ICC Neutrality Keeps Not Existing

In December of 2003 the International Criminal Court opened its first situation, the civil war in northern Uganda, at the referral of the Ugandan government. From the beginning, the Court opened itself to criticisms with President Yoweri Museveni of Uganda with Chief Prosecutor Luis Moreno-O’Campo’s joint press release on the referral. Critics challenged that the ICC was being used as a tool by Museveni and that the Court would not approach the situation from a balanced perspective.  Indeed, the ICC has only issued five indictments for LRA leaders to date, despite evidence of egregious human rights abuses by the Ugandan army against civilians in the region.

Since this biased introduction to the world stage, the ICC has tried to navigate between government assistance in access on the ground and the desire for judicial fairness. While there was marginal success in some situations, the ICC has more recently continued its record of only investigating one side of the conflict, most recently in Libya.

Last month, in a piece questioning the “Libyan model” and whether it should be used in Syria, Vijay Prashad outlined some of the missteps concerning biased justice in Libya. The ICC made huge strides in getting American and Chinese support for the UNSC resolution authorizing NATO assistance in the Libyan Civil War, but has since faded into memory by not being proactive to try those it has indicted and by refusing to step forward in investigating rebels or NATO forces.

Prashad also points to two damning reports on the transitional government’s abuses. Amnesty International has outlined the problems of torture and abuse in detention facilities in post-war Libya, along with discrimination against women, foreigners, and black Libyans. This was followed by a report by the Independent Civil Society Fact-Finding Mission to Libya (PDF) which stated that it was concerned by revenge attacks and intimidation against alleged Qaddafi loyalists, including the potentially extrajudicial killing of Muammar Qaddafi, allegations of executions of detained loyalists, instances of abuse and torture in detention facilities, and the possibility of civilian targeting by NATO.

Some of these allegations have existed since before the war was even over, and the ICC has taken virtually no action to investigate the other side of the civil war. The ICC continues its course of using its allies’ assistance to investigate and indict the other side while turning a blind eye to abuses committed by its allies.  The ICC has been able to issue indictments on all sides in Sudan and Kenya, but this record is dwarfed by the overwhelming situations in which the Court benefits from its silence.  From Uganda to Libya, the ICC has yet to prove that it can truly move beyond victor’s justice.

Advertisements

Seat Belts and Human Rights Prosecutions: A Digressive Review

Having taken several classes centered on accountability for mass atrocity crimes, I’ve run across a lot of common questions. One question is the notion that we all know that killing is bad – mass killing exponentially so – so what effect does making it illegal or prosecuting it really have?

A couple of years ago I ran across, of all things, Secretary of Transportation Ray LaHood speaking on CSPAN (I know, right?). I have no idea what the circumstances were, but he detailed that in the past people rarely used seat belts despite knowing that they protected them. After states began to make it illegal to drive without wearing seat belts, more and more people wear them now. According to some surveys, many wear them not to be in line with the law but because they are safe and that is what you do when you are in a car. In a very weird connection and long stretch, you could say the same about atrocities – after a while the fact that one faces prosecution could change the mindset about actions one is willing to take. It’s weird, but it’s a connection. When society speaks up about what is wrong, fewer people are willing to commit that act.

Enter Kathryn Sikkink, professor at the University of Minnesota and author of The Justice Cascade. I’m currently halfway through the book and it makes a strong case for human rights prosecutions. The book gives an intricate history of human rights prosecutions in Greece, Portugal, and Argentina. Sikkink also works to debunk the notion that the specter of prosecutions is dangerous for transitional democracies, another concern I’ve heard in academia and in advocacy.

But the heart of the book is that Sikkink looks at the diffusion of justice and accountability between countries. The first change in the international justice system was to make individuals accountable instead of just states – and this has definitely grown as more perpetrators are indicted and prosecuted for their actions. She also notes the increase in international, foreign, and domestic human rights prosecutions across the board by using a database.  The database counts all “processes of prosecution” regardless of verdict and uses the State Department’s human rights reports as its source.

According to her research, Sikkink found that Latin America, which has had the most human rights prosecutions of any region, is also the leader in successful democratic transitions. Most of the allegations that trials could lead to a renewal of conflict seem rooted in an attempted coup in Argentina when prosecutions expanded to include more suspects. The coup failed and the trials continued and even spread across the region, fostering democracy. Somehow, the threat has lived on in policy circles.

