Mladic, Impunity and the Politics of International Justice

Posted on May 26, 2011 by

“Ratko Mladic will answer the accusations against him in court. He will face witnesses and he will be presented with evidence,”

“The pursuit of truth is the essence of justice and justice will be served.”

[Mladic’s arrest ]“will help to bring down barriers to reconciliation in Bosnia and Herzegovina.”

– BiH High Representative and EU Special Representative, Valentin Inzko

In today's surprising news, Ratko Mladic has been arrested by Serbian police, after decades of being a fugitive from a warrant issued by the International Criminal Tribunal for the Former Yugoslavia. In addtion to Radovan Karadzic, Slobodan Milosevic, and, to a lesser extent, Goran Hadzic, Mladic's arrest is a prize for ICTY, and a symbol of its victory over major power and Serbian intransigence, and its own highly criticized legacy.

Videos of Mladic at family events had long circulated the internet, and indeed he and Karadzic had lived openly, and then thinly disguised, in Serbia for many years after their arrest warrants had been issued. Allegations that the Serbian government knew of their whereabouts and refused to arrest them, have circulated over the years, including in the yet unreleased report on teh ICTY planned to be released by ICTY prosecutor Serge Brammertz.

The EU's conditionality for Serbian accession–the arrest of fugitives accused of war crimes by the ICTY–led to the move of current Serbian leaders to find, and arrest Karadzic and now Mladic.

What might that mean though, about Inko's and others statements about reconciliation? Can civil society in Serbia and in the rest of the region really be expected to see significant changes now that Serbia has decided that EU accession is more important than post-war national identity? Indeed maybe the reason Serb politicians prioritze accession is precisely because, unlike with the arrest of Milosevic, civil protests are deemed unlikely–precisely because people have, in a sense reconciled? Or at least moved on?

For international justice though, the question is more about what precedents, and strengths, might this mean? The blogosphere and twittosphere are abuzz, and  major media are all following the case–which at least suggests that worldwide knowledge and care about international justice is high. Lots of interesting questions have been raised, and undoubtedly, lofty statements on impunity will follow from international criminal justice advocates and actors.

Clearly though, in addition to a last gasp for ICTY which is almost closed at this point (finally, after almost 20 years), the arrest yet again points to the intractability of local politics, the politics of powerful states and institutions and the classic peace v. justice conundrums of exchange values for justice projects and stability from any judicial accountability project.

It would be a dangerous mistake to forget both the massive normalization of international criminal justice this represents, AND the inherently and coldly political way in which it came about. Mladic would not grace your tv or paper without EU accession on the table, and without ICTY political pressure, or Serbian state change. Reconciliation has no part in the decision to arrest Mladic–unless state formation and change in Serbia can be called reconciliation. Nor are any major political figures calling for a robust Serbian, Croatian, or Bosnia reconciliation around the crimes Mladic is allegedly responsible for.

 

Posted in Europe, ICTY, Other Mechanisms, UN | Leave a comment

Negotiating with Referral

Posted on May 13, 2011 by

Though arrest warrants will be made in Libya, Prosecutor Luis Moreno-Ocampo has chosen to hold on to the list of names until at least his press conference on 18 May 2011, if not later. Meanwhile, Italian Foreign Minister Franco Frattini has been quoted all over the press confirming a Gaddaffi warrant, that will, according to the Minister, be released at the end of the month.

Earlier, I queried the unequal use of Security Council referrals to the ICC–but now, I am wondering if the more interesting area of investigation is the strategy of referrals, arrests, and investigations. Frattini implied that until the warrant Gaddafi has time to find a place of exile. Was this the reason for Ocampo's silence on the warrants? The ICC's time to investigate? Or the referral itself?

Is the ICC now part of diplomacy and more importantly, the business of negotiated settlements?

Posted in Africa, Libya, Security Council | Leave a comment

US Accountability

Posted on May 11, 2011 by

In a new memoir, former IAEA chief, Mohammed El-Baradei proposes that George W. Bush should be prosecuted for war crimes for his invasion of Iraq, by the International Criminal Court. No matter that the US is not a signatory to the court, nor that as a P-5 member a security council referral is impossible, the point he makes is a recurrent one– that the most powerful states, and in particular the US are frustratingly out of reach of international criminal law.

Among international relations theorists, realists would argue that this is just business as usual. Indeed many in the international advocacy community would agree, and state that any rhetorical support of the ICC's existence by the US is enough for any realistic person to hope for.

While even new president Barack Obama, who was hoped to have taken a more positive role in international law and human rights has failed to ratify the Rome Statute, (or close Guantanamo Bay's notorious prison,  as planned, but that's another story), the Security Council's resolutions referring situations to the court show that the US is on board with some legitimacy for the court.

What could be gained or lost from a strong push for US or other P-5 state accountability? Would the court be undermined, lost in a struggle for power? Or would it gain some independence and respect? My guess is the former– but there is a possibility of more interesting "soft" effects of the ICC over time that might make the US and other former detractors act differently in war which, at the end of the day, may be better results than ratification or prosectution. After all, the ICC is actually powerless until something that "shocks the conscience of the world" has happened.

