Tag Archives: ICC

Weather Vane: Gauging Directions of Multilateral Threat, Dr. Robert Zuber

16 Sep

Weather

Justice will not be served until those who are unaffected are as outraged as those who are.  Benjamin Franklin

We are not to simply bandage the wounds of victims beneath the wheels of injustice; we are to drive a spoke into the wheel itself.  Dietrich Bonhoeffer

Dislike in yourself what you dislike in others. Hazrat Ali Ibn Abu-Talib

When culture is based on a dominator model, not only will it be violent but it will frame all relationships as power strugglesbell hooks

This has been a tough week for many.  As storms in the Atlantic and Pacific lined up like aircraft at an international airport, two of them created a special havoc – one in the Carolinas and another in the Philippines, two of the seemingly growing number of places in the world frequented by storms that, over and over, undermine lives and livelihoods.

Though my own inconveniences are minimal, I like others have friends and family in these stormy places.  I have also done work in those places and helped others do their own.  In many of these communities, a lifetime of struggle to raise families and improve living conditions has been drowned and battered yet again by forces that humanity as a whole has done plenty to unleash but to which these residents, themselves, have contributed little.  For them, displacement might become their storm-driven outcome.

The uneven misery from these climate events was underscored by a local reporter covering what is now only the first wave of Florence’s impacts on the Carolinas.

In most disasters, the poor suffer disproportionately, and it is no different here. The neighborhoods struggling to rebuild after Matthew are the same neighborhoods most at risk to flood again. Haggins was barely getting by back then, crashing with friends. After the water receded, she tried to go collect the little she owned from her friends’ houses, but they’d all flooded and everything she had in the world was gone.

Most of us — even those of us who should know better — have a hard time grasping the concept of “everything gone,” indeed often have a hard time grasping the degree to which those bearing the brunt of horrific storms this week were barely “making it” while the sun was still shining and the breezes were gentle.  There is little justice where climate shocks are concerned, no court to hold the likes of Florence and Mangkhut accountable.  There is mostly just a bevy of folks trying to save what’s left amidst the sobering outlook of more storms revving up their deadly engines and blowing away any reasonable prospects for recovery.

But while we can’t hold these storms and their climate incubators responsible, there are mechanisms of justice  (however imperfect they might be at present) that promise some hope for persons victimized by neighbors, insurgents and governments — humans whose collective predation seems recently to have exceeded in intensity and intentionality anything that we have yet witnessed elsewhere in the animal kingdom.  Inside the UN, there has been a steady recognition that impunity for the most serious crimes represents a stain on our collective system of justice; that the failure to hold individuals and states accountable for their crimes – committed against many of the same people victimized by climate shocks – is a glaring mark against the rule of law that undermines what remains of our robust multilateral system of governance.

To its credit, the UN recognizes the danger and is doing its part to build or restore competent, impartial justice systems and create special criminal tribunals from Haiti to Central African Republic, partially in keeping with the general belief that such justice competence is essential for building a world consistent with the our 2030 Development Agenda aspiratons.   The UN has also pushed for accountability on chemical weapons use in Syria through the General Assembly; has created a “residual mechanism” to handle pending cases from the criminal tribunals established for Rwanda and the former Yugoslavia; and has (largely through the Security Council) worked to ensure that the use of coercive sanctions is more carefully targeted to punish perpetrators without endangering civilians. The UN and many member states have also continued to vocally support the International Criminal Court despite challenges (including some testy moments with the ICC Prosecutor) from some permanent members of a Security Council which issues ICC referrals and (ostensibly) ensures that states cooperate with the Court’s investigations and warrants.

Unfortunately, we are now in danger of turning our current political “climate” of ethno-centrism, border defensiveness and general suspicion into an art form, leading to a host of double standards – including at the UN – regarding divergent levels of accountability for actions undertaken by powerful states relative to “lesser” countries that simply find it hard to protect themselves from large-state whims.  As evidenced by this week’s tirade by John Bolton, the US is fully committed to joining the ranks of prominent states seemingly “doubling down” on advocacy for an international “justice system” predicated less on the rule of law and more on narrow perceptions of national interest.

Efforts by the International Criminal Court to level the accountability playing field has incurred the wrath of some of the more powerful governments seeking to justify and preserve that age-old entitlement utilized in a somewhat different form by parents content to push their children into a lifetime of therapy – “we do what we want, you do what we say.”