She also found that more prosecutions foster better human rights practices, and that if four or more countries in one region have prosecutions, the countries nearby could benefit even without having prosecutions – accountability and deterrence cross borders. The question is if that deterrence only works in a regional context or if it can lead to a global deterrence through international prosecutions. I’m only partway through the book so far, but Sikkink makes a pretty good case for how prosecutions can impact societies for the better.

Why Uganda? Why Now?

So, I’ve been working on revising a paper about US relations with the ICC for the past week or so, and I find myself revisiting the issue of Obama sending 100 troops to Uganda to help hunt down the LRA.  I went to a professor of mine to talk ICC, and we ended up debating the deployment quite a bit, discussing the reasons for sending troops to Uganda now.

I wrote a pretty jumbled analysis of the decision already, but I concentrated on whether or not it was a good idea and if it would work. I barely scratched the surface of why. But it’s definitely worth asking. The LRA have been committing atrocities pretty much from its inception in the late 1980s. The ICC issued indictments for Joseph Kony & Co. in 2005.  The LRA were driven out of Uganda in 2006, and civilians have been leaving displacement camps for home ever since. Why is the US sending military advisers there now?

It’s definitely true that there is broad grassroots support for this type of action.  Between Invisible Children and Resolve, there are tens of thousands of supporters who have been writing letters and attending local lobbying meetings pressing the issue.  I was among over a thousand people who went to DC in the summer of 2009 after the LRA Disarmament and Northern Uganda Recovery Act was introduced, lobbying for its passage.  Ultimately the bill passed with more support than any Africa-related issue in US history (allegedly).  But that’s only part of the story.  The law passed last May, and the White House’s strategy was released last November. Why did it take nearly a year for (part of) the strategy to be implemented?

Some suspect that this is America’s pushback to Sudan’s power in the region.  The US pushed Sudan to oust Osama bin Laden back in the day, and Bush was a huge supporter of South Sudanese autonomy and later a critic of Khartoum’s actions in Darfur.  Obama has been similarly vocal about both issues.  So, it’s pretty clear that the US has staked out its position against the Sudanese government.  While it’s true that the LRA enjoyed Sudanese material and financial support as well as safe haven in the past, it seems that such a relationship hasn’t existed for years.  Because of this, I don’t think that the deployment of 100 troops in neighboring states is quite the statement to Sudan that others say it is.

One idea that is gaining some traction is that the US is rewarding Uganda for its actions in Somalia.  Uganda has been one of the primary military participants in AMISOM, the multilateral effort to fight al Shabaab. Uganda has also suffered from this engagement at home with the World Cup bombings in 2010 being linked to al Shabaab. The US hasn’t been publicly involved in fighting in Somalia since the debacle almost two decades ago, but it has been a longtime supporter of the mission. Indeed, several members of Congress at the House Foreign Affairs Committee hearing on the deployment in Uganda made mention of Uganda’s work in Somalia.  But I wonder if this really makes sense, but that stems mostly from my skepticism that Museveni cares that much about the LRA since he never really cared in the past unless it helped his image during election season.

One thing that I haven’t heard many say, and I think it’s worth addressing, is the state of US-ICC relations.  The Bush administration was staunchly opposed to the International Criminal Court, and even undertook a campaign of isolating the Court in hopes of destroying it. That is, until Colin Powell called the crisis in Darfur genocide.  That began a slow and gradual detente as the US abstained in the Security Council vote to send the Sudan situation to the ICC and then provided logistical support to the Ugandan military in catching Kony.  The Obama administration has been more involved with the ICC than its predecessor, and even voted in the Security Council to refer the Libyan situation to the ICC.  It seems like assisting in the apprehension of the ICC’s first indicted criminals falls neatly into this trend of easing the tensions between the United States and the International Criminal Court.

It’s Rebel Leader-Hunting Season

On Friday, the press began to run numerous stories about the announcement that President Obama had authorized the deployment of about 100 combat-ready troops to Uganda to take an advising role in order to help capture or kill LRA leaders. Obama wrote a letter to John Boehner about the deployment two days after the first troops had landed in Uganda, placing the statement square on a Friday afternoon. This was a scrolling headline for some, but for me it was all over the internets. Stuff like this happens when you’re Facebook is filled with Invisible Children activists and your Twitter is dotted with development wonks and academics that are experts in the region. Let’s look at what exactly is happening here.

