Crimes in and of Famine

If you find the argument that famine is man-made to be credible, then famine is not just an inevitable outcome of the structural conditions of “failed states” but rather it is purposeful, systematic, and systemic human rights abuse and therefore criminal.

Those who make the argument that the current famine in East Africa is man-made place more blame on political problems of restricted access, entitlements and aid management than the environmental factors of drought, overpopulation, and food scarcity. That Somalia has been hit harder by famine than neighboring Ethiopia and Kenya underscores this point. If famine is, at least predominantly, man-made than by extension there are individuals or groups responsible for causing the famine or exacerbating its effects of death and displacement. As Charles Kenny argues for Foreign Policy, “In order to ensure widespread death by starvation, a governing authority must make a conscious decision: it must actively exercise the power to take food from producers who need it or deny food assistance to victims.”

The debate is not new. For example, in Famine Crimes (1997) Alex de Waal addresses the “political roots of famine” in Africa and the subsequent failings of the “humanitarian international” as an “obstacle rather than aid to conquering famine.” (pxv) More specifically on the question of crimes and responsibility, he argues: “For war crimes, the challenge is to deter those who cause them. The Geneva Conventions contain strong provisions prohibiting the use of starvation as a method of warfare. Criminalizing the infliction of famine requires a further step, namely enforcing the prohibitions by prosecuting those guilty of the crimes. This it to put famine into the category of offences requiring justice, and in particular war crimes.” (p6) Certainly civilians living amidst violence and in poorly functioning states are likely to become food insecure and displaced. But is the present famine, the worst in sixty years, an international crime in and of itself? Both Sarah Pierce and Jens David Ohlin explain the factual case that, technically, the famine is neither a war crime nor a crime against humanity but make the normative argument that it should be. Specifically starvation is a war crime but only in international armed conflicts. And for the famine to constitute a crime against humanity there must be intent and knowledge of a plan to cause “great suffering, or serious injury to body or to mental and physical health” as part of a systemic and systematic attack on civilians. This is where the evidence is mixed and raises questions about determining intent and assigning responsibility to organizations and individuals. Those who breed corruption and war often to blame.

In Somalia, civilians are prevented from fleeing to areas, inside or outside its borders, to access food aid, medical assistance, and protection and aid agencies are deliberately obstructed from providing such assistance inside much of Somalia. Human Rights Watch just released a report, “You Don’t Know Who to Blame:” War Crimes in Somalia, accusing all warring factions in Somalia, particularly al-Shabaab but also government forces, of committing human rights violations and preventing access to aid. But most argue that the Islamic insurgency group, al-Shabaab, is primarily to blame. The report’s author told BBC that “al-Shabaab carries out unrelenting daily repression and brutality in areas under its control, taxing the population for access to water, forcefully recruiting men so they cannot grow crops and restricting access to aid agencies…al-Shabaab must carry he burden of that responsibility for the way in which the fighting has led to human rights violations which have contributed to famine.”
Andrew Jillions, blogging at Justice in Conflict, also directly takes on the question of al-Shabaab’s responsibility or complicity in engineering the famine. And in Kenya too there is finger-pointing at political actors. One Kenyan activist claims “this is a governance drought. It is a situation caused by the government’s failure to plan…” and that big profits can be made from famine.

Whether those perpetrating violence and corruption have intentionally caused vs. exacerbated the famine in the commission of other abuses may matter more for identifying this as a crime and assigning responsibility, but on the ground the end result of either scenario is still increasing death and displacement with little allocation of responsibility.

(Cross-posted at Duck of Minerva)

Impunity Gap: Syria

There is a near absence of calls for accountability in the international responses to the ongoing and escalating violence in Syria. Unlike in the Libya situation, where there was a swift UN Security Council Resolution mandating both the use of force and a referral to the International Criminal Court, influential states and human rights groups have yet to stand firm on either type of response for Syria. Is it simply premature or counter-productive to demand justice when violence has yet to cease? Or are the political and security implications of removing Assad greater than the risks of impunity?

There is some consensus that the scale and manner of the attacks by Syrian forces against civilian protestors constitute crimes against humanity and that President al-Assad is likely “most responsible” for such systematic violence. Estimates put the death toll between 1,600 and 2,000 so far. Comparable to other situations before the ICC, Syria would meet the “sufficient gravity” criteria that determine the selection of situations and cases by the Court’s Office of the Prosecutor and Pre-Trial Chambers. But the much less impartial political criteria that guide the referral of situations to the ICC by the Security Council are more strategic.