Through dedicated efforts from states (including current and soon-to-be Council members) and civil society organizations, the ICC has in fact improved its investigative and prosecutorial procedures while expanding its focus into the realms of conflict-based sexual violence and, most recently, the crime of aggression.  It has successfully prosecuted criminals such as in the recent (albeit controversial and expensive) case of the DRC’s Bemba Gombo, and has recently accepted jurisdiction on matters related to the forced deportation of Rohingya from Myanmar to Bangladesh.  It’s Trust Fund for Victims has reinforced on the international agenda (despite current funding limitations) the need to ensure reparations and psycho-social support for those victimized by the atrocity crimes that are still much too pervasive in our world.

The ICC’s limitations and growth edges are widely known, and include the aforementioned limitations of state and Security Council cooperation and the Court’s inability to gain traction on crimes committed by the world’s major powers.  That said, it must be noted that the ICC is intended to be a “court of last resort,” to be invoked only in situations where domestic courts are unable or unwilling to prosecute war criminals and other purveyors of mass atrocities.  If John Bolton, for instance, were more interested in ensuring that the conduct of US military operations was in accordance with international humanitarian and human rights law, the alleged jurisdictional threats and related “power struggles” involving the ICC would be quite less alarming.

Nevertheless, these attacks on the ICC remain dangerous at multiple levels. They undermine confidence in international law, especially on the part of victims whose avenues for redress are already far-too-limited.  They undermine confidence in international peace and security still the province of largely unaccountable state powers.  And they undermine confidence in the international system that now seeks to build commitments to action on a wide range of fronts – and specifically to address the climate threats which have this week turned fertile areas of the Carolinas and the Philippines into unusable swaths of water and mud, motivating many to consider abandoning communities that had nurtured their families for many years.

It has been a theme of this space for some time, but it bears repeating here.  We are responsible not only for what we propose, but for what our proposals enable for others, the consequences that ensue when others “take up our cues” and apply them in other contexts.   This week’s ICC-focused “cue” from Bolton is one that the causes of international justice and multilateral effectiveness on climate and other global threats could well have done without.

Raising the Stakes on Conflict Prevention Stakeholders

25 May

On Thursday, an unusually large crowd of diplomats, invited guests and NGOs gathered in the Security Council to observe the veto of a resolution on Syria (S/2014/348) that had been drafted by France and endorsed by an array of other states inside and outside the Council.

The gist of the resolution was a referral to the International Criminal Court as one measure of ending impunity or at least, in the words of the Australians, to remind abusers that there is no ‘statute of limitation’ on crimes being committed in Syria.

Such reminders are important, to be sure, though it is unclear that the ICC is well suited to conduct investigations and render judgments in the midst of a protracted civil war.   The Chief Prosecutor of the ICC speaking at a briefing on Libya earlier in the month pointed out to the Council that conducting investigations with little funding while confronting massive security threats is difficult at best.  That Syria (like Libya) features massive abuses by multiple parties only complicates jurisprudence, perhaps placing the attainment of justice in this instance well beyond the reasonable capacity of the court.

The failed resolution on Syria seemed somehow consistent with a recent pattern in the Council of trying to ‘do something’ by punting the political football to DPKO (in the form of more complex and coercive mandates) or the ICC (in the form of hastily conceived, unfunded, imprecise referrals) rather than examining the limitations of its own power and process.   The Council remains among the most politicized spaces in the UN.  It is also among the most uneven spaces from the standpoint of power and influence.   The non-permanent members (with the exception of their time as president) largely populate sub-committees and make public statements.  The Russians and Chinese would have little say on many resolutions if they could not force Council members to pay attention to them through threat of the veto.   And the rest of the UN system too often sits on its proverbial hands waiting to see if the Council will take on yet more ‘thematic concerns’ for which it then presumes to act as global legislator.

The present preoccupation with veto restraint within some parts of our policy community is a diversion that belies full recognition of the limitations of the Security Council and the under-tapped resources of the broader UN system (including the Joint Office on the Prevention of Genocide and the Responsibility to Protect) which the Council seems largely to ignore.    As we have written previously, effective veto restraint implies the existence of depoliticized findings of impending mass atrocity violence, a sincere and robust commitment to solve violence primarily through diplomatic means, and Council members whose motives are transparent and attached to the kinds of assessments and accountabilities that have eluded that body for most of its history.  In a system where findings are politicized, where preventive measures are under financed and too often disregarded, and where there is no way to hold the Council accountable for its own mistakes, veto restraint would simply be a gift to the P-3, one which they have not necessarily merited.  Whether or not such restraint would also be a ‘gift’ to victims has to do in part with organizational assessments of the relative efficacy of diplomatic vs. militarized solutions to complex patterns of violence.