Let’s start with why this is happening. In the letter, (which can be found here) Obama references that the LRA are impacting regional security, the passage last year of the LRA Disarmament and Northern Uganda Recovery Act, and national security interests in the region. The troops are destined for Uganda, but will be going to the DRC, CAR and South Sudan as long as each of those countries agree to host them. The troops will be combat-ready, but will only be serving in an advisory role.

Full disclaimer to the few readers that don’t already know, I volunteered with Resolve to help advocate for passage of the aforementioned bill. I’ve continued to work with them to advocate for more action from the Obama administration on this issue. That said, I’m not sure where exactly I stand on this decision. Over the years, I have had at least a few conversations with fellow activists about the possibility of deploying American forces – advising or combating – to remove LRA leader Joseph Kony. Let’s take a look at some of that, shall we?

Why don’t we send some U.S. troops to just go snipe Kony?

Well, for starters, that’s a really bad idea and it probably wouldn’t work.  First we’ll be needing permission to run the operation (well, I guess we don’t need permission if we decide to just fly in on a stealth helicopter and shoot him in the face, but still. We should). Kony could be in one of a few places: northeastern DRC, southern CAR, South Sudan, or Darfur. The DRC has a history of being used as a training ground for atrocities, place to push a rebel group you don’t like or place to start your own rebel group if you want. It’s not fond of having more armed forces in the area. The DRC has already asked the Ugandan military, currently hunting for Kony, to get out. Twice. And it tried to kick out MONUC despite never really solving the 20-rebel-groups-hide-here problem. Supposedly Kabila is “pleased” with the recent U.S. decision, but I can’t read French and he’s changed his mind after the fact before.

Anyways, if we were to send U.S. troops in to do the job, they would face quite a few setbacks. The terrain is densely forested and rural, and there are very few chances to use surveillance such as cell phones and satellite tracking. Kony has historically established wide networks of soldiers around him so that he knows when trouble is afoot. That’s how he’s survived for 25 years, outlasting the Holy Spirit Movement and the UPDA and evading the UPDF, SPLA, and even Guatemalan special forces (killing 6 when the UN tried to catch him a few years ago). He will know what’s up. Not knowing the terrain or the language puts the forces at a disadvantage against a guy who has literally lived in the bush for twenty years.

That, and the specter of Somalia (despite huge differences between the situations) seem to be why Obama has gone with the advisory route, which still smells a little bit like Vietnam to many, but that is also a vastly different situation. Museveni has already given assurances that the Americans are here to advise, not to fight, simultaneously boasting about how the UPDF don’t need help to fight their wars. And so the US “personnel” have begun to arrive in Kampala, and will pretty soon begin to deploy to the other respective countries in the region.

Except for Sudan. While the LRA are currently scattered across DRC, CAR, South Sudan and Darfur, a year ago reports said that Kony was en route to Darfur. Darfur would be part of Sudan, and thus out of reach to both central African militaries and US advisers. I feel like if anybody asked Omar al Bashir if it was okay to enter Sudan to apprehend a leader indicted for war crimes, he might think you were talking about him since, you know, you could be. If Kony hasn’t made it to Darfur yet, he’s probably thinking about it.

But why send the advisers there now?

The LRA Disarmament and Northern Uganda Recovery Act passed in May of 2010, and the requisite strategy on the LRA was released in November of that year. Since those have been around for a while, some are asking, “why now?” Well, since then, all has been quiet on the LRA front until Resolve mentioned AFRICOM’s nudge-nudge that a deployment could happen soon. ABC News reported that the plans have been in the works for over a year, but that resources were not available until now. Some have speculated that the U.S. is rewarding Uganda for its contributions to Somalia’s fight against al Shabaab.

I don’t quite know if that makes sense. Uganda itself is really not concerned with the LRA anymore. The government is dealing with economic protests and its huge effort with AMISOM fighting al Shabaab. The LRA haven’t been active in northern Uganda for years, and when I was in Uganda last year many people told me they were far more concerned with the upcoming elections and Museveni’s continued rule than with a rebel group in the DRC – especially in central and southern Uganda, where civilians never really faced the threat of the LRA. This deployment is fueled by grassroots efforts, and I think that Uganda will accept it as another way for the UPDF to project power in the region.

