Archive | December, 2014

Stuffing the ICC’s Christmas Stocking, Dr. Robert Zuber

23 Dec

The recently concluded Assembly of States Parties (ASP) to the ICC gave rise to an array of hope and concern from States, considerable expressions of support by NGOs and the community of legal educators, and some election campaigning for judgeships that made horse trading in Texas or Oklahoma look perfectly rational by comparison.

For some, the controversies surrounding the ICC were the latest in a series of setbacks that have some wondering about the commitment of the international community to end impunity for the most abusive of crimes.  Events surrounding ICC engagements with Sudan, Kenya and Libya have not inspired much optimism.  State presentations to the ASP by China and others underlined trust deficits with varying degrees of relevance, leading some participants to despair — mostly unwarranted we feel — that a fair, effective and transparent system of international justice will perpetually elude our collective grasp.

It is not only the ICC, of course, that generates such concerns.  Discussions in the UN Security Council over means to ‘sunset’ the International Criminal Tribunals for Rwanda and the former Yugoslavia contributed to the 2013 International Residual Mechanism for Criminal Tribunals.   However, even while agreeing recently to extend the work of the ICTY, some Council members could be heard urging the ICTY president and prosecutor to clean up remaining business as soon as possible. With due regard for budgetary concerns, these members know full well that successful legal proceedings at this level are rarely driven by time constraints and that, indeed, a failure to provide full access to relevant evidence and cross examination is as likely to lead to appeals, if not outright dismissals, than to firm convictions.  And, needless to say, given the severity of the crimes for which people like Karadžić and Mladić have been accused, ‘firm’ is to be highly preferred.

In the case of the ICC, the only point at which ‘hurry up’ seems even remotely applicable is in the issuing of Council referrals which can certainly be ill-timed and occasionally seem designed more to push away difficult security challenges than to deal with them in a truly systemic, complementary fashion.  In this and other aspects, the ICC is too often caught up in conundrums more political than legal, and largely not of the ICC’s own making.

Chief Prosecutor Bensouda’s frequent briefings to the Council this year, most notably on Libya and Darfur, have for the most part been painfully frustrating to behold.  The work of her office has clearly been compromised by, among other things, inadequate budgets, even less adequate security contexts, the reticence by states to apprehend indicted suspects, a lack of follow up on referrals by the Council, and in some cases signatory states leveling public charges of bias with much greater force than other states issue concrete commitments of support.  (It is difficult to see how a now-contemplated Council referral on the DPRK would be able to avoid one or more of the above pitfalls.)

This ASP brought to the surface most of the key issues affecting the current performance and longer-term credibility of the Court:  the need for greater complementarity between national and international legal mechanisms, the need for referrals that are tied to clear budgetary commitments, the willingness of the Council to discipline states that shelter or otherwise protect indicted criminals,  the need to counter the perception of ‘Africa bias’ in the Court as part of a larger ‘bias’ in a system that has little stomach for employing the same remedies against larger states that it routinely imposes on smaller ones. Clearly, the ICCs agenda is replete with matters not directly related to evidence gathering and the conduct of criminal trials.

There were some interesting moments in this ASP not tied directly to the endless trolling of votes for ICC judgeships.  One highlight was surely the speech of Ambassador Mansour of Palestine, who rebuffed Israel’s contention that its presence at the ASP was not warranted and then claimed that a growing number of policymakers in Palestine were convinced that membership in the ICC would greatly benefit their evolving state interests.   The question, of course, is the degree to which Palestine’s participation is likely to help reverse the trend of more politicized engagements with the Court.

In the end, even after its finding of non-cooperation on Sudan and the dismissal of charges against Kenyan President Kenyatta, the Court is resolved to fight another day.   Its Christmas stocking is hardly bulging this year, but the issues it is likely to contend with in 2015 have been clearly laid out. And even critical states seem cautiously optimistic that the Court can weather its political and procedural storms, make changes where appropriate, and continue to serve the compelling and broadly-accepted interests of ending impunity for the worst criminal offences.

In the view of many onlookers, what the ICC needs in its Christmas stocking this year is fewer modulated expressions of support and more concrete commitments by states.   As Madame Bensouda has made clear on many occasions, it is up to states to ensure that alleged perpetrators, once indicted, are made available for trial.  Moreover, it is up to states to ensure that, once convicted, perpetrators can be incarcerated in facilities that meet international standards.  It is up to states to ensure that witnesses are protected from retribution and that victims are offered reparations that go beyond cash disbursements.  It is up to states to ensure that adequate resources are available to conduct fair trials that lead to unimpeachable judgments.   These ‘stocking suffers’ are not endless, but they are essential.