Capacity support is the lifeblood of the UN system, and this is true for atrocity crime prevention as in other areas.   But the success of such support is only enhanced when the full complement of stakeholders is acknowledged and engaged.  Regarding RtoP, for instance, it has never been clear who the relevant stakeholders are.  Is it permanent Council members?  Other member states?   The small group of NGOs that gather around the issue here in NY?  Regional or national governmental/military alliances?   What is the role for a small office like GAPW aside from routine (and often ineffective) ‘squawking’ about systemic limitations?   What is the role of media?  Business?   Education?  Development agencies?   Local civil society organizations? Is atrocity crime prevention a responsibility of the entire, extended UN ‘family’ or is it a responsibility of a few powerful states and some random national focal points?   It has often seemed as though the RtoP/atrocity crime prevention community has been more effective in shutting off hard questions than in welcoming them, of closing the gates on offers of energy and commitment rather than finding ways to put such to work.   But our own limitations notwithstanding, the stakes remain critical for the prevention of mass atrocities. We need to get this right, by which we mean to establish reliable and fair structures that are largely prevention oriented and that encourage the broadest possible stakeholder involvement.   We remain far from that goal.

The UN Charter does, indeed, confer upon the Council the primary responsibility for maintaining peace and security.    However, this does not indicate ‘sole’ responsibility nor does it imply that ‘maintenance’ is primarily a reactive matter rather than a preventive one.  Whatever the results of the parallel reform movements afoot within the UN regarding the membership and working methods of the Council, it is imperative that the current Council takes stock of itself and does more to address violence than fling accusations across the desks of political adversaries. Perhaps it could start with an examination of its own ‘franchise.’ After all, the more the Council is understood (or understands itself) as the only relevant player on atrocity violence the more unlikely it is to endorse and encourage other stakeholders.  However, such endorsements and encouragements are the key to an effective system of protection from mass violence that can both energize diverse conflict prevention capacities and help spare the international community the spectacle on Syria that we recently witnessed and which frankly was hard to watch.

Dr. Robert Zuber

 

The ILC takes up Crimes against Humanity

1 Nov

The International Law Commission (ILC) briefed the Sixth Committee at its 68th session about the ILC’s work over the course of the past year. Among the advancements made, the ILC presented its work on crimes against humanity (“CAH”) which it has added to its long-term programme of work. Essentially, the discussion in the plenary revolved around ensuring that any draft convention on CAH address existing gaps in the international legal system and that it complements, not replaces, existing legal instruments.

The consideration of this issue was met by general support and some concerns by member states. The Nordic countries noted that while the Rome Statute of the International Criminal Court (“ICC”) regulates prosecution of international crimes, it does not address the duties of states parties to prevent these crimes from occurring in the first place, nor does it provide a framework to enhance inter-state cooperation. Furthermore, the group cautioned against revisiting the definition of CAH, and emphasized that states’ obligations to extradite and prosecute offenders should be highlighted. Finally, the Nordic countries called on the ILC to consider responsibilities for member states to prevent such crimes as well as to present innovative measures and mechanisms to enhance the prevention framework.  Moreover, Austria, in reiterating the state’s responsibility to prosecute, highlighted that many states have not adopted national legislation to criminalize CAH at the national level, as per the Rome Statute provisions.

In addition, the Netherlands noted that the tools to prosecute, including strengthening prosecutions at the national level, promoting judicial systems etc, need to be stronger and more robust, not necessarily the definition of the CAH. Moreover, South Africa, reflecting on the need to have an international treaty that would obligate states to criminalize CAH, the significance of the Rome Statute is that states parties must adopt national legislation criminalizing statute obligations. The issue in question is not so much what the law says, but rather on having the appropriate political will or national capacity to implement the appropriate legislation. It is uncertain that a draft convention would fill these gaps. Likewise, South Africa called for more attention to inter-state cooperation for national-level prosecutions and expressed reservations with moving this agenda forward in this format because the issues under consideration are not relevant to all member states, including to all ICC states parties.  Along those lines, many states (including Russia, China and India) questioned the value of having another document of this kind, wondered about its potential complementarity with other instruments, and questioned the ILC’s continued focus on this matter.[i]

