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On Tuesday, 12 February, Columbia University World Leaders Forum hosted International Criminal Court (ICC) President, Judge Sang-Hyun Song, for an address titled The International Criminal Court and the Fight Against Impunity for Atrocity Crimes. University President Lee C. Bollinger gave the opening remarks, wherein he spoke of the electoral violence that wracked Kenya in December 2007. During that time, more than 1,000 people died and 600,000+ Kenyans became internally displaced. As a result, four individuals accused of crimes against humanity–Deputy Prime Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, Education Minister William Ruto, and radio executive Joshua Sang–are due to stand trial this spring at the ICC. Regardless, Kenyatta is running for president in next month’s elections in Kenya.
Judge Song began his speech with a brief personal background, before delving into the titular topic. He stated that the fight against impunity for atrocity crimes is far broader than the ICC, though the ICC is at the forefront. Believing that law is the best tool for prevention, he also stressed the importance of the UN, states, and civil society working together to end impunity. The UN and the International Court of Justice were created in the aftermath of World War II; together with the Nuremberg and Tokyo tribunals, the seeds of international criminal justice were planted. However, it soon took a backseat to the Cold War. The field further developed as a result of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1990’s. The Rome Statute was negotiated in 1998 and entered into force in 2002.
To date, the ICC has tried individuals from DRC, Uganda, the Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire, and Mali. In 2017, the Court’s jurisdiction will expand to include the crime of aggression. Because peace and justice are interlinked, Judge Song spoke of the mutually reinforcing relationship between the United Nations Security Council (UNSC) and the ICC. Darfur and Libya were both referred to the ICC by the UNSC, but the use of UN funds was prohibited. The UNSC can limit or expand the jurisdiction of the ICC, which bears judicial responsibility, while states are responsible for enforcement. Aside from the issue of money, the UNSC needs to take a more consistent and vigilant approach.
The ICC is a court of last resort and in order to strengthen national justice systems, Judge Song said development agencies need to be involved. The UN is also in a unique position, as it can advance the rule of law throughout the world. The ICC is not a hierarchical institution. All judges and prosecutors are independent and their own bosses. To carry out its mandate, the ICC must maintain its independence and integrity and remain non-political.
After discussing the above, the floor was opened for a Q&A session:
The first question was in regards to Kenya, and how the ICC plans to proceed with its trials without local support and cooperation. Judge Song said the cases will begin in April as originally scheduled, and won’t be affected by the political processes, though logistics are not easy. The ICC constantly consults the host government on an array of issues.
The second question focused on the tension between international stands and sovereignty/non-member states. According to Judge Song, countries, perhaps most notably the United States, have their own reasons for their reluctance to sign onto the Court, including a fear of abuse of power by the prosecutors and a fear of unnecessary political influence by the UNSC. In terms of the US/President Obama, there is close cooperation on matter of mutual concern and intelligence sharing. Judge