While the Security Council has condemned the violence and the US is calling for consensus on stronger measures, there appears to be little political will for an ICC referral. The US, UK, and France have been the strongest critics of the Syrian regime’s actions. China and Russia initially resisted endorsing UNSC interference but then supported the condemnations that were expressed in the Security Council’s first Resolution on August 3rd and are unlikely to block a future resolution. Moreover, the Arab world is now breaking ranks with Syria as many states, notably including Saudi Arabia, recalled their ambassadors and demanded Assad end the attacks.

The international diplomatic responses illustrate that most of the pressure is directed towards marginalizing Assad and his regime with sanctions, expressions of moral outrage, and encouraging an effective opposition in order to incapacitate and and delegitimize his leadership domestically. Accountability, responsibility, and justice are notably absent from the discourse and policies.

Even notable human rights groups are cautiously realistic about an ICC referral. While Amnesty International called for such action, the main thrust of its recommendations is for the UNSC to forego diplomacy and take stronger measures like an arms embargo and freezing the Syrian regime’s assets. Human Rights Watch makes similar recommendations, but stops short of calling for the ICC and instead presses for more cooperation with the OHCHR’s ongoing investigations and, short of Syrian cooperation, to establish an official Commission of Inquiry. David Bosco, blogging at The Multilateralist, questions HRW on whether it would support an ICC referral. Kenneth Roth responded: “Yes in principle, but as a practical matter it’s not realistically on the Security Council agenda yet….so we’re focusing on the accountability steps that currently are in play.”

But, in what amounts to little more than gossipy political intrigue at this stage, there are reports that an unknown Western government is “bankrolling” investigations into the crimes committed by the Syrian regime and ensuring they are credible enough to be put to use in an ICC trial. The fact-finding mission is being carried out by interviewing Syrian refugees in neighboring countries. See Mark Kersten’s post here, blogging at Justice in Conflict, on why this is a sketchy way to politicize and undermine the ICC.

The strategic imperative and lessons learned from the mess of simultaneously combining judicial and military intervention in Libya are undoubtedly undermining support for justice in the short term. Many fear the political and security implications of removing Assad via a negotiated exit or trial. He is a slick autocrat whose regime’s propaganda convinces citizens and foreigners that his rule keeps the pin in a bomb of potential sectarian violence and economic instability. For now the calls for accountability will remain isolated in diplomatic back channels and the blogosphere until politics and principle align for the Security Council.

(See also the first post in this series “Mind the Impunity Gaps” and “Impunity Gap: Sri Lanka“)

Cross-posted at Duck of Minerva

Uganda: War crimes trial may affect LRA defections – analysts

IRIN article

“The trial of Thomas Kwoyelo, a former rebel in Uganda’s Lord’s Resistance Army (LRA), the first such case before the Ugandan High Court’s International Crime Division (ICD), is eliciting mixed reactions. Analysts say that while it may satisfy northerners’ desire for justice, there are concerns over its impact on future LRA defections.  Kwoyelo was charged with war crimes, including murder and kidnapping in various northern Uganda locations, on 11 July in Gulu. He denied the charges.

“The Kwoyelo trial sends mixed messages to current LRA fighters and commanders,” Ashley Benner, a policy analyst with the Enough Project, told IRIN in an email. “On the one hand, the Amnesty Act guarantees amnesty for the LRA, and leafleting and radio programmes provide assurances that they can defect without fear of prosecution. On the other hand, the Amnesty Commission has been inconsistent in granting amnesties, and the Ugandan High Court has begun prosecuting a mid-level LRA commander who has been refused amnesty.” …”

Violence and Vengeance in Ivory Coast

Al Jazeera article

“….Months later, Ouattara is president, Gbagbo is still awaiting trial for war crimes in a secret location in northern Côte d’Ivoire, and the international community is no longer rebuked for not paying enough attention to the Ivorian crisis. They – rather, we - should still be chastised. Despite the general calm and stability, the business of killing remains unfinished in parts of Côte d’Ivoire.

The International Criminal Court reports that at least 3,000 people died in the five-month-long post-election struggle for the presidency between Ouattara’s rebel army, the FRCI, and Gbagbo’s Young Patriots. Ouattara’s forces are reportedly responsible for the killing of 100 people in post-Gbagbo reprisal attacks in which the FRCI, now the formal Republican army, seek out suspected Gbagbo supporters in the southern and western parts of the country.

