IJCentral: International Justice Central

This week, Malaysia joined the ever-growing group of states which have considered inviting Sudanese President Omar al-Bashir to visit (note: it is now apparent he will not visit – see below). With the exception of a tiny minority of world leaders, this would be just another state visit by just another head of state. But Bashir, despite his own protestations and those of his supporters, is not just another head of state – he is a leader wanted by the ICC for the Court’s trinity of crimes: genocide, war crimes and crimes against humanity.

Regardless of whether or not Bashir is guilty of organizing atrocities in Darfur, he has been labeled as genocidal by the ICC and its advocates. This labelling aspect of international criminal justice, while rarely analyzed, is fundamental to its purpose. Politically, the perception or popular belief that a leader is guilty of committing atrocities may be just as important to the court as holding trials and achieving verdicts.

Labelling certain individuals as international criminals is intended to have numerous effects. It is meant to spread the popular perception of such individuals as illegitimate. Most importantly, it is intended to marginalize and isolate individuals who otherwise may benefit from a negotiated settlement.

The process and consequences of marginalization through ICC investigations and arrest warrants is not uncontroversial. Advocates argue that ICC indictments can isolate leaders both domestically and internationally, in large part by raising the costs of associating with individuals suspected of committing acts which violate the ‘conscience of humanity’. As mentioned previously, labelling individuals as international criminals is also an attempt to make leaders unfit for peace negotiations. Champions of international criminal justice point to the marginalization of Radovan Karadzic and Ratko Mladic during the Bosnian crisis, barring them from participating in (and presumably de-railing) the Dayton peace talks.

Despite being indicted by the ICC, Sudanese President Omar al-Bashir has visited numerous states (Photo: RNW)

Critics fire back that this is politically naive. In the “real” world, even the most unsavoury of leaders must be negotiated with. If justice is pursued at all, it must come after negotiated peace. Critics also argue, rather convincingly, that creating a political vacuum by isolating indicted individuals assumes that peaceful leaders will fill the void. There is also the ever-present, if rarely confronted, issue about the relationship between isolating leaders through judicial and other means and regime change. Most importantly, however, critics highlight that leaders who feel squeezed may respond by lashing out at vulnerable citizens. Rather than simply marginalizing them, warrants may embarrass and shame leaders. As has been persuasively argued by sociologist James Gilligan, shame is often a key cause of violent behaviour. In the case of Bashir, following the issuance of the ICC arrest warrant against him in 2008, Sudan retaliated by expelling a dozen NGOs from Darfur.

Of course, this is not an exhaustive account of the marginalization debate. It is also not a debate which has an easy moral or political resolution. Regardless, it remains true that one of the criteria of the ICC’s success is the extent to which it is able to effectively marginalize those who find themselves in its cross-hairs. So, does the international travels of Bashir, of which the case of Malaysia is just the latest, mean that the Court is failing?

Champions of international criminal justice point to the exclusion of Ratko Mladic (R) and Radovan Karadzic (L) from the Dayton peace negotiations as evidence of successful marginalization (Photo: Telegraph)

There is little doubt that Bashir’s flouting of international borders is intended, at least in part, to illustrate that the Court is irrelevant and that Bashir remains one of the “normal” heads of state, able to travel freely, wherever he wishes. While it has now become clear that Bashir will not be visiting Malaysia, had he done so, he would be visiting a country which just a few short months ago declared its intention to become an ICC member-state. On previous occasions, Bashir has visited ICC states, including Kenya which is currently under investigation by the Court.

But there is a limit to all of Bashir’s flouting of the ICC. Luis Moreno-Ocampo was recently asked whether Bashir traveling abroad meant that the Court was impotent. He answered to the effect that, it was not, because Bashir is incredibly limited in his movements.

Bashir is not only limited in where he travels but also when and how he travels. For example, he is generally unable to attend any meetings or conferences in states where European or North American leaders are present. This is the case even in countries with close relations to his regime in Sudan. Many state leaders seek to avoid the embarrassment of finding themselves near Bashir whenever possible. Former Brazilian President, Luiz Inacio Lula da Silva, for example, refused to sit next to Bashir at a meeting in 2009. In the case of Malaysia as well as numerous others, Bashir is able to save face by having his officials as well as those of the inviting state declare that he could not travel due to “other engagements.” Of course, these other plans only become evident once international attention focuses on the issue of Bashir travelling.