These issues of definition, inter-state cooperation, and rationale for the draft convention are all elements contained in the proposal annexed to the ILC’s report written by Prof. Sean D. Murphy. Apparently, the reasoning for the draft convention is that it would create a set of treaty-bound obligations to prosecute and prevent CAH, similar to those established by the Geneva Conventions for war crimes and the Genocide Convention for genocide.[ii] The ILC’s task would be to create the draft articles that would eventually become the “Convention on the Prevention and Punishment of Crimes against Humanity.”[iii]

Among the elements that must be decided in preparation for the draft convention include a consensus definition of CAH; national criminalization of acts of nationals, non-nationals, and acts within state territory; inter-state cooperation by parties to investigate and prosecute; and establish an aut dedere aut judicare obligation for states.[iv] In regards to the relationship with the ICC, the draft convention would complement the Rome Statute because it would fill the existing gap of encouraging the enactment of national laws that would prevent and protect against CAH.[v]

To echo the comment made by the United States, while the draft convention is welcomed, it nevertheless is tethered to challenging issues that must be discussed before moving forward. While conceptually the draft convention would fix the gaps of the ICC in promoting the tools for prevention and prosecution of CAH, it is not clear how it would bypass some of the jurisdictional challenges that the ICC faces. Arguably one of the biggest challenges in ending impunity and prosecuting perpetrators of abuse is obtaining jurisdiction. The ICC acquires jurisdiction if either the state party in question accepts its jurisdiction or the Security Council refers the situation to the court. But what happens in instances when neither occurs or when the state party is not cooperating with the ICC? If the objective of a draft convention would be to build on existing work, fill the gaps in the international legal system and strengthen operational tools, then can’t an argument be made that the jurisdictional issue needs to be resolved first, especially since such a convention would surely face challenges related to national sovereignty?

Finally, there is clearly legal and political merit to creating an international instrument that would emphasize and build on existing legal obligations for prosecuting and preventing CAH. But at the same time, the political will and capacity must be there to ensure that the instrument is ratified, implemented at national level, and duly enforced. At this time, it is not clear that the political will exists to push this process forward.

–          Melina Lito, Legal Adviser on UN Affairs


[i] GA/L/3467

[ii] A/68/10, Annex B, para. 1-3.

[iii] A/68/10, Annex B, para. 3.

[iv] A/68/10, Annex B, para. 8.

[v] A/68/10, Annex B, para. 9-13.

Justice for Genocide: Work in Progress

27 Jul

17 July 2013 marked, the 15th anniversary of the adoption of the Rome Statute of the International Criminal Court (ICC) by the international community in Rome, Italy on July 1998. The adoption is commemorated annually as International Criminal Justice Day. In celebration, the United Nations held a panel discussion on Justice and Accountability for Genocide and Atrocity Crimes.

The opening panel moderated by Mr. William Pace, Convener of the NGO Coalition for the International Criminal Court, raised questions concerning the effectiveness of current justice strategies and highlighted the importance of the International Criminal Court (ICC), its current challenges and recommendations going forward.  “We need to see faster proceedings that are effective and efficient,” stated Amb. Christian Wenaweser of Liechtenstein, while shedding light on the lessons learnt from the ICC. Amb. Eduardo Ulibarri of, Costa Rica and Amb. Stephen J. Rapp, U.S. Office of Global Criminal Justice, looked at the challenges faced by the court through the lens of a “global fabric of justice” which needs to be strengthened by mending situations of grave violence to civilians utilizing both the ICC and other legal mechanisms.

The opening panel effectively conveyed the message that the threat of punishment is insufficient to deter individuals or governments from committing genocide or other mass atrocity crimes. Given this, Mr. Adam Dieng, the Secretary General’s Special Advisor on the Prevention of Genocide, proposed that states must do more to earn the trust of their people by creating and then respecting strong institutions of government. Karen Mosoti, Head of the Liaison Office of the ICC to the UN, speaking on behalf of the ICC president, emphasized as well the “power” of justice.

The roundtable discussion with NGO leaders and survivors that followed, moderated by Hon. Thomas H. Andrews, president of United to End Genocide, highlighted some of the troubling events that have taken place in the Democratic Republic of Congo and also reaffirmed the need to bring to justice figures such as Sudan’s Omar Al-Bashir who have been accused of atrocity crimes. The overarching theme of the discussion focused on holding perpetrators accountable by providing justice for victims.

Over the years, the ICC has been dealing with a number of elites-induced conditions of mass violence where leaders engage in some form of cost-benefit calculation and aim at the acquisition or sustained exercise of power. A possible reason for this behavior could be related to the pattern of empty threats made by the international community. As Ambassador Rapp reinforced, “these acts of violence are not sudden and random, they are planned and instigated. These crimes are seen as a pathway to power but this can be broken only when we tell them that this commission will not lead to power.”