According to a lengthy Human Rights Watch report, the would-be Young Patriots are targeted on the basis of their ethnicity, age and the assumption that the communities in which they live had political ties to Gbagbo….”

Gaddafi can’t be left in Libya, says international criminal court

Guardian article

“The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain in Libya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court.

The ICC, which Britain and France have signed up to, said that Gaddafi could not be allowed to escape justice. “He has to be arrested,” said Florence Olara, spokeswoman for the court’s chief prosecutor, Luis Moreno-Ocampo….”

 

Darfur….now more genocide in Sudan

Christian Science Monitor article by Eric Reeves

“Yet again, Sudan shows all the signs of accelerating genocide, this time on its southern border.

The question is whether the world will now respond more quickly – and effectively – than it has to the years-long atrocities in Darfur, in western Sudan. Over four years ago the International Criminal Court indicted a senior Khartoum official for crimes against humanity (2007); most recently it has indicted President Omar al-Bashir for genocide (2010). But to date Khartoum has continued to express only contempt for the ICC and human rights reporting generally….”

Ivorian President Says Justice Will Be Applied Equally

VOA news article

“The president of Ivory Coast said justice will be applied equally to his supporters and those of former President Laurent Gbagbo, who were involved in the country’s recent post-election violence. Speaking at a news conference at the United Nations, Alassane Ouattara said his former rival will be tried for some alleged crimes in Ivory Coast and for others, the government will seek help from the International Criminal Court.

President Ouattara said his top priority is Ivorian reconciliation after the country was torn apart by violence following the disputed presidential election in November.

He told reporters that there would be no distinctions in the application of justice for his own supporters and for supporters of Gbagbo. Fighters on both sides are accused of contributing to the bloodshed that killed more than 3,000 people….”

Four Questions NATO Must Answer on Libya

Huffington Post article

“On Tuesday William Hague announced that he would bring UK policy into line with the French government; potentially allowing Gadaffi to remain in Libya after relinquishing power. This raises a serious question about Europe’s commitment to the international justice system, but it is not the only weakness in NATO’s strategy. …’

Sri Lanka’s Tamil question: Justice, Lies, and Videotape

Radio Netherlands article

“The problem in Sri Lanka today is that the presence of non-governmental organizations is dwindling, a fact witnessed when travelling across the east of the island – where once there were distinctive white NGO vehicles on every corner, the sight is now rare.

With the help of one remaining NGO, which requested anonymity, RNW met nine freshly ‘reintegrated’ former Tamil Tiger guerillas who spoke of their desire for justice for all Sri Lankans. But people in the heavily militarized north and east live in fear of reprisal if they openly criticise the authorities, creating the space for a vociferous Tamil diaspora, the foreign media, and a UN investigation, to demand justice. The Sri Lankan government is now hitting back…..”

Ivory Coast’s warlords obstacle to reconciliation

Radio Netherlands article

“Ivory Coast’s national reconciliation is showing both surprising promise and worrying failure.

It’s been three months since Ouattara was finally able to assume the presidency after former leader Laurent Gbagbo refused to concede defeat in the November presidential election. It took the assistance of UN and French troops to ultimately force him from office.

Now a new national army exists on paper, but the rebel forces that fought to bring Ouattara to power still reign on the ground….”

Genocide courts attacked for failure to heal Rwanda’s scars

The Independent article

“Rwanda’s widely praised community genocide courts, due to wind up later this year, have done nothing to “heal ethnic divisions” and have been used to “bolster government authority”, according to a new report by one of the country’s leading donors.

The unique “gacaca” courts, which have heard more than one million cases, have been hailed as the centrepiece of the mountain nation’s miracle recovery from the 1994 genocide but their reputation has been disputed in a study by the Japanese aid corporation, JICA.

The courts were touted as an “African solution” that would heal the legacy left by a Hutu-led genocide that killed nearly one in ten Rwandese, many from the Tutsi minority. But the gacaca courts are regarded in Rwanda as handing out “victor’s justice”, argues researcher Shinichi Takeuch, who says they “have done nothing to appease underlying ethnic tensions in the country”…

However, while this week’s report acknowledged the extraordinary scale of the problems faced by Rwanda and some local acceptance of the gacaca solution, it said that the justice they offered was allowed “only insofar as it did not threaten the existing political order”….