Bashir also often is only able to “dip in” for foreign visits, rarely staying for any significant period of time and sometimes only for a few hours. Like other international leaders, Bashir has shown that he can cross international borders; but he certainly hasn’t been able to do in the same style or manner. It is hard to think this behaviour isn’t linked to his fear of being detained.

Bashir and Chinese leader Hu Jintao. There are reports that Bashir will visit China in the near future (Photo: Sudan Tribune/Xinhua)

Further, if popular international support is another goal of the Court, then it can be proud of the international attention and outcry that accompanies Bashir’s travel plans. Every time he is inclined to travel to or is invited by another state, the collective arms of the international human rights community go up, pressure mounts on international institutions and local governments and seemingly within hours, there is a partial or full retraction of his invitation. If there isn’t, it often results in a heightened debate on domestic politics, as it did last year when Bashir visited Kenya. Tellingly, a Malaysian minister in the Prime Minister’s Department, Mohd Nazri Abdul Aziz, was quoted by the Sudane Tribune as saying:

“There’s a big issue about him not being arrested even though we are not a member of ICC yet.”

There are likely to be many more trips, invitations, cancellations and revocations ahead for Bashir. Indeed, the Sudane Tribune reports that Bashir is set to visit both Iran and China. At the very least, the recurrent theatrics of these Bashir trips act as a reminder of the potency and widespread support of the Court and its goals.

Some will surely point out that this rosy way of looking at things ignores a central problem: states, including ICC member-states as noted above, continue to invite Bashir. Surely this indicates that these countries are either seeking to actively undermine the Court or will only support it when they are politically inclined.

It is rather obvious that the issuance of an invitation, even if revoked, is less than ideal for the Court. But it is important to remember that the ICC exists in a state of transition. The Court, as its supporters like to say – and rightfully so, is still young. The Court, as its supporters like to say – and rightfully so, is still young. Indeed, it has only been twenty years since the international criminal justice project was revived from its deep, Cold War slumber.

Many states appear to have sent official invitations to Bashir but, through less public channels, have informed Sudanese authorities that he is either unwelcome or could face possible arrest. This appears to be the case with the recent invitation to Bashir by Uganda for President Museveni’s presidential inauguration. Further, as the Court matures, it may actually be beneficial for it to have these relatively minor hiccups. As argued above, they help to consolidate support and knowledge of the ICC.

The consequences of marginalizing leaders through the ICC remain unclear. As mentioned in a recent post here, rarely is the removal of a leader – whether through isolation or through exile – considered in the context of long-term peace- and state-building. Nevertheless, if the ICC wants to be judged by its ability to marginalize indicted leaders – rather than the consequences of such marginalization – and thus shift the behaviour of these leaders, it’s record is nothing to scoff at.

Mark Kersten is the author of the blog Justice in Conflict

It is time for the UN to investigate the consistent reports of mass human rights violations in Burma to enable the identification of those responsible. The failure to take this step is unjustifiable. For decades NGOs and UN actors have documented reports of extrajudicial killings, sexual violence, torture, mass internal displacement, sexual violence, the use of child soldiers and forced labour, and the list goes on. The scale and gravity of the violations reported strongly suggests that they amount to war crimes or crimes against humanity.

Yet, although it is undeniable that mass violations have been, and continue to be, perpetrated primarily by the Burmese military junta but also by armed ethnic groups, those who commit these alleged international crimes do so with absolute impunity. This impunity will not end without a UN initiated investigation specifically aimed at obtaining evidence in order both to clarify the true extent of the atrocities, but also to obtain evidence linking an individual to a specific crime in order to establish accountability. Once such evidence has been obtained, it will be a question of whether the UN and the international community will have the necessary political will to bring the perpetrators to justice.

