readers of Justice in Conflict!

Predicting which issues the Court will face in the next year may be a futile effort. Who, at this time last year, would have said that Ivory Coast and Libya would be under investigation by the ICC, that Tunisia, free of President ben Ali, would become a member of the Court, and that a regional conference on the ICC in Doha would see vehement proclamations of support for the Court from numerous Arab states? The past six months have perhaps been the most remarkable and dramatic in the ICC’s short history.

Here are a few thoughts on some of the challenges I believe that the Court will face in the next year as well as a few predictions.

1. Getting Indicted Leaders in the Dock
Whenever they are asked about why particular individuals like Gaddafi, al-Bashir and Kony remain free, the ICC and its most vehement supporters have typically fallen back on a line to the effect of: “Whether it’s tomorrow, in 10 days, 10 months or 10 years, these people will be brought to justice.” It is fanciful rhetoric and, indeed, many have given the ICC, as a novel institution, the benefit of the doubt. This leniency, however, will eventually run out if the Court is unable to put its biggest fish in the fishbowl that is an ICC courtroom. This is not only a challenge for the next year but a challenge that is ever-present at the Court.

I believe that over the next year, the ICC will put its first former head of state in the dock. Now, don’t go making travel plans to see Sudan’s Omar al-Bashir or Libya’s Muammar Gaddafi facing judges in the Hague. My prediction, rather, is that the former President of Ivory Coast, Laurent Gbagbo, will be brought to the ICC. The Court’s Pre-Trial Chamber is still deliberating on whether to open an investigation in Ivory Coast, but it would be politically irresistible for the ICC not to accept. Gbagbo has already been detained, meaning a transfer to the ICC would be relatively easy. The Office of the Prosecutor would no doubt rejoice in the ability to say: “the Court is able to Prosecutor head’s of state – just look at Gbagbo!” Given the nature of the post-election violence in Ivory Coast, particularly the fact that serious crimes were allegedly committed by both sides of the conflict, one-sided justice remains, of course, an ever-present danger.

2. Living with International Politics
The vast majority of the challenges which the ICC faces boil down to how the Court functions in a highly charged international political context. With two situations referred to it by the UN Security Council, the ICC’s relationship with the Council has never been more important. It is not obvious that the UN Security Council has not left the ICC “hanging” – referring difficult situations to the Court but doing little else to support or enhance the Court’s initiatives. Complicating matters further is that the ICC, rather than the Security Council, is the typical target for blame for the failure to achieve peace in Darfur and Libya.

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Posted in Elections, Fatou Bensouda, Funding, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Justice, Libya, Libya and the ICC, Middle East, Next ICC Prosecutor, Peace Negotiations, The Tripoli Three (Tripoli3), UN Security Council | Leave a comment

Uganda’s Controversial First War Crimes Trial: Thomas Kwoyelo

Posted on July 12, 2011 by Mark Kersten
Kwoyelo Trial

Thomas Kwoyelo, seen here after his capture, began his trial in Gulu on July 11 2011 (Photo: New Vision)

On July 11, I had the opportunity to attend some of the beginning of the first trial of Uganda’s International Crimes Division of the High Court, in Gulu, Northern Uganda. On the stand is Thomas Kwoyelo, a former senior Lord’s Resistance Army combatant. He is being tried on 12 counts and 53 charges dating between 1996 and 2009. So exhaustive is the list that it took almost two hours to read out as Kwoyelo stood subdued and at times appearing exhausted. A legal observer suggested that the prosecution “piled on” the charges against Kwoyelo in order to guarantee he is convicted on at least some counts, given that it will be difficult to prove many of the charges.

The trial began rather oddly. There were hundreds of people awaiting Kwoyelo’s appearance at the Court. He came in on a convoy. The first truck was filled to the brim with police officers and other alleged criminals heading to the Court. An extraordinarily odd moment unfolded with the presence of a marching band (see below). Here’s a clip of his arrival:

The International Crimes Division of Uganda’s High Court was set up in the wake of the Juba Peace Talks (2006-2008), the latest attempt to resolve the seemingly intractable conflict between the Lord’s Resistance Army and the Government of Uganda. In the context of widespread fears that LRA leader Joseph Kony would not sign the peace agreement unless the ICC arrest warrant against him was dropped, the International Crimes Division was viewed as an institution which could circumvent the need to bring LRA leaders to the ICC. In the end, however, Kony refused to sign the final Juba Peace Agreement. Nevertheless, the Government of Uganda moved forward and established the Division. Kwoyelo, who was captured in 2009, is the Division’s first defendant.

The biggest controversy at the trial has to do with whether or not Kwoyelo should receive amnesty. In 2000, the Government of Uganda passed the Amnesty Act which was intended to provide protection from prosecution as an incentive to LRA combatants who defected. The record of the Amnesty Act remains uncertain – some say it has been effective in getting LRA combatants to defect; others disagree. It has been a rather confused process. Those “most responsible” for atrocities in the LRA, including Joseph Kony, have been offered full amnesty by the government only to have it revoked and then offered again.

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Posted in Amnesty, Human Rights, International Criminal Court (ICC), Kwoyelo Trial, Lord's Resistance Army (LRA), Southern Sudan, Sudan, Transitional Justice, Uganda, War crimes | 12 Comments

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?

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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.

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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