Category: ICC

would bashir have resigned?

Opinio Juris was asking for verification on Rob Crilly’s contentious satement in his Telegraph op-ed today:

Then, last year, the campaign won its second big victory, when the ICC issued a warrant for the arrest of Bashir on war crimes charges. But that, too, is backfiring. Before he was indicted, Bashir told regional leaders and his confidantes that he was ready to step down: after 20 years in office, he was ready for a holiday, and retirement to a smart new villa in the north of Khartoum. Now, fearing arrest by a new regime, he has promised his inner circle that he will fight on. He is not a man to bow to pressure – nor is he the monster of popular imagination. He is certainly a war criminal, but he has shown that he can be pragmatic, as when he signed a ceasefire with rebels in the south in 2005.

Via Twitter, Crilly confirmed that this came from three solid sources. He elaborates further:

I’ve been sitting on this for a while and have debated it several times with different Darfur watchers. It came from three different sources, including Bashir’s inner circle and, second-hand, via a head of state. It may be that he was never going to step down. It is impossible to know exactly what would have happened in different circumstances. However, the sources I spoke to are rock solid on this and I believe it’s another example of how going to the International Criminal Court was a mistake. Bashir has no choice now but to fight on.

Let’s see how the ICC takes this.

icc in kenya: bad news?

Over at Opinio Juris, Julian Ku highlights an important passage in the ICC pre-Trial Chamber’s recent approval to investigate crimes against humanity in Kenya. The opposing judge highlights that going ahead would:

… broaden the scope of possible ICC intervention almost indefinitely. This might turn the ICC, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Taken into consideration the limited financial and material means of the institution, it might be unable to tackle all the situations which could fall under its jurisdiction with the consequence that the selection of the situations under actual investigation might be quite arbitrary to the dismay of the numerous victims in the situations disregarded by the Court who would be deprived of any access to justice without any convincing justification [emphasis added].

This is an important statement considering the difficult position the ICC already finds itself in. For more highlights follow the link to Ku’s post. Here’s a short article in the Daily Nation (Kenya) and from UN News:

[Kaul] concluded that there was no reasonable basis to believe that the crimes in Kenya were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization, which he said was required by Article 7 of the Statute.

But, really, what are Kenyans to do? The courts are corrupt; the police would never offer adequate protection, easily bribed; Kibaki and Odinga will repeat the same buy-votes-incite-violence methodology in the next elections; the TJRC is a joke. If this is not the ICC’s place [in this particular case] to step in and protect those harmed by a State where there exists no other legal recourse or protection, who’s is it?

of more violence.

I am of Mrs. Lynch’s depressing opinion:

The unfortunate consequence is that violence, while far from inevitable, seems increasingly likely. At the heart of the problem lies a corrupt and tarnished political system characterised by an ‘ethnic logic’ of political mobilisation and support. To understand local potential for violence one must recognise the interplay between: a highly centralised system in which real power lies with the Office of the President; a lack of faith in key institutions (such as the anti-corruption and electoral commissions, parliament, judiciary and security services); a perception that the post-colonial state is (and has been) ethnically biased; communal discourses of past injustice and marginalisation regarding ‘lost lands’ and political patronage; pressure on elites to present and further ethnic claims; the use of inflammatory and chauvinistic or defensive ethnic language by political candidates and local opinion formers; the use of violence as a political and economic strategy; a culture of impunity for corruption, ethnic incitement and organisation of violence; the subsequent normalisation of violence; and finally, but not least, high levels of poverty, inequality, and un (and under) employment especially among the youth.


Guest Post: youth cry out for leadership.

KISIMU, KENYA – WILLIAM ODENGE

Early in the morning today, I met a group of young boys in Obunga Slum complaining bitterly about the Kazi Kwa Vijana initiative -the youth employment programme that was launched by the Government in March this year after it promised to facilitate the creation of opportunities to enable our youth to be gainfully employed and to earn a decent livelihood. The job supervisor had decided to take bribes from these young people so as to secure them a place.