If equality in accountablity of the table, less of those things happening might be a good place to start.

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But Was it Even Legal? Does Law Matter?

Posted on May 9, 2011 by

Following on from my previous post, I have to call attention to Geert-Jan Knoops' piece on the legality, morality and normative problematics of the killing of Osama bin Laden in Radio Netherlands World Wide . In this article, Knoops states that in all probability, the killing of bin Laden was illegal, and its reception not only undermines international criminal law's ascent/normalization but represents a sharp divergence from previous critiques of US war on terror tactics.

Knoops makes a comparision between reactions to the concept of "pre-emptive war" –against Iraq– and reactions to the death by US Marine attack, of bin-Laden. In the first, clear voices called attention not only to the legal problem of pre-emptive war, but the practical realities of its precedent.

This comparison makes clear, I think, the dangerous legacy of the war on terror and of link between norm creation and application. The war on terror has reshaped conceptions of violence and urgency in a number of ways, and has forced changes in a number of transnational activities from travel, to banking. More importantly, it has concieved a sense of the role of violence as one that may be necessary in the case of threats that can be called terrorist.

Prior to 9/11, the world was moving–albeit slowly–to a more humanitarian focus on violence and military action, grounded in civilian protection. The events of Srebrencia, Kosovo and Rwanda, coupled with large-scale ad hoc and hybrid courts, legal sanctions for heads of state and the emerging norm of the responsibility to protect– preceded itself by the idea of humanitarian intervention — changed in seemingly better ways, the discourse of internationalism.

Now, in the killing of bin Laden we see this normative shift being used against the law, and against the kinds of limits imposed on state actions in that era.

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Some Animals are More Equal than Others: Gaddafi, Gbagbo and bin Laden

Posted on May 6, 2011 by

As the year began, events in North Africa and the Middle East captured the attention of all– most notably with uprisings and eventual regime change in Egypt and subsequently across the region. This turn of events—variously termed the “facebook revolution” “the Jasmine revolution” “the Fourth Wave of democratization,” and “the Arab Spring,” among other things—has the potential to reshape the global political and security status quo in far reaching ways.

 At the same time, the crisis in Libya, Sudan’s referenda as well as the ongoing conflict in Cote d’Ivoire added complications to a new order across the political globe.

 In the midst of this, the ICC has issued arrest warrants in Kenya (a first use of  the prosecutor’s proprio motu powers), and more recently Libya (today, under Security Council referral). The ongoing DRC, Uganda, Central African Republic and Sudan cases finish up a decidedly African, , roster of ICC cases.

More importantly, as the court tries to increase its scope and legitimacy, the failure of the international community to insist on its use in all situations may be more fatal to its legitimacy than the perception that it is the “international court for Africa”. In Cote d’Ivoire, the clear decision to choose peace over justice in the run-up to his capture and in the case of bin Laden to choose force over rule of law makes international criminal law, quite frankly, a joke.

The court has established itself as a major force–of its own, and of others–in international security. Not content to attend to post-conflict justice, the court has continued a policy of issuing warrants and pursuing investigations mid conflict.

 In no case is this more relevant or fraught than that of Libya. Almost as soon as conflict peaked in Libya, talk of a Security Council referral, of Muammar Gaddafi began. To be sure, accounts of crimes against humanity were rife, and indeed the colonel himself almost begged for such accusations, using almost clichéd expressions calling for the destruction of his rivals.

 At the same time, threatening language, though it can be considered an incitement to violence, is not necessarily equivalent to crimes against humanity. What is also important is that even with a Security Council referral, the ICC statute’s requirement of complementarity– that the court be the court of last resort, acting only when the state/states involved refuse or are unable to exercise jurisdiction–becomes particularly thorny during cases of ongoing conflict. Who decides ability to exercise jurisdiction? Is it in the interests of justice, security, stability or sovereignty to make the decision of inability or refusal when prosecuting a sitting head of state during civil conflict? Clearly, given Gaddafi's sway over his government, no real investigation could have been expected by the ICC, or the council. However, if the dilemma of sitting heads of state makes complementarity pro forma (although what about regional courts able to exercise similar judgments?) what about state change?

 Earlier links between justice and security claimed a connection between justice as a tool of reconciliation in a post-conflict state, and the stability of peace. If the rebels who have been cast as the “good guys” aren’t allowed to address violations in the “new” Libya, what costs might that cause in terms of uniting local populations for a stable peace?

 Across and to the west of the Sahara, former president Laurent Gbagbo was captured and handed over to pro-Ouattara forces by French troops. Barely masked as a multilateral effort, intervention in Cote d’Ivoire was in the end swift, and reminiscent of pre-intervention days. After much arguing between the African Union, the Security Council and ECOWAS, the result was speedy actions, though many Ivorians would die in fighting at the hands of massacres by each side. The rightfully elected president of Cote d’Ivoire, Alassane Ouatarra, now claims there will be an investigation, and talk of sending Gbagbo to the ICC—via referral—has circulated, but it is clear this is not a priority.