There is strong evidence of mass human rights atrocities in Burma. In May 2009 the International Human Rights Clinic at Harvard Law released the report, Crimes in Burma, which highlighted the fact that for fifteen years, numerous UN actors, such as the Special Rapporteur for Burma, the General Assembly and Commission on Human Rights had raised considerable concern over the perpetration of grave human rights violations in the country. A former Special Rapporteur for Burma reported that he had received information indicating the military regime had destroyed, forcibly displaced, or forced the abandonment of over 3,000 villages in eastern Burma where ethnic minorities predominate. Further, that at least one million people fled their homes because of the attacks, escaping as refugees and internally displaced persons.

Reports of mass human rights atrocities have continued since the release of the Crimes in Burma report. Just one of the many examples available is provided by the Special Rapporteur’s comments on the situation in the Shan state in his report of March 2010:

“The Special Rapporteur is alarmed by the dire human rights situation in Shan State. Since 27 July 2009, it is reported that the military have burned down over 500 houses and scores of granaries, and forcibly relocated almost 40 villages, mostly in the Laikha township. According to reports, over 100 villagers, both men and women, have been arrested and tortured. At least three villagers have been killed. This would be the largest forced relocation since 1996–1998, when over 300,000 villagers in southern and central Shan State were displaced.”

UN actors have also highlighted the pervasive culture of impunity that perpetrators enjoy, observing a general failure to investigate allegations of abuse, the threat of reprisals for those who report abuses, the failure to prosecute those responsible, and the lack of an independent judiciary.

However, NGOs and UN actors face tremendous difficulties in obtaining the evidence from victims and others in Burma, which would establish the full extent of the atrocities committed and allow for the identification of, and obtain evidence against, individual perpetrators. For example, the Special Rapporteur’s last visit to Burma on 15 January 2010 was limited to a mere five days, and he was provided with his programme on a daily basis by the government. Such a limited and controlled investigation cannot hope to establish the true extent of the situation. Further, it is unable to provide the detailed evidence directly linking a perpetrator to an alleged crime, which is required to establish individual responsibility.

This reality has been recognised by two former Special Rapporteurs for Burma, who have come out in support of the call for a Commission of Inquiry into the issue of international crimes in Burma, as well as the current rapporteur, Tomas Ojea Quintana. He stated in March this year that:

“Given the gross and systematic nature of human rights violations in Myanmar [Burma] over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.

The mere existence of this possibility obliges the Burmese government to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, UN institutions may consider the possibility to establish a Commission of Inquiry with a specific fact-finding mandate to address the question of international crimes.”

Thus, on the issue of whether the reported mass violations amount to international crimes, the Special Rapporteur’s statement that the evidence he has received of the incidents of sexual violence, extrajudicial killings and torture suggests that they are widespread, systematic and part of a deliberate strategy to terrorise and subjugate civilians, clearly supports such a conclusion.

Although such statements may in of themselves be insufficient to bring individuals to trial, it should be recognised how strong the supporting evidence for war crimes and crimes against humanity actually is in the Burma context. In addition to the assessments by the various reliable UN bodies referred to in the ‘Burma Report’ much information has been provided by various NGOs, not all of whom are dependent upon second hand sources for what they report (however cautious they may have to be about explaining how they obtain first-hand ‘in-country’ intelligence and providing anonymity to the victims and witnesses spoken to).

There has been no effective counter from the regime to the allegations made and no effective and independent inquiry of any kind has been published that suggests the allegations reported by the UN and other bodies are wrong. It is, of course, a reality that those applying the (international) rule of law and who therefore proceed on the basis of evidence are at a disadvantage in comparison to those who resist the provision of information about crimes, supported as they may be in this approach by the political interests of patron states.

We have little, if any, doubt about the strength of the underlying evidence and thus of the fact that very serious crimes have been and are being committed in Burma.  This is the reason we – and many others – are pressing for political action that will render impossible the continued blocking of truth by political action or inaction.

It is therefore imperative that a Commission of Inquiry is established by the UN. Such a Commission could be established directly by the UN Secretary General, which was the route adopted in the case of the Bosnian war crimes commission in the early 1990s. It could also be established by the Security Council, though this procedure is obviously susceptible to a veto by permanent members such as China.