The threat of punishment – let alone an empty threat – has limited impact on government or other militant figures already intoxicated with hatred and violence. Thus the expectation of immediate relief in many conflict zones or post conflict settings should not be too high. With full regard for the timing and resource challenges associated with ending mass violence, the panel concluded with an unanswered but rather thought-provoking question posed by Ms. Eugenie Mukeshimana, “When and how do we declare the conclusion of a genocide?”

Overall, the event provided for a good discussion on issues pertaining to international justice. The title of the event implied that the event would be more focused on the legal aspect of prosecutions. Rather the discussion focused mostly on the political aspects of achieving justice for mass atrocity crimes. Nonetheless, the opening remarks as well as the roundtable discussion intersected around one important conclusion – the need for more positive interaction with the Security Council, including more regular communication with the ICC and more reliable funding made available to the Court to help prosecute the gravest of crimes.   GAPW will continue to contribute where and how we can to the evolution of more open and collaborative interactions between the Council and the UN’s various mechanisms for ensuring justice for the most serious of crimes.

 Kritika Seth

Facing History and Ourselves: GA Debate on the Role of International Criminal Justice in Reconciliation

15 Apr

On April 10, the President of the General Assembly’s Office initiated a 1 ½ day event focused on the relationship of international justice – specifically the International Criminal Tribunal for the Former Yugoslavia (ICTY) – and prospects for national and regional reconciliation. The President of the GA offered opening remarks.

The event drew a large crowd of diplomats and a few civil society representatives, though many of the folks we spoke with came for the spectacle as much as for the content.    Many were aware of the decision by several invited persons – including Adama Dieng, UN Special Adviser on the Prevention of Genocide, and Kenneth Roth, executive director of Human Rights Watch – to cancel their participation in the event precisely because of the specter of a contentious and one-sided event that hung over the room.

Those who chose to stay away had their share of good reasons to do so.  The event itself was a carefully choreographed and at times intellectually dishonest exercise that sought to rehabilitate the reputation of the Serbian government and people by attacking the foundations of the system of international justice for which Serbian government behavior was an initial impetus.

The event may have done more to polarize the international community than to help explore legitimate concerns regarding the effectiveness of our international legal architecture, specifically concerns focused on the unresolved inconsistencies of the system of justice established by the UN Security Council – itself a politically compromised body.   Sadly the event did too little to enhance understanding of how international law functions, the nature and limitation of Tribunal mandates, or the complementary functions needed to establish conditions of positive reconciliation.  It should be noted here that it was not specifically the task of the Tribunal to promote conditions for reconciliation divorced from (often neglected) initiatives by other parts of the UN system let alone by the regional States themselves.

Nor was there any discussion of how the behavior of Serbs and others led us down the path where Tribunals were considered to be a viable option to national courts which, 20 years after this phase of violence commenced, have still proven themselves unwilling and unable to prosecute their own.   The Serbs-as-victims line is not completely without merit, insofar as international efforts to end impunity were selective and inadvertently reinforced negative stereotypes about Serbian ethnic communities, even regarding the ability of their newly elected representatives to contribute as viable members of the international community.  But such damage has remedial options that should have been explored carefully, one of which should NOT have been calls to dismantle the Tribunal, especially with key figures still awaiting trial. Moreover, we must have more clarity regarding what is wrong with the Tribunals, what can be fixed, and how we would avoid making the same mistakes again in other international fora mandated to end impunity for the most horrible, State-sanctioned crimes.

There is certainly merit to attempts to understand more clearly the limitations and compromises of our system of international criminal justice.   They clearly exist, and it would be wrong to sweep them under the rug.   At the same time, many of the complaints throughout the event were as unbalanced as the alleged behaviors of international prosecutors and their judicial processes.   Below I attempt to wade through what I and others felt to be a swamp of sloppy and compromised analysis to make the following points:

  • While it is important for any Tribunal to be sensitive to the impacts of their prosecutions and convictions on public perceptions, it is commonplace for victims of abuse to be dissatisfied with the results of court action that presumes to apply justice to victims’ allegations.   Courts must weigh options and evidence.   They cannot convict if there is insufficient evidence, regardless of the need of victims for conviction.   Nor can a Tribunal impose punitive measures beyond relevant sentencing guidelines.   It would appear that the Tribunal did its work within an environment where governments and constituents were rooting for it to fail.   That it has partially succeeded in fulfilling its mandate has little to do with levels of regional cooperation, including efforts to understand and work with the Tribunal’s limitations.  The Tribunal was treated by many as more like a tax collector to be spurned than a reconciler to be welcomed, officials’ contentions to the contrary.
  • Moreover, a Tribunal is not responsible for addressing all violations of law, but only those that rise to a level that establishes a clear and compelling interest for international prosecutors. While many of us, for good reason, recoil from the notion of symbolic justice – that is, prosecuting some as a ‘lesson’ to others – there is clearly a tendency to focus the attention of Tribunals on the highest established levels of accountability for gross violence and violations of rights.  Given the many resource and political limitations of the Tribunal, there is little justification for spending time on the equivalent of ‘street level drug dealers’ when the narcotics bosses are firmly within your sights.
  • Tribunals were established by the Security Council as a function of its (self-perceived) Charter-mandated responsibility for the maintenance of international peace and security.   Many States are uncomfortable (as are we) with the recent history of Council effort to expand its own mandate beyond what we believe to be the intent of the Charter.  Nevertheless, it is not clear where the viable, authorized alternatives might be to Council oversight of peace and security concerns, especially if we accept, which some on the panels clearly did not, that State “sovereignty implies responsibility” for the protection of civilian populations.  Invoking a recycled, Westphalian notion of sovereignty, as some participants did, was most unfortunate.   States participate in the UN, not because it is perfect or because they are rushing to cede national authority to international institutions, but because they recognize the limitations of State centrism in a multi-polar world.     There are things that States want and need that they simply cannot get within a system that holds them solely and rigorously responsible for all internal matters – including the economy, security and international justice.
  • As highlighted on day 2 of the GA debate, a clear majority of States continue to support (in theory and even in practice) the work of international Tribunals while affirming the duty of responsible parties to ensure that justice is pursued in a fair, impartial and vigorous manner.  But it is also clear that ‘responsible parties’ are not confined to Council members and Tribunal officials.   They also include States and the political entities within States.   It is clear to most States that the fair and equitable pursuit of justice in countries wracked by ethnic bitterness and massive human rights violations – let alone the larger agendas of national and regional reconciliation – cannot find success in the absence of support from those very same regional governments.      It was disturbing to many participants at this event that so few commitments to reconciliation – new or existing – were made or highlighted by the very States that were criticizing the limitations of the Tribunal in this area.      It is unfortunate at best for States that have not done nearly enough to foster national and regional reconciliation to claim that a Tribunal somehow has ‘magic bullets’ to share in this area.
  • National justice systems, as many States acknowledge, are ultimately the best setting for the adjudication of grave violations of human rights.   As our program partners in Guatemala indicate, their national courts are taking responsibility for sexual slavery and other crimes committed under previous governments, albeit tentatively and belatedly. National courts in Guatemala have advantages that do not accrue to international Tribunals, including having a more contextualized understanding of the impact of indictments and prosecutions on elements as diverse as national mood and access to justice.  We must utilize and support national judicial authorities wherever it is practical to do so, though the opinion of most at the GA debate is that we must also be able to supplement such capacity at the international level where needed.

At the end of the day, the debate failed some basic tenets of intellectual and political viability.   For instance, it seemed odd at best to attack the Tribunal for not solving problems inconsistent with its mandate, while essentially letting off the hook States and other stakeholders for which reconciliation tasks are very much within their sphere of responsibility.  Moreover,  to dismiss (as did some ‘scholars’ in this process) the relevance of international criminal justice altogether without any viable alternatives  or suggestions for practically modifying the limitations which were legitimately called to account seemed to us to be an unprofessional attempt to toss the baby out with the bathwater.

We can do better than this.  Thankfully, many participating States pointed us in a more fruitful way forward.

 

—Dr. Robert Zuber

After the Spotlight: Following Post-Election Kenya

1 Apr

On 26 March 2013, The World Policy Institute and Fireside Research presented After the Spotlight: Following Post-Election Kenya, a panel discussion featuring, via skype from Kenya, John Githongo, CEO of Inuka Kenya Ltd. and Kwame Owino, CEO of the Institute of Economic Affairs. The panel discussion was moderated by Eddie Mandhry, Associate Director of NYU Africa House, and hosted by Cleary Gottlieb Steen and Hamilton LLP in New York City.