The unusual source of this week’s criticism of one of the central planks of Kagame’s success story – coming from traditionally quiet donor Japan – will embarass Kigali. Tokyo’s aid agency, Jica, handed out $33m (£20m) in grants to Rwanda last year.”

Ivory Coast: resolving conflict the traditional way

Radio Netherlands article

“Traditional chiefs to the rescue
Traditional chiefs are more important than ever before. While neglected and without real administrative authority, traditional leaders now work hand in hand with politicians for the reconciliation of the Ivorian people, through mechanisms and methods hitherto only applied in the traditional context.

A few days after his appointment at the helm of the Commission for Truth, Reconciliation and Dialogue, former Prime Minister Charles Konan Banny called for the support of more than 200 kings, village chiefs and other prominent personalities, and continues to welcome their contributions to the success of his mission. “Be the ambassadors of reconciliation in your respective fields; be the representatives of the reconciliation commission that is being established”, he said to them.

The Ivorian Gacaca
If reconciliation and social cohesion could be achieved in Rwanda through the Gacaca – traditional people’s tribunals, they might also be achieved in Ivory Coast through the “Toukpè”…..”

Buying Justice: The Supply, Demand, and Cost of ICC Justice

Radio Netherlands article

“ICC budget concerns are raising questions, ahead of the first celebrations of International Criminal Justice day on 17 July. NGOs are calling on states to maintain their financial commitments to the ICC and support adequate funding for the court – as crucial court activities are increasing.

By Mark Kersten*

The Coalition for the International Criminal Court (CICC) says it is “very worried that the ICC wil not be granted the necessary money to deliver on key functions in 2012, including its new investigation in Libya, related outreach and implementation of victims’ rights.”…”

Botswana, African Union Disagree Over International Criminal Court Warrants

VOA news article

“Botswana will continue to support trials by the International Criminal Court (ICC) of accused human rights abusers in Africa, despite opposition by the African Union (AU), says an administration official.

Government spokesman Jeff Ramsey says Botswana will uphold its treaty obligations as a signatory to the Rome Statute, which established the court, based in The Hague.

“If an arrest warrant is issued by the ICC, we would honor that if the circumstance arises in our country,” said Ramsey.

At its recent summit in Equatorial Guinea, the African Union resolved not to cooperate with international arrest warrants issued by the ICC against Sudanese President Omar Hassan al-Bashir and Libyan leader Moammar Gadhafi….”

Victims prevented from participation at ICC

Radio Netherlands article

“While the International Criminal Court (ICC) will celebrate “International Criminal Justice Day” next Sunday, some 470 victims are denied the opportunity to participate in the confirmation of charges hearing against war crimes suspect Callixte Mbarushimana, says REDRESS. Due to insufficient resources at the court in The Hague, another 1,500 could be affected in upcoming cases, says the victims organisation…..”

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Possible war crimes in Sudan’s SKordofan: UN report

AFP article

“The Sudanese army and allied forces have carried out systematic attacks on Nuba civilians in South Kordofan that could amount to war crimes, according to an unpublished UN report obtained by AFP.

Violence has swept Sudan’s ethnically divided state since June 5, with the Sudanese Armed Forces (SAF) battling Nuba militia aligned to the SPLA, the ex-rebel army of the south, in what Khartoum calls a rebellion within its borders that it intends to crush.

But the UN report, the most detailed of its kind to date, documents specific instances where the army allegedly attacked civilians and churches, carried out summary executions, torture and intimidation, and bombed civilian targets in a campaign that it says will “dissipate the Nuba population” if not stopped….”

Impunity Gap: Sri Lanka

(see first post in this series: Mind the Impunity Gaps)

There is increasing pressure for justice in Sri Lanka for crimes committed in the long civil war between the Government and secessionist Tamil Tigers (LTTE) and that ended in May 2009. While the Sri Lankan government has publicly pledged to ensure justice, there are legitimate concerns its current approach will not be genuine and sufficiently punitive, and will place the burden of guilt for war crimes and crimes against humanity on the LTTE while institutionalizing impunity for crimes committed by Government forces.

“Sri Lanka’s Killing Fields”
The airing of a documentary called “Sri Lanka’s Killing Fields” on UK’s Channel 4 sparked new interest and pressure. It has now been shown to wide acclaim at the UN in New York and Geneva and recently by human rights groups in Washington, DC. The footage is indeed shocking. It documents extrajudicial killings, torture, and sexual violence allegedly committed by Government forces against Tamil civilians. The documentary is available on YouTube.