As with other meetings of this sort, the ASP merely confirmed the limitations of any trial court – even one with the deserved prestige of the ICC — and outlined essential, practical commitments by both the Security Council and other UN member states, without which the ICC cannot possibly sustain an effective and trustworthy mechanism of international justice.  Moving forward, we simply cannot allow our commitment to ‘never again’ to be sidetracked by ‘never enough.’

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The Fabulous Five:  Non-Permanent Council Members Leave a Permanent Mark

15 Dec

As 2014 draws to a close, the Security Council bids farewell to five states which, as a group, significantly elevated the role of non-permanent members at a time when the Council has seemed by many to be simply overwhelmed by a torrent of global crises.

Argentina, Australia, Luxembourg, the Republic of Korea and Rwanda all performed with various levels of distinction, taking on important and complex committee assignments but more importantly calling the Council as a whole to higher standards of performance.  Only occasionally over the past two years did any of these members seem to forget where they came from – the General Assembly – or where they are soon destined to return.  The Council can be a ‘heady’ place, especially for smaller states infrequently selected to take a seat around the oval.   But the Council also has problems of focus, follow-through and other working methods-related issues that impact the rest of the UN system, producing tensions with member states that this group helped take steps to resolve.

One failing of the current, uneasy consensus on working methods, as we have noted previously, is that the so-called ‘public’ events seem a bit too scripted, attempts to ‘brand’ policy rather than allow glimpses into the rationales for and limitations of Council efficacy. In our own global travels, it quickly becomes clear that what people would prefer to ‘see’ from Council members is a measured and thoughtful assessment of the many global crises on their agenda, the implications of these crises for international peace and security, and any changes Council members are willing to contemplate in order to more effectively fulfill the ‘primary’ Charter responsibility to which some of the members constantly call attention.

Having sat through hundreds of hours of these Council events over the past two years, there are things we wish we could have seen more often from these five skillful members.   We would have liked to see the ROK take more risks in their policy statements. We would have liked to see more independence by Australia from the influence of some permanent members.  We would have liked to see Luxembourg and Argentina get up to speed more quickly (no small task) so that other Council members could have taken greater advantage of their often-wise counsel.   We would have liked to see stronger guidance from Rwanda in support of still-fledgling AU efforts to maintain peace and security, especially given that Rwanda understands better than almost anyone the degree to which many Council responses to African conflict are late to evolve, capacity challenged, and lacking in cultural nuance.

Of the non-permanent members that are now vacating the Council, our ‘hat’ tips especially towards Argentina.  While the other ‘fabulous five’ states were certainly thoughtful in their policy statements – Luxembourg and Australia especially come to mind from this group – it was Argentina that attempted to take seriously the role of Council sage.  It was Argentina whose statements most often raised the question of why the Council bothers to convene to then share views that have no collective policy impact.  It was Argentina that insisted most strongly that the Council honor its obligations to peacekeepers, to the ICC, to other parts of the UN system that have (legitimate if unfulfilled) expectations of Council performance.  It was also Argentina that, more than the others, seemed to understand the mood of the audience behind the web cast, an audience uneasy about the state of the world and increasingly concerned that the Council might not have what it takes to bring wide-ranging chaos and abuse under effective international control.

As we have already alluded to in past statements, what policymakers and the global public need to glimpse from the Council is a body whose statements meaningfully reflect the full- spectrum burdens that it faces, the policy compromises that its working methods sometimes impose, the inability (or unwillingness) to seize on potential crises at their earliest moments, the commitment to play by the rules that it expects other states to play by, even the willingness to acknowledgement of policy blunders (Libya comes immediately to mind) that have wrecked many lives in states seemingly ‘permitted’; to fail.

In our view, this general vetting is the primary (albeit difficult) job of non-permanent members: using this temporary platform to revitalize Council methods, build stronger and more trust-worthy bonds with the rest of the UN system, and give voice to otherwise muted policy concerns.  Given the vast power disparities within the Council itself and the often unruly political machinations that sometimes proceed from this imbalance, we can only honor the contributions of this fabulous five.  They have set a high and inviting bar for their successors.