The panel discussion intended to investigate the challenges arising from the most recent elections in Kenya, particularly in the light of the domestic, regional and global complications of the 2007 elections. With over 1000 people dead, 350,000 people displaced, and the mass violence that erupted in the 2007 elections, this discussion was pertinent to the goals and mission of Global Action to Prevent War, which seeks to address broad themes and issues related to human security in diverse global regions.

On 4 March 2013, Uhuru Kenyatta and William Ruto were elected as President and Deputy President Elect of Kenya, respectively. Kenyatta, who is the son of the first Kenyan President Jomo Kenyatta, has been accused by the International Criminal Court of committing crimes against humanity in the 2007 elections. President Elect Kenyatta has since been summoned to The Hague for such indictment of war crimes. Furthermore, in 2010, Kenya became party to the Rome Statute.

The panel discussion began with outlining the importance of ethnicity and identity in Kenyan politics. According to Githongo, this election has been the most important election in Kenyan history since its independence as it marks a new constitution based on so-called “Western liberal models.” Moreover, a new voting procedure was put in place. This included a high-tech biometric voter registration system, on which $250 million was spent, and the electoral provinces were expanded from 8 to 47 providing for new positions and constituencies to encourage free and fair elections and greater representativeness. In this same vein, the former Secretary-General of the United Nations Kofi Annan founded the Election Management Body Policy, which seeks to address arising problems as well as to prevent election-related violence.

Unfortunately, the digital portion of the election failed. The IEBC, Independent Electoral and Boundaries Commission, the so-called contracted election “watchdog,” claimed that the new biometric voter identification system failed. However, opposition parties claim that this was a conspiracy to rig the elections. The two main opposition parties have since contested the results of the election, and, as a result, the official results are still pending.

QUESTIONS TO PARTICIPANTS IN KENYA:

  • So far, many governments from the international community have already called President Elect Uhuru Kenyatta to congratulate him on the elections. These governments include China and other African Nations. Given this, if the Kenyan Supreme Court upholds Kenyatta’s election, what are the implications for an indictment against Kenyatta by the ICC? What if Kenyatta fails to present himself to the ICC?
  • If the Supreme Court does not uphold Kenyatta’s election, another election will need to be held within 60 days. Does Kenya have enough money to do so?  Even more so, does the country have the capacity to do so?
  • If Kenyatta is confirmed, do we suspect there to be violence?
  • Are the institutions that were responsible for this election facing court charges for their handling of the elections?
  • What kind of media was used during the Kenyan elections? Was this majority negative or positive?
  • What kind of campaign was conducted before the elections?

RESPONSES

In the event that the Supreme Court decides on a run-off, the question of who will run the election will be tantamount. Githongo made it very clear that Kenya does not have the capacity to run another election within 60 days following the results of the Supreme Court decision. He stated that perhaps the international community could step in to run a second election, but likewise warned that Kenyans may see this as imperialist sentimentalism, which is already a sensitive issue in Kenya. Therefore, having the international community intervene in this matter may not be a viable option either. He also noted that the Kenyan people have the will and capacity to carry out the elections if necessary, but that they do not have sufficient technological capacity necessary to do so.

Githongo argued that since politics in Kenya have been organized around ethnic lines, this election has consolidated such ethnic-based attitudes even further. Furthermore, there is an ethnic divide among the Kenyan leadership that includes ethnic supremacy and entitlement. The “losers” of the 2007 and 2013 elections continue to feel exclusion from the leadership system and continue to feel as though there has been insufficient justice in the matter. This obviously also increases the likelihood of violence.

Githongo described the silence of the Kenyan people as powerful and that it speaks to the narratives that were cultivated along ethnic lines during the previous election. According to Githongo, there is a “narrative of exclusion” that constitutes an emphasis on numbers such that if an individual is not a part of the right numbers, then one’s vote does not count.

Githongo also explained that the ICC has played a huge role in the external messages of the elections, which has created a dichotomous relationship based on whether or not one supports the ICC. According to Githongo, these messages have been relayed quite simply as: “If you do not support the ICC, then you are not a nationalist and if you support the ICC, then you are an imperialist.” The campaigns were structured in such a way that communicated to citizens that they were not voting against an individual, but rather against the country or against the Western forces.

Githongo stated that it is important to speak about the role the media has played in the coverage of this election. Since the media was accused in 2007 of fueling the violence that ensued post-elections, it is now over-compensating by being ‘overly-cautious’ not to report, on the even “soft violence,” which is happening across the country. It would seem that the media is censoring itself.