One other piece that fits nicely that I haven’t seen reported is that it is yet another nod from the Obama administration to support the ICC. After Bush relaxed the hatred late in his term, Obama has stepped it up with a yes-vote on the Libya resolution and a heavy, heavy presence at the ICC Conference last summer. Assisting in the capture of Kony could show real U.S. support for the ICC without all the supposed worries of actually joining up and ratifying the Rome Statute. It’s an international and human rights win without any of the duke-it-out-with-Jesse-Helms bad press.

Will it work, and if not, what will?

I’ve been pushing for the Obama administration to address the crisis for a long time. The region that the LRA operate in has almost zero infrastructure and is completely ungoverned. This is why there is so much lawlessness in these corners of the DRC, CAR, and South Sudan. The key to protecting civilians and ending these types of insurgencies is to make it difficult to operate there. Whether the advisers go there or not, the thing that needs to happen is more support for infrastructure in the region.

Speaking specifically to the LRA, Kony has got to go. There have been reports about how fractured the LRA are, but they are usually followed by a former abductee mentioning that Kony is communicating with other leaders constantly. The LRA has a highly concentrated command structure, and getting rid of Kony could actually resolve the entire issue.

While training troops and assisting with intelligence to find Kony, we also need to help build up government legitimacy and accountability. Resolve indicated in a recent post that the US personnel will be able to investigate UPDF abuses “and (hopefully) hold them accountable to a higher human rights standard as they interact with civilians across the region.” I have yet to see that reported anywhere else, but if that is true it is a huge step. The Ugandan government’s handling of both the civilian population in northern Uganda and abroad has been abysmal and needs to be addressed. The UPDF itself testified that it had committed 501 human rights abuses in 2005 alone. If a handful of advisers can simultaneously help catch Kony and bring accountability into the UPDF, it will go a long ways.

In summation, the decision has little guarantee of succeeding, but there is little risk for the US. AFRICOM has said that the advisers will not be accompanying on any missions to actually capture Kony, only on training missions. This means American soldiers should not be in any real danger, although that’s really hard to say for sure. If Kony is captured, it will be an easy foreign policy win and a great step for human rights in central Africa. If it doesn’t work, the advisers can quietly return and say they did their job, which was to train the regional forces. There’s a lot to gain and not a lot to lose, so why not try it?

Foiled by Libya

So, this weekend I’ve holed up in front of my computer, wrapping up my paper on the United States and the International Criminal Court.  After spending weeks with piecemeal research and months of hypothesizing, I’m putting everything on paper (once it’s printed).  My paper starts with an introduction to the ICC, followed by page after page of American grievances.  I’ve talked about Clinton and Bush, and I am just working on the supposed lane-change of the Obama administration.  I’m gathering research on the review conference from this summer.

My thesis:  despite the near-fact that the U.S. will not be joining the Rome Statute, the Obama administration should embrace the ICC by working alongside the Court and acknowledging its usefulness.

Yesterday, the Obama administration did just that.

Time to re-work my thesis.

The Rome Statute

This is Uganda-related, but not related to my presence here.  Starting this passed Monday, a two-week conference is going on in Kampala.  The International Criminal Court has called a meeting to review and amend the Rome Statute.  This has a lot of ramifications around the world, even in non-member states like the U.S.

Importantly, President Museveni spoke at the conference and called for a method of provisional immunity.  This comes straight from the villages of northern Uganda (and South Sudan, eastern DRC and CAR) where perhaps the only thing between Africa’s current longest-running war and peace was Joseph Kony’s indictment for war crimes.  This would be a game-changer in a lot of different fields as far as having a chance to achieve peace sooner and can be very important.  The review is also trying to find ways to increase the involvement of states and narrow the amount of impunity.

The important thing, though, is the two tracks of the review conference.  The conference will take stock of how the ICC has been operating and decide how to move forwards to make the court work better as well as consider amendments.  The big whopper is making decisions regarding wars of aggression.  If the definition of “war of aggression” is added to the statute then things like Israel’s attack on the Gaza flotilla and America’s use of drones might become deemed as war crimes through the use of pre-emptive strikes.  So keep an eye out.