Dr. Robert Zuber

Ending Sexual Violence in Armed Conflict: Posing the Next Set of Questions

12 Dec

Editor’s Note:  Dr. Megan Daigle came to us this fall from the University of Gothenburg at the suggestion of longtime GAPW colleague and friend Dr. Maria Stern. During her time here, Megan reinforced many of our core policy interests, including African and Latin American politics.   More specifically, her work on feminist theory and violence against women is both relevant and inspiring to us, and we hope to maintain a collaborative research and policy relationship with her for a long time to come. 

As a research fellow at the Gothenburg Centre for Globalization and Development in Gothenburg, Sweden, I travel frequently to conduct archival research and interviews.  For much of October and November, I was in New York interviewing UN officials, NGO staff, and other activists — and, of course, haunting the Global Action offices as my base of operations.  Arriving in New York as an independent researcher, it’s easy to feel a bit at sea.  The myriad headquarters and offices of UN bodies are all but impenetrable to outsiders, but given that my research focuses on the mobilization of resources, interventions, and political will to end sexual violence in conflict zones, this was where I needed to be.

Sexual violence in armed conflict (SVAC) is now a high-priority agenda item for the Security Council, following a string of resolutions beginning with UNSCR 1325 in October of 2000 and culminating most recently with UNSCR 2122 last year.  SVAC is also at the top of programming and advocacy dossiers at a variety of UN agencies including UNFPA, UN Women, UNICEF, and UNHCR, amongst others, and gave rise to the creation of UN Action Against Sexual Violence in Conflict, an interagency effort at improving coordination and accountability in work on SVAC.  This mobilization can be dated to the international tribunals for Rwanda and the former Yugoslavia, which first tried SVAC as war crimes, but it really began to gain momentum with 1325 and the issuing of the first major NGO reports on the issue.  Funding for women, peace and security issues is always scarce, but it is now commonly said that, anecdotally, SVAC is receiving a disproportionate share of that limited pie.  In June, the United Kingdom held a massive summit hosting thousands of activists, experts, survivors, and government ministers.

Given this remarkable rise in interest and action, there are some questions that we need to ask, which are forming the basis of my research:

Why this issue, and why now?  This isn’t meant to suggest that the international community shouldn’t be doing something about the horrific scale of sexual violence that has accompanied so many modern wars.  Rather, the severity and persistence of SVAC is all the more reason why we should ask why we are so committed now — what interests is it serving, who have been the major players, and how has it come about?  That may sound cynical, but this question has important implications for how the issue is approached and how sustainable the effort is likely to be moving forward, especially if the political winds start to blow in a different direction.

Why are we taking SVAC as an issue on its own?  It’s hard enough — if not impossible and perhaps inadvisable — to try to draw a clear line between conflict and post- (or pre-) conflict periods.  We know that SVAC is strongly related to rates of gender-based violence and gender inequality that already exist in a given society before the outbreak of conflict.  We also know that incidences of domestic violence increase markedly in conflict settings, so discerning what gender-based violence is “related” to conflict is also difficult and a blurry line at best.  So why are we trying to address it as a separate issue — from gender-based violence in and out of conflict on one hand, and from the other harms and vulnerabilities faced by people living with conflict on the other?  One explanation seems to be that SVAC is seen as an “easy win,” not in the sense of being easy to fix, but rather that it’s easy to get on board.  Nobody is going to say they’re in favour of SVAC, certainly, so it’s a relatively easy issue to champion, even in as slow-moving and disinterested a diplomatic system as the UN tends to be.  Taking it out of its context allows this to happen, without requiring us to dig into the thornier issues of structural gender inequality, domestic violence, girls’ education, pay gaps, and women’s representation in politics — which many governments refuse to broach, but which might help us to make a far greater impact on rates of SVAC.

What effects is this mobilization having?  SVAC, like any kind of sexual violence, is notoriously hard to measure.  Survivors are reluctant to come forward, communities are often slow to act until evidence is long gone, and courts have been reticent not only to try cases, but also to provide the necessary considerations for survivors and witnesses.  There are undoubtedly many good things happening as a result of the recent surge in interest, many of which are supported by the UN and its various branches: social outreach and education, security sector reform, transitional justice processes, and medical and social service provision, to name just a few.  We also need to examine where we may be going wrong.  There have been criticisms of interventions and advocacy on the issue of SVAC from a number of directions that merit serious consideration.  First, some argue that male survivors are erased in the current discourse surrounding SVAC, even as many in the NGO community feel that organizations dealing with male survivors receive a disproportionate share of funding.  It has also been argued that decontextualizing SVAC, as I discussed above, seriously reduces our capacity to make real change as an international community.  What is more, many critics argue that this recent wave of activism — on the part of governments, NGOs, and UN bodies — reduces women to this, this issue, this role as victims of violation, and that it treats SVAC as the emblematic female experience in war.  When we think of women in war, we think of rape, and that’s problematic because it erases the many other roles that women play as diplomats, soldiers, peace builders, aid workers, or militia members.  I have a lot of sympathy for these more nuanced perspectives.