This shows a need for the government to streamline the Kazi kwa Vijana initiative which is a noble idea intended to keep jobless youth busy because it targets young people who are given first priority in working on projects such as building or repairing infrastructure and public amenities around the areas they live. The aim of this programme is to stem the social ills brought about by unemployment, idleness and poverty.

However, if not carefully implemented, it may in the long run aggravate the same problems it is trying to solve. Corruption which is our country’s major problem is slowly creeping into this intervention. First, it would be prudent to define minimum and maximum age limits of the target group, bearing in mind unemployment and poverty affect everyone. Second, since these jobs are temporary, how will the youth be engaged in-between projects? Third, these projects might disadvantage females because they are labour intensive. Fourth, a feeling of entitlement could also creep into these groups and they may start demanding employment as a right regardless of whether they have the technical expertise. Fifth, how will projects passing through different areas, such as road construction, be handled? Will contractors be required to employ fresh labour every time they come to a new region?

As poverty entrenches itself deeper in the country, the youth are the worst casualties. If you visit many homes in Kisumu, you are likely to come across young people barely in their twenties supporting their families. This is mostly in the form of ‘hustling’ for a meal for themselves and their siblings. In these instances, parents have abdicated their responsibilities. Thus, the youth have no one to turn to for assistance.

Consequently, in a bid to forget their tribulations, many have embraced the use of hard drugs. We should not be surprised that these young men and women decided to torch the country after the disputed 2007 presidential elections. This is the typical reaction of disillusioned youth who exhibit poor judgement skills and consider burning and pillaging a worthwhile cause.

For a long time now, the young have been short-changed by politicians. Knowing they command numbers, many of the politicians have ascended into power using the hackneyed phrase of “putting the youth agenda at the top of their list if elected into office”. When politicians ascend to power, they only engage in party politics instead of helping their supporters set up money-generating projects. It is now getting clearer that the youth in Kisumu have started to refuse to be divided along partisan, tribal lines when they are all facing the same challenges. They say they don’t want a repeat of the 2008 violence. This makes them very cautious even with the raging debates in the country that might spark some violence.

For example the TJRC. In real sense the Truth Justice and Reconciliation Commission (TJRC) commissioners were sworn in last week. The cabinet decided to have the TJRC try the post-election violence suspects. These young boys from Obunga are wondering how credible a judicial solution will be established to punish the masterminds of post-election violence.

Indeed, TJRC as transitional justice mechanisms has failed in other African countries because more often than not they have been abused as political tools to buy time. They are also concerned that substantive discussions about the design, expectations and the deliverables by the TJRC could be lost in the din of this raging debate. Granted, the conditions must be right for the TJRC to be a success, but undoubtedly the perception that the commission could be a talking shop to entrench impunity does not help that cause. However, the boys agree that one of the greatest contributions of the TJRC is that it creates space for victims to publicly tell their stories in a manner that brings relief. They add that the idea of compensation could be an overriding motivation.

Out of this raging issue, the boys are crying out for leadership. To them, the following issues raise concern.

Integration and Cohesion: The country is still divided along ethnic, social and political lines. It is regrettable that today, political leaders are not playing their role of giving leadership to efforts aimed at promoting national cohesion and integration. The National Cohesion and Integration Act be implemented fully.

Famine: It is regrettable and saddening that after four decades of independence, the government is still unable to put in place policies and mechanisms to safeguard the supply of food for Kenyans. Hunger in Kenya has less to do with drought and more to do with lack of leadership since it is man made and orchestrated for personal gain. How sad it is to know that there are people who are profiting from the suffering of Kenyans? Urgent measures to remedy this are required.

Displaced Persons: There is still concern that after more than one year after the post election violence, thousands of Kenyans remain in internally displaced persons camps. Is the government serious about resettlement?

Government spending: The coalition government is burdensome rather than facilitative. Ministers spend their time quarrelling about peripheral issues rather than undertaking their duties. In this understanding, the admission that the government has no resources for development is grave for the nation. Why should a government that is cutting down on development spending continue to spend so much money to finance a bloated and non-performing cabinet? The government should get its priorities right.