 Finally, this week began with the capture and killing of Osama bin Laden by US military forces. In this case, justice was delivered in a hail of bullets–celebrated across the world–without the possibility of an ICC referral.

 All three of these leaders committed crimes against humanity, but only one will face legal sanction. Alassane Ouattara, Gbagbo’s rival, is widely considered to have been linked to atrocities in the war between them, and it is unclear he will face any investigation, or sanction.

 This disparity, whether caused by the use of SC referrals, or court inaction is a clear sign of the inherently political nature of the court. Interestingly, as since the court can only act in situations it either has jurisdiction–signatories to the Rome Statute ask for its assistance or commit crimes under the statute– referral or if the prosecutor initiates investigation, non-referred cases may be difficult to initiate without a cessation of conflict, especially in proprio motu cases


Posted in Africa, Security Council, UN | Leave a comment

Kenya: What next?

Posted on October 1, 2009 by

If it is true, as Kenyan Minister Mutula Kilonzo declared, that Kenya has opened its doors to the ICC in lieu of a domestic proceeding, what might be the necessary next steps for both the ICC, and Kenya? Clearly, the ICC has a list of accused in its arsenal, and at least some of the evidence the prosecutor will need. And given this expansive response by Ocampo the ICC has decided it will not only adjudicate what it has been given, but construct a kind off transitional justice proceeding for Kenya.

At the same time, reports indicate that tensions in Kenya remain, and that the relatively fragile accord that was brokered in 2008 is in danger.

This paradox is yet another way into the contemporary "justice vs. peace" debate, one made clear not by the types of justices–i.e. amnesties–available, but by a trend of intervention that has led to powersharing agreements as a means of conflict abatement. In the case of Kenya, continuing mass atrocities were halted by an agreement to look aside in the face of undoubted election tampering and the presence of a clear electoral victory. This compromise of justice–at least justice as legal accountability and process, and democratic justice–was clearly made to promote peace. And so, justice was sacrificed.

More importantly, any attempts to do post-conflict justice must acknowledge this inherent compromise in order to avoid writing a contested and inflammatory narrative of this part of Kenya's history. Such narrative writing will, largely, have to take place in Kenya. Much of the narrative will come from legal proceedings, but the issue of accounting for the international and domestic decisionmaking that led to the ICC referral points to the inherently political nature of justice.

Furthermore, it is high time the ICC acknowledged the broad differences between its cases, its own politics, and more importantly, its limitations.

In an essay in World Policy Journal, Belinda Cooper makes the argument that the ICC must not act politically in order to maintain its credibility. But the court is set up to be political by the very nature of Article 13(b) which provides for jurisdiction on the basis of Security Council referral. One might be persuaded to believe the court is apolitical–no such argument can be made about the Council

Returning to Kenya, the case may prove to an interesting test of the logistical limits and political challenges of the court. I find it largely discomfiting to see Moreno-Ocampo in the role of global jsutice czar, especially with regard to his pronoucements on transitions, but perhpas this is the natural outcome of the transitional justice and global justice movements of the last generation?

Posted in Africa, Kenya | Leave a comment

Some cases have more justice than others

Posted on September 6, 2009 by

Normally, I shy away from the legal stuff, not being a lawyer and all. But every so often something comes up that sticks in my tender political heart. Essentially, the ICC has decided, mid-trial that it will consider adding more charges to Thomas Lubanga Dyilo’s indictment as a result of victim testimony and evidence at the trial.

Wait, *what*?

So, apparently this is not without foundation; but given the learning on the job that already makes the ICC a bit dubious as a court maybe making up charges as we go might not be the best idea. The general idea, that unaccounted for charges, raised during a trial–this time relating to the rape of girl child soldiers– can, under court regulations, be added to existing charges. It seems that it would be difficult enough to justify adding charges to an existing case if this were a domestic proceeding in an established legal system. However in this case not only is the court new, and struggling for global legitimacy, but the events leading to the case are still in progress. If the court intends to continue prosecutions during conflict, unrest, or otherwise pre-transition, the question of new evidence will continue to be raised, for at least one reason–namely that evidence cannot be collected in any sort of stable manner.

Certainly procedures for evidence gathering in times of war exist–human rights and humanitarian organizations have been particularly adept at amassing this information–however in cases of mass displacement, mass killing, continued insecurity and in areas which are difficult for the kinds of organizations which have been doing this work to access, the possibility that other crimes may emerge is clear.

In the trial of Saddam Hussein it was clear that there are dangers, or at least costs to limited charges–Hussein was only charged for the Anfal massacres–and of slow prosecutions–the state documents that could have served evidence that was destroyed upon the occupation is one example.

However, it seems that given the rocky stature of the courts, this current addition may be ill-advised. On the other hand, if additions have global precedence, or if they are a feature of the statute aimed not at ensuring convictions even under conditions of weak cases perhaps they have merit.

Key to understanding the question will be fairness, and who decides this political, and social driven question will be an answer to who determines the fundamental questions that global integration bring.

Posted in Lubanga | Leave a comment