Overall, Githongo stated that this election has caused Kenya to revert backwards in terms of its democratization process. Additionally, there is a worry that in the future, depending on the outcome of the ICC trials and the Supreme Court decision, on whether or not to uphold Kenyatta and Ruto’s victory.

It is expected that the incoming government will have to take Kenya out of what Githingo described as a “hole.” Addressing this “hole” is imperative as Kenya is geopolitically important to the international community and global economy. With the discovery of coal, oil and many other mineral elements, it has been argued that the Kenyan private and financial sector is positioned to take off in terms of capital formation, the quality of education and human capital, and skilled labor within the workforce, particularly with regards to financial services.

 

****Since this panel discussion, the Kenyan Supreme Court has upheld the election of President Uhuru Kenyatta and Deputy President William Ruto even with the former’s impending summons to The Hague for war crimes and crimes against humanity. 

 

–Shari Smith, Intern GAPW

Security Council Open Debate on the Rule of Law: Challenges and Solutions

5 Feb

On Wednesday, 30 January, a brief “Open Debate on the Rule of Law” was held in the Security Council. There was not an extensive conversation by Council members or non-members of the Security Council. The meeting was called to order by the Pakistani Ambassador who currently holds the presidency this month, while UN Deputy Secretary-General, Jan Eliasson, was invited to present a statement on the rule of law.

Rule of law is essentially meant to decrease conflict as well as decrease the probability of relapse into further conflict thereby directly contributing to both conflict resolution and recidivism prevention.

As a general theme, Mr. Eliasson reinforced the importance of promoting rule of law in international peace and security, as well as in conflict and post-conflict situations. By promoting and implementing international norms and standards, exemplary in 18 of the 23 current peacekeeping missions adopting provisions for the rule of law in their mandates, Mr. Eliasson reiterated the UN’s commitment to the advancing of the rule of law as formal international law.

The statement from the Deputy Secretary-General highlighted the Security Council’s approach, which compliments the mandates of the UNDP, UNHCR, and individual governments, in increasing the legitimacy of the rule of law.

Challenges

The Security Council recognizes the challenges of broad acceptance and implementation of the rule of law within peacekeeping operations, as well as the difficulties in measuring, collecting and analyzing data in areas of intervention. Better collection of baseline data also proves to be a challenge, especially in an environment where impact and change is difficult to measure, and where impact tends to be uneven. It can also be difficult to identify which factors can be credited in situations of success.

The UN Security Council believes that enhancing field leadership can be used to carry out, and measure programs in respective areas, through continued systematic collection and analyzing of data.

Solutions Identified by the Security Council

• Coordinate support to the field through UNDP and UNHCR area programs.
• Evaluate the impact of work already done and create baseline data to measure progress.
• Recognize and place more importance on national ownership.
• Increase data collection in conflict and post-conflict states to strengthen the rule of law.
• Increase planning and prioritize in order to mitigate future risks.

Examples of Progress Made Using Data Collected

• Thus far, UNDP has been working in Haiti, Liberia and South Sudan to incorporate rule of law indicators such as, law enforcement and transformation measures.
• In Malawi, UNDP supported a baseline study, which has been used to shape the Government’s Democratic Governance Reform Strategy.
• In Bosnia and Herzegovina, data collected through public surveys have been used to develop National Transitional Justice Strategies.
• UNDP is expected to publish a “Users Guide to Measuring Rule of Law, Justice and Security Programs,” next year.
• The Department of Peacekeeping Operations and the UNHCR has developed the UN Rule of Law Indicators Project, which allows governments to gather information on law enforcement, the prison system and to measure and track changes over time.

Examples of Progress Made Through the United Nations, Individual Country and NGO Collaboration

• In Côte d’Ivoire, the Ministry of Justice, in conjunction with the UN peacekeeping mission, has reopened 17 courts and 22 prisons.
• The UN stabilization mission in Haiti has opened 18 legal aid offices.
• The Serbian government, in conjunction with local NGOs, has provided 20, 000 Roma with official documents to prevent them from becoming stateless. Furthermore, 250 individuals have been indicted by the International Criminal Tribunal for war crimes, crimes against humanity and genocide, and more than 120 individuals have been convicted.

Overall, the United Nations Security Council has taken a holistic approach to development, justice and security by including rule of law in conflict and post-conflict situations, and by developing tools and systems to help states advance in this area. Continued collection of data will support national policymaking efforts as well as increase country responsibility, ownership and accountability. Current field initiatives are helping to deliver justice, and keep countries on track to building and achieving stability.

—Shari Smith

Shari is a new intern with Global Action for the spring semester.