Creation of Jobs: Appreciating that unemployment among the youth is so grave as to cause a crisis in the country, they were taking a keen look at the government’s initiative to youth unemployment. However, the government has done commendable effort and is urged that the initiative be up scaled to match the magnitude of unemployment in the country.

Constitution Review: There is great merit in fast tracking the constitution review process. They called on Kenyans to rise up and demand that they regain the leadership of the process from the Parliament. Furthermore, they urged that the constitution review process be accompanied by extensive civic education implemented by civil society actors to ensure that consensus is reached widely on the contentious issues. It is now incumbent upon the Office of the President and he Prime Minister to ensure that all government efforts or exercises are devoid of corruption, nepotism and tribalism.

judging the icc.

Pulled this off Sudan Watch. A response to de Waal’s “Grading the Prosecutor – and the Bench”, by Julie Flint:

… I have just spent two weeks in Darfur and do not recognize the place depicted either by the Prosecutor or a substantial part of the media. (More of that in a later posting.) It is true that the war-affected in the camps want Bashir indicted, and want him indicted for genocide — the buzz word of the last five years, which has reached every corner of the camps, and the cornerstone of a multi-million-dollar activist movement. But it is equally true that every other Sudanese I spoke to has profound misgivings about the arrest warrant — ranging from fears of uncontrollable instability if this government falls apart to ‘genocide against the Zaghawa’ tribe of Minni Minawi. In the words of one astute Darfurian: ‘The real genocide will happen if Bashir is removed. Zaghawa, and to a lesser extent Fur, will face a very critical position if Bashir is removed.’

the ‘western’ ICC

Harnessing the ‘neocolonial rhetoric’ debate, corrupt African leaders protect their own skin:

What precisely is that Egyptian/Arab/African position? There’s nothing that’s well-defined (outside of Khartoum), but the general view seems to be that the ICC is becoming one more form of neocolonialist oppression of poor states by the West. That’s a tired old drum to be beating and probably isn’t the real truth, but the perception is somewhat fair. Developing countries rarely have much of a say in how international treaties are hammered out, and the ICC’s composition and actions certainly reflect Western biases. Even though most developing states are signatories to the Rome Statute, it’s pretty difficult to argue that the ICC necessarily reflects the values and norms of their societies.

And that’s where things work somewhat to al-Bashir’s advantage. There’s a widely-held view in Africa (and, to some extent, in the Arab world) that decisions have to be made by top leaders who come to a consensus. And it’s very rare to get a consensus on something as contentious as removing a leader from office. That’s why we almost never see the African Union’s member states pressuring corrupt dictators out of office (Cough-cough! Mugabe! Cough!) What head of state wants to go after corruption or war crimes or general unpleasantness when he’s a recipient of corruption’s benefits and privileges, etc.? Or even when he or she is simply governing contested land? We’re unlikely to see much support for al-Bashir’s removal in most of the continent’s states he would choose to visit. And so the tour continues…

cemented.

As meningitis spreads in the Kalma refugee camp,

Al-Bashir, meanwhile, says he does not want a freezing of the case, but its complete cancellation. “Whoever wants us, don’t go the Security Council or the ICC. Whoever wants us, come here directly,” he proclaimed at one of the many rallies he has held since the warrant was issued.

Alex de Waal, a Sudan expert at the New York-based Social Science Research Council, said Khartoum is not “looking for a compromise right now.”

“They are calling the bluff … Now that the international community fired their big shot, what else can they do? Add more charges?” he said.

doubting the icc.