Perhaps most importantly, we need to ask ourselves, what more can and should we be doing?  In conversations that I had with UN staff from a few different offices, I asked them about prevention, and I heard the same story a few times: when we hear that women are being attacked in certain places — while collecting firewood or water, on routes between towns, or while working in fields — we send peacekeeping patrols to escort them.  This brings out an important distinction between protective and prohibitive forms of prevention; the first merely inserts some kind of impediment (peacekeepers, walls or fences, well-lit streets) between a would-be attacker and victim, while the second prevents assault from happening in the first place.  This focus on protective prevention is in part a function of short-term, output-focused funding models, where agencies are under pressure to produce quantifiable results by the end of a project, taking emphasis and funding away from long-view work on changing attitudes and standards.  But it does shape our approach and what our “solutions” look like.  This is just one example, but there are more: it’s imperative that we see more survivor-led initiatives, responses that don’t just consult with women and men who have experienced violence, but employ survivors to work on locally-appropriate solutions. It is simply not enough to deploy ‘experts’ and their tendency to uncritically export models across contexts.

The bottom line is that it’s not enough to move forward under the assumption that our good intentions mean we are, in fact, doing good — we have to be self-critical and willing to ask ourselves, is our ‘help’ helping?  I’m only at the beginning of this project, so I can’t begin to answer many of my own questions, but these are the thoughts I’m left with after weeks of interviews with UN and NGO staffers, and that will guide my work moving forward.

Ms. Megan Daigle  (megan.daigle@gmail.com)

Elite Benefits, Dr. Robert Zuber

10 Dec

Those of us who try to stay current with multi-lateral, diplomatic affairs are acutely and sometimes painfully aware of the benefits that ascribe to being a large power at the United Nations, especially a permanent Security Council member.

Governments at the UN have become accustomed to playing by two sets of rules.   The permanent members routinely create narratives for their own behavior that, by any relevant international standard, should be heavily scrutinized rather than brushed aside.  Scrutiny, too often, is reserved for the smaller and often ‘outlier’ states that have fewer resources and less occasion to ‘spin’ bad behavior to positive political ends.

The release of the US Senate’s report on CIA interrogation methods is welcome, despite the political wrangling that delayed its release, citing ‘damage’ to US interests that might occur once at least a portion of the ‘truth’ is out.  And despite efforts by some to use the report’s release as a kind of moral ‘disinfectant’ to the deep psychic sickness which the report partially highlights and to which this nation has willfully descended.

There are of course lessons here that the US (and many other nations) would be wise to learn but probably will not.  The first lesson is that controversial behavior must account for that time when the full truth about the controversy is known.  People don’t much care about the day to day activities of most of us, but in the case of high government officials there will always be interest.    And in this celebrity driven age with personal gadgets at the ready, the chances of keeping ‘secrets’ secret in the long-term are quite low.

Second, we need to lose this idea, and especially its practical application, that some states stand above the laws they seek to hold others accountable to.   I’m not sure what happened to ‘modeling’ as a change strategy, but clearly the ‘do as I say, not as I do’ maxim that is so dysfunctional within family life has somehow found a leading role in international polity, and not to its benefit.

And finally, the noxious effort by some in the government and media so see the release of the report as a symbol of our collective moral virtue must cease immediately.   My country did not ‘own up to’ our mistakes until, in some instances, years after those ‘mistakes’ were made, and then only under pressure from the press and human rights advocates, and then again only after intensive political wrangling.   Moral virtue, indeed.  If ever there was a time to climb down from the bully pulpit and eat some humble pie, this is it.

The ability of elite powers to ‘spin’ their own bad behavior while pointing fingers at others is itself a moral travesty and one of the reasons why the status of the UN is not higher globally than it is.  I will likely pay more of a penalty for late payments of my office bills than lying CIA officials (and their defenders in the executive branch of government) will pay for sapping the very life out of persons who were, for the most part, only ‘alleged’ to have committed serious crimes.

Needless to say, this is not quite the ‘gift’ on Human Rights Day that we might otherwise have hoped for.