The necessity of such a step has been recognised by some members of the international community. These include the USA, Canada, Australia, Slovakia and the Czech Republic. It is to be hoped that other nations, in particular those on the Security Council, will adopt the same stance.

In the event that a Commission of Inquiry was established there is every reason to believe that it would obtain evidence of mass international crimes. Moreover, a properly functioning commission should be able to gather evidence establishing the accountability of both the perpetrators in the field and those exercising command and control over the strategy of terror.

The inevitable question that would arise once the Commission identified the perpetrators at all levels of command and obtained sufficient evidence against them would be: will the international community bring the perpetrators to justice? It is impossible to answer this question conclusively. Whether the perpetrators of the mass human rights atrocities would be brought to trial is entirely dependent upon the will of the international community.

At this time, there is no indication that the Burmese government will take any genuine and effective steps to end the prevailing culture of impunity in Burma. Further, Burma is not a State Party to the International Criminal Court, and so for alleged perpetrators to be tried by this institution the Security Council would have to refer the situation to the Court. It must not be under-estimated how difficult this would be to achieve. Again, such a procedure is susceptible to a veto by a permanent member of the Security Council – the most obvious concern of course being China. It must be hoped that the political will demonstrated by a future establishment of a Commission of Inquiry would carry through to prosecution of those it identified.

It seems clear, therefore, that if a UN Commission of Inquiry was initiated it would not be a lack of evidence that would prevent trials of alleged perpetrators of mass human rights atrocities in Burma; rather a lack of the necessary international political will by the UN and its member states.

Sir Geoffrey Nice QC is co-Commissioner of the Harvard International Human Rights Law Clinic Report Crimes in Burma. Sir Geoffrey worked in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and was the lead trial attorney in the prosecution of Slobodan Milošević.

Julianne Kerr Stevenson is co-author of the Harvard International Human Rights Law Clinic Report Crimes in Burma and Member of the Bar.

They write on behalf of the Burma Justice Committee.

source: Democratic Voice of Burma

NAIROBI, Kenya — A public feud between Kenya’s prime minister and president, whose agreement two years ago to share power ended the country’s worst violence since independence, has many of their compatriots worried that the bloodshed could resume if efforts by the U.S. and African powers fail to cool tensions.

Relations between the two leaders — never strong to begin with — broke down this week over the attempted dismissals of two Cabinet ministers accused of corruption. In the streets of Kenya’s capital, dozens of protesters marched in front of Parliament on Wednesday, demanding an end to corruption and expressing worry about the friction between President Mwai Kibaki and Prime Minister Raila Odinga.

“It’s definitely going to lead to violence because they are not working toward consensus,” Polycarp Gordon Odhiambo, 37, the chief executive of a development group that works in a Nairobi slum, said as he walked among other protesters who held up signs saying “Kibaki Stop Protecting Thieves” and “The Issue is Corruption, Not Politics.”

“From now on, anything can happen,” added Laban Kanyanya Nyongesa, 29, a taxi driver who watched the rally from the edge of a park.

U.S. officials are working behind the scenes to get the two leaders to talk face-to-face and bring down tensions that could rupture the coalition.

The two leaders spoke over the phone late Wednesday during an “extremely cordial” conversation, Salim Lone, an adviser to Odinga said Thursday. The two plan to meet on Sunday, he said.
Tensions escalated last Saturday when Kibaki suspended eight government workers — including two Odinga aides — suspected of corruption. The next day, Odinga suspended two Cabinet ministers after audits of their ministries of agriculture and education uncovered high-level corruption. But Kibaki annulled those suspensions and has since said they were never valid because Odinga had not consulted with him as required under Kenya’s power-sharing deal.

Moses Kuria, spokesman of Kibaki’s Party of National Unity, said that if Odinga or ministers loyal to him withdraw from the government, the president can simply reconstitute the Cabinet.

Legal scholars say such a move by Kibaki would be lawful. But it would risk sending angry Odinga supporters into the streets.