Alex de Waal questions the ICC and current procedures:

In turn the fact that the Prosecutor was able to demand an arrest warrant against a sitting head of state, without the possible risks for peace and security being subject to debate at the UN Security Council, reveals a major weakness in the international architecture. The Rome Statute of the ICC requires the Prosecutor to consider the interests of justice and the victims when deciding whether to prosecute. But he is within his rights if he interprets this is a narrow and negative obligation, which is only not to prosecute if the individual characteristics of the accused (age or mental state) don’t allow for a meaningful trial, or if the victims and witnesses might be harmed by a prosecution. The UN Security Council has the responsibility for weighing the interests of peace and security. But with the U.S., Britain and France (the ‘P3’) all sensitive to the demands of domestic activist constituencies, and the Secretary General abdicating any responsibility for the issue, the Council has done nothing except rebuff the entreaties of the African Union.

There is also no mechanism which obliges the UN Security Council to listen its African counterpart. More than 60 percent of UN Security Council business concerns Africa, but there are no permanent African representatives on the Council and Africa has no veto. Last July the African Union Peace and Security Council voted for the ICC action against President Bashir to be suspended. Twice the AU petitioned the UNSC for this to be considered, twice it was rebuffed. African governments, including Sudan’s neighbours, argue that the P3 have the luxury of endorsing high principles to satisfy their domestic constituencies, but it is Africans who will pay the price if Sudan’s peace agreements unravel. It is African peacekeepers who are in the front line if Darfur explodes. This division of responsibilities was workable when the UN Security Council was sensitive to African concerns, and Africa had no option but to go along with P3 dictat. It’s no longer acceptable. The mantra ‘no peace without justice’ is not a substitute for political analysis.

in the near future, darfur.

Self-defense to genocide?

My hunch is that Mr. Bashir’s calculation is twofold. First, he hopes that if there’s enough suffering in Darfur, the United Nations Security Council will approve a one-year delay in the court’s proceedings (he miscalculated, for that won’t happen). Second, he has long wanted to get rid of aid workers in Darfur, partly because they are the world’s eyes and ears there.

As pointed out by Kristof, here’s a section of what Gen. Merrill McPeak, the former Air Force chief of staff and a co-chairman of the Obama presidential campaign, suggests in an op-ed:

Air power plays a central role in Bashir’s military strategy, so establishing a no-fly zone remains the most promising initiative to halt the atrocities in Darfur. During her Senate confirmation hearing, Hillary Clinton acknowledged that such a proposal was under consideration. As a practical matter, imposing control over Sudanese airspace must involve NATO and European Union allies, in particular France, which has a suitable airfield at Abeche, in eastern Chad. Allied air forces could and should provide much of the force structure, principally fighter aircraft, but a U.S. contribution — especially of aerial refuelers and command-and-control aircraft — would be essential. About a squadron of each type of aircraft would be more than enough to end the impunity Sudanese military aviation now enjoys.

And and an interesting article on the “Making Sense of Darfur” blog criticizing aid agencies for failing to prepare for this day – their expulsion. While the focus should be initially on the tragedy unfolding because of al-Bashir, the author has a point. This was inevitable, aid agencies should have been initiating – as much as possible – the necessary structures for self-sufficiency. However, for those on the ground, do such options exist? Is there a means of ensuring this self-sufficiency considering the environmental and political setbacks?

The first impulse of the media and international community has been to focus on the urgent need for aid to continue. But I think many people should consider why aid needs to continue so desperately, despite years of work and billions of dollars invested. How can it be that after 28 years of being there (as one organisation proudly states), 2.2 million people are dependent on international aid agencies for basic needs? For me, this is the real tragedy. Speaking to a very senior and respected African activist, he tells me that life in a camp is generally like being in prison: in most camps there is no farming, no jobs – no way to be self sufficient in the least; the lack of security outside the camp makes it impossible to leave; while aid workers come and go, people live in these camps for many, many years.

….

In 1987 a group of organisations worked with displaced communities in a town called Yei in South Sudan, completely cut off from aid: “There was little hope of receiving much in terms of food or other humanitarian aid: road access was blocked by the rebels and limited to military-escorted convoys every few months”. They agreed the only way to truly help communities was to encourage them to grow food wherever possible, help them to run their own medical and education services themselves, and support them to govern themselves in their traditional manner. Compared to camps in the nearby town of Juba, where malnutrition, alcoholism, divorce and delinquency were rife, communities in Yei resumed an almost normal life, providing for themselves, educating their children and caring for their sick. Although Yei was a displaced camp, it was unrecognisable as such. It was from this experience that AAH-I emerged.

sudan, continued.