The Sri Lankan government has reacted angrily to the footage and accompanying accusations; it also claims that portions of the film have been doctored or are misleading. A BBC Hardtalk interview with a Sri Lankan MP and adviser to the President is revealing with regard to the determination of the Government’s denial and rejection of international pressure to investigate its own crimes.

UN Probe Alleges Crimes Committed by “Both Sides”
A United Nations Panel of Experts released a report in April, 2011 stipulates there are credible allegations of war crimes and crimes against humanity committed by both sides in the final stages of the war (Sept 2009-May 2009). Crimes committed by the LTTE throughout the civil war are well known, including killings, forced displacement, use of child soldiers, etc. But crimes committed by Government forces have been less exposed.

The Panel’s notable allegations are as follows:

The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity….330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE….Most civilians in the final phases of the war were caused by Government shelling…..(p ii)

The Panel was also highly critical of the Government’s commitment to accountability thus far:

The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive presents a false dichotomy….The Government’s two-pronged notion of accountability, as explained to the Panel, focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result. The Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. (p iv)

The Government’s “Lessons Learnt and Reconciliation Commission” was described by the Panel as “deeply flawed.” (p v).

In response, the Sri Lankan Government vociferously rejects the prospect of international judicial intervention, argues the “report is based on patently biased material which is presented without verification,” and claims that reconciliation should come above all else. A commitment to reconciliation above prosecutions is a familiar refrain for governments wishing to disguise impunity for their own crimes (e.g. Indonesia, Rwanda, etc.)

The impartiality of investigations does not always translate into a balanced prosecutorial strategy. This will be a considerable challenge for international or national trials for Sri Lankan atrocities. International courts struggle to prosecute the winners of conflict, particularly because of a reluctance to create a moral equivalency of crimes on both sides, and if perpetrators are in positions of political power and prosecuting them could risk instability or a loss of cooperation. Impartial prosecutions in national trials are likely to be impossible in this case, owing in no small part to what the Panel calls the Sri Lankan government’s discourse of “triumphalism” over Tamils and “exclusionary policies” that prevent domestic victims’ groups from successfully exerting pressure on the government.

Prospects for Closing the Impunity Gap
Pressure from the UK and advocacy from human rights groups seems to be having no effect so far. Most of the pressure is on the UN Secretary-General because the Panel was commissioned by his office and with the purpose of advising him on further investigations and accountability. Victims and human rights groups are pressing him to take up the Panel’s clear recommendation to establish and official international commission of inquiry. Such a formal inquiry, as past experience has shown, would pressure the Sri Lankan government to genuinely investigate and hold war criminals accountable, and absent such a response would generate support for an international tribunal. If not an ad hoc or hybrid tribunal, a referral to the International Criminal Court would have to come from the Security Council as Sri Lanka is not a State Party to the Rome Statute. But China’s support for Sri Lanka and its autonomy in accountability makes this unlikely to happen. There is great risk that the Sri Lanka case will fall through the cracks.

(Cross-posted at The Duck of Minerva)

Mind the Impunity Gaps

This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.

An impunity gap can manifest itself in several ways:

• There are no genuine international or national justice measures and/or there is a blanket amnesty.
• There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
• There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)

Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.

Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.

The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.

(Cross-posted at The Duck of Minerva)

Uganda’s first war crimes trial of LRA commander opens

BBC news article

“The first war crimes trial of a commander of Uganda’s Lord’s Resistance Army (LRA) rebels has started in the northern town of Gulu.

Thomas Kwoyelo appeared before Uganda’s International Crimes Division court, more than two years after his capture.

He denied 53 counts of murder, hostage-taking, destruction of property and causing injury.

The LRA is notorious for kidnapping children and forcing the boys to become fighters and using girls as sex slaves….”

Is there justice in post war Sri Lanka?

BBC Hard Talk video interview

“More than two years after the Sri Lankan army defeated the separatist Tamil Tigers there is evidence to suggest both sides committed serious war crimes.

Last month graphic video footage screened on British television added to the international pressure for an independent investigation.

Stephen Sackur spoke to Rajiva Wijesinha, an advisor to the president of Sri Lanka, and asked him what steps the government is taking to investigate war crimes allegations….”