Fears of a return to violence are well founded, especially if the political stalemate goes on for many days, said Ben Sihanya, the dean of the University of Nairobi Law School. But, he said,
Kenyans are also aware that they are under more scrutiny today — by the International Criminal Court and others — after the December 2007-February 2008 bloodshed.

“You cannot just start killing people,” Sihanya said. “You cannot start burning things. People are being more careful than they were before.”

After the December 2007 vote, Kibaki was quickly sworn in as president despite doubts from observers about the vote’s fairness. Odinga supporters took to the streets and clashed with police. The violence took on an ethnic dimension as people were attacked with machetes and even bows and arrows based on their tribal identities. Whole neighborhoods were set ablaze.
Former U.N. chief Kofi Annan, a heavyweight negotiator acceptable to both sides, patched together the shaky coalition government to end the violence. Odinga has asked Annan to step in and mediate the current standoff. In a statement Thursday, Annan called on the two leaders to recommit to a collaborative spirit, to meet with each other and to fight corruption.
Top U.S. officials here are monitoring the dispute closely, are working to defuse the tension and also want the two leaders to meet.

Gus Selassie, a political analyst on Africa at IHS Global Insight, a London-based think tank, said that while Odinga may have exceeded his constitutional powers in trying to suspend the two ministers, Kibaki’s reversal of the decision underscores the disconnect between Kenya’s two leaders.

Selassie said that while Kibaki was first elected president in December 2002 on an anti-corruption platform, he is now reluctant to act against senior figures implicated in scandals.

A PricewaterhouseCoopers audit made public last week shows Kenya lost $26.1 million through corrupt deals that stemmed from a government program to provide subsidized maize for Kenya’s poor. Government auditors uncovered fraud in a program to offer free primary education — two scandals that led Odinga to try to dismiss the Cabinet ministers.

Average Kenyans still want their government to fight graft, but now they especially want their leaders to work together and prevent violence from erupting again.

“We expect this to be resolved,” said Sihanya. “Otherwise the alternative is quite dire for the country.”

source:  The Associated Press

The government on Monday admitted that it would not keep the promise it made to the International Criminal Court to set up a local tribunal by September 30.

Instead, it will write to the ICC asking for more time to pass the law which will set up the tribunal.

This is the third time the government is failing to honour deadlines in bringing to justice those who masterminded the violence that erupted after the 2007 presidential election.

‘We have failed’

“Let us face the facts as they are; we cannot beat the deadline set by the ICC during our July 3 meeting. We have failed,” admitted Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo.

At that meeting, the government committed to setting up the tribunal and provide information on witness protection and progress in investigations.

“On the other two, we have already achieved. But we have failed to convince the country to accept a credible judicial mechanism for trying the post-election violence perpetrators,” Mr Kilonzo said.

Parliament went on recess without discussing the Imanyara Bill, which proposes the establishment of such a tribunal. The Cabinet rejected a similar proposal by Mr Kilonzo.

Mr Kilonzo said although the Bill had received the Speaker’s consent, it was still not tabled. “Therefore, we haven’t fulfilled our obligation,” he said, adding that he would either write or call ICC prosecutor Luis Moreno-Ocampo to brief him on the new development.

“We will tell him sorry,” he said.

The minister did not seem too sure how he was going to get in touch with Mr Moreno-Ocampo, saying he had not decided whether to write or call him.

Closed chapter

He also seemed to have given up on a local tribunal, at one time saying he considered it a “closed chapter” and that the sooner Mr Moreno-Ocampo comes to Kenya, the better for the country.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

“It cannot target particular communities or individual personalities, otherwise its purpose would be defeated,” he said.

Its job is to heal the wounds of the victims and reconcile the nation, he said and called on the international community to help. The induction was attended by TJRC chairperson Bethuel Kiplagat, his deputy Betty Murungi and other commissioners.

originally posted @ The Nation

I urge you to read Justice Richard Goldstone’s wonderful and concise overview of the state of international justice, published on the Op-Ed page of today’s New York Times. It provides an encouraging assessment of the remarkable progress that has been made on the international justice front, a reminder that all the efforts to cultivate international respect for the rule of law, spearheaded by a “mature global network of human rights organizations”, are bearing fruit and reining in the culture of impunity enjoyed by the most powerful violators of human rights.  Perpetrators of mass atrocities used to living by the rule of force and negotiating amnesties and personal benefits in exchange for peace are finding out that that route to retirement is no longer open for them - Charles Taylor is a stark example.  And the arrogance of Fujimori’s ploy to return to Peru for a presidential run, even though he was a fugitive from justice, led to his landmark trial that ended in a conviction and 25-year sentence for human rights violations.