I should learn to bite my tongue/fingers. Here’s more from the FT on the al-Bashir indictment. This passage jumped out at me:

But the arrest warrant for al-Bashir is the big one. Not everybody, however, is convinced it will serve the cause of either peace or justice. Alex de Waal, a very knowledgable Darfur watcher, has posted a devastating indictment of the ICC case on the “Making Sense of Darfur” blog. He argues that: “The Public Application is not in the interests of justice, peace and democracy for Sudan. Pursuing an arrest warrant against a head of state is tantamount to demanding regime change, which is in contradiction to the international strategy of negotiating with the Sudan government to achieve peace and democracy. The approach is therefore a gamble with unknowable consequences and very large risks.” [emphasis added]

The Khartoum government has made it especially difficult. International pressure and internal negotiations eventually ended the South-North war (for now). Can a similar long-term peace plan be implemented in Darfur? Will this make for a more comprehensive, well-rounded and sustainable peace? In other words, can one negotiate with the Sudanese government and will they stick to their promises? And, with what we’ve seen happen in Iraq and Afghanistan, can Western-based human rights values be yielded to knock out unfavorable players? Or, am I splitting hairs and it simply comes down to the thousands displaced and dead in the conflict and the undeniable fact that Al-Bashir is implicated?

The “Making Sense of Darfur” blog on the SSRC is also a good source. Also, check out this IHT article which explains the basics, and highlights the difficulty of proving genocide (and why it might not be worth it).

al-bashir.

Whether we can take the International Criminal Court seriously at all times, here they go indicting Sudanese head of state al-Bashir. He was accused on

… charges of war crimes and crimes against humanity arising out of the war in Darfur …

But, not genocide. While some were looking for that key word,

Two of three judges on the court panel which issued the warrant declined on the evidence currently before them to press charges of genocide. It said the prosecution had failed to provide reasonable grounds for believing that the Sudanese government had the specific intent to destroy three ethnic groups in Darfur.

Regardless, and based on the ICC’s track record with Lord’s Resistance Army (LRA) Kony and others, I can’t help but wonder, what’s next?

And, while browsing through all the opinions out there, I stumbled on a piece with a very strange juxtaposition: Archbishop Desmond Tutu (for the indictment) vs. Franklin Graham, son of famous preacher Billy Graham (against the indictment). Regardless of reputation, both are making viable points that have been brought up time and time again.

With the little I know about the peace vs. justice situation in Northern Uganda, I would argue that both are intertwined, as Tutu suggests, but must be dealt with in a fashion that cooperates with the cultural and social values of those most affected.

Regardless, a regime change in Sudan is imperative. The current Khartoum-based administration has caused pandemonium across the country, from the violent war in the South to Darfur and back. Securing their own riches while isolating (and terrorizing) the rest of the country into submission is not sustainable.

In the long run, this business of international law and human rights sparks a great debate. When reading briefs like this, where Egypt is opposed to the indictment, one realizes that the Western-model of human rights is contested by many. As far back as the Universal Declaraction of Human Rights, non-Western countries were opposing the arbitrary and Western-ruled idea of human rights, a form of ‘neo-colonialism’. While other peoples, like indigenous peoples, were complaining that their idea of human rights – secured in community rights, oral histories etc. – were being completely disregarded and ignored.

While I beleive it’s impossible to throw away the idea of basic human rights (everyone wants basic water, food and shelter for their families), it should be recognized that our interpretation of what this consists of (aside from the basics mentioned above) is the standing norm in law, while other opinions have been sidelined. And, once again, I’m not trying to say that human rights is not a positive development in our move towards global peace and cooperation, however, the way in which it has been formulated could be considered harmfully hegemonic.

The ICC.

A very interesting article by Stephanie Nolen on international justice and its effects on Africa, with a focus on Mugabe. A must read.