Justice Goldstone is right to remind us all about the progress made in the quest for a world where justice and human dignity prevail.  Human rights activists and concerned citizens, often feeling beleaguered and powerless in the face of myriad conflicts, unbridled violence, and oppressive regimes, need to see that if we persevere there is light at the end of the tunnel.  Justice Goldstone was just awarded the MacArthur Award for International Justice, a well deserved recognition of his incredible career and accomplishments in advancing international justice, a list too long to enumerate in this post.  Skylight Pictures made a short film that honors Justice Goldstone’s role in the creation of an effective international justice system - it was shown at the MacArthur-sponsored award ceremony in The Hague on May 25, and you can see it here.

Now we have to get down to the business of bringing accountability for the abuses of rule of law and human dignity perpetrated during the Bush administration - No One Above the Law! And that includes President Omar al-Bashir of Sudan…

Accountability is not something a constituency should have to beg from its government.  A lack of transparency and a paper trail of secrets is not something that people who fight for their country and defend their democracy deserve. Alas, these types of abuses of power and abstractions of the law have become so commonplace over the last eight years that it’s hard to remember where we started and how we got into this mess.

With the recent release of the Bush administration terrorism memos we are beginning to learn first-hand what many Americans and people around the world suspected had terribly gone wrong with this manipulation of governance.  During the aftermath of (JavaScript must be enabled to view this email address) the Bush administration decided it would be a opportune moment enact a complete deconstruction of social liberties and give itself the type of impunity only sought after by the types of despots and dictators that the American government has long vowed to dethrone and displace. 

In 1998 we saw the indictment of Augusto Pinochet by the Spanish Magistrate Baltasar Garzón for crimes against humanity. On April 7, 2009 the world saw former Peruvian President Alberto Fujimori found guilty of human right abuses and sentenced to 25 years in prison. Finally, on March 4th 2009 the ICC issued an unprecedented arrest warrant for sitting head of state Omar Hassan Ahmad al-Bashir on counts of crimes against humanity and war crimes. Obviously there is a strong trend afoot in the international community to stop the egregious abuses of power and the murder of innocent civilian populations under the threat of war. We are witnessing a gradual acceptance of an international rule of law, but there is still much momentum to be built.  Not that there hasn’t been an acceptance since the Nuremberg trials as a result of World War II or after the signing of the Rome Statue, but I mean the active and engaged acceptance that brings crimes to the surface of public opinion and furthermore its criminals to court.

In March a Spanish court has moved forward into opening an official criminal investigation against top administration officials in the former Bush administration including former Attorney General Alberto R. Gonzales and former Justice Department Lawyer John C. Yoo for allegedly violating international law “by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba”.  This bold step is led by none other than Baltasar Garzón, and is a necessary beginning towards accountability for the United States. Although it may be unnecessary for the United States to have to export its alleged criminals, it does seem imminent that something must be done about them. The past eight years of American involvement in foreign and domestic politics has not only been an embarrassment but a potentially ruthless and criminal interpretation of the law and must not go unpunished.

Spain’s Attorney General has already encouraged Garzón to drop his investigation into the Bush administration and President Barack Obama has assured C.I.A. operatives involved in the torture described in the terrorism memo’s “that they would not be prosecuted for actions that their superiors told them were legal.”  Are the people of the United States going to step-up and make sure its leaders are accountable for their actions?  Are they going to vow against impunity and support a global rule of law? 

How is it possible that the international community continues to allow the LRA to perpetrate atrocities with impunity?  In today’s article by Jeffrey Gettleman in the New York Times, he describes the horrific violence inflicted by the Lord’s Resistance Army (LRA) rebels on villagers in the northeastern corner of the Congo, around Garamba National Park where the LRA has been hiding for the past few years.  Since last December the LRA has been rampaging, pillaging, raping, maiming, kidnapping and killing these innocent villagers, in retaliation for a botched military offensive against them by the Ugandan and Congolese armies (with U.S. advisers involved) after peace negotiations failed.  These poor villagers don’t even understand the LRA rebels who are mostly from northern Uganda and speak Acholi, not the local language Lingala.  So they emerge from the bush, armed to the teeth and speaking a strange language, and proceed to massacre the unfortunate civilians - can you even begin to imagine such a nightmare?  Is it possible that we, the international community, are incapable of bringing the LRA to its knees?  This is shameful and tragic.  Where are the LRA getting their guns, their bullets?  They may extract food from the villagers, but not bullets and grenades to replenish their arsenal.  Who pays for their satellite phone accounts?  Where is the cash support flowing from?  Are we really expected to believe that this information is unattainable?  Can’t the satellite phone carriers shut down the LRA accounts, or use the phones to trace their movements?  Whomever is aiding and abetting them on the outside must be immediately arrested and prosecuted.  If the U.S. was advising the Ugandan and Congolese forces, why can’t the ultra-sophisticated global intelligence system created to track potential terrorists, with satellites that can detect movements and heat emissions under the jungle canopy, be brought to bear on the LRA?  If the international community doesn’t pull out all the stops now to bring this escalating horror to an end, we will have failed miserably - we already have failed the 1,000 victims of the latest LRA rampage.  I commend Jeffrey Gettleman for making this ongoing story a priority, and our response has to be to end the story (nightmare).

I am troubled by a persistent current of thought regarding ICC Prosecutor Luis Moreno Ocampo’s call for the arrest of the President of Sudan, Omar al-Bashir, on charges of war crimes, crimes against humanity and genocide.  Judges at the ICC are currently considering whether to issue the warrants, and based on leaked information that was published in the Washington Post (now taken down from their website after the ICC Public Information Office denied that warrants had been issued), I suspect that the judges will issue warrants charging al-Bashir with war crimes and crimes against humanity, but not genocide.  In any case, those who say that the warrants for al-Bashir should be suspended or retracted if they are issued are putting forth the worn-out argument that the international community is treading on thin ice and may provoke a violent backlash from al-Bashir, thereby derailing the peace process in Sudan (What peace process? Can they be serious?).  A good example of this is an article from the Guardian UK by Paul Adrian Raymond, quoting Alex De Waal of course, saying that al-Bashir will lash out, that Africa will retreat from international justice and become a “universal jurisdiction free zone”.  These arguments claiming that justice is an idealistic folly of human rights advocates are on the wrong side of history.  I was raised in Latin America in a time when dictators ruled and they were considered untouchable.  But civil society persevered, often mocked for their “futile efforts”, and now 30 years later, lo and behold, generals went to prison, dictators were put on trial, and Latin America is practically a dictator-free zone.  Justice played a crucial role in this transformation, and the establishment of the rule of law has become a given in most Latin American societies - witness the ongoing trial of ex-President Alberto Fujimori of Peru, now in the dock facing charges of human rights violations in his own country.  I think that eventually the rule of law will prevail in Africa as well, and if the ICC helps it get there, it will be fulfilling its justice mandate.  I don’t buy the Alex De Waal argument - I think that the majority of Africans want the rule of law to prevail, regardless of what their leaders may say.  Power doesn’t like limits, and the ICC is a threat to those who would prefer to operate with impunity, but I think that the impunity gap will be closed.  And as ICC Deputy Prosecutor Fatou Bensouda says, “Africa is at the vanguard of international justice”.  Africa is the continent with the highest number of countries that are members of the ICC, and it’s good to remember that Prosecutor Moreno Ocampo did not initiate the ICC cases in Africa - Uganda, the DR Congo and the Central African Republic are all ICC member states, and they referred themselves to the ICC, and the Sudan/Darfur case was referred to the ICC by the UN Security Council.  So these charges that the Prosecutor has targeted Africa have no foundation - these conflicts in Africa are real, and accountability must be pursued or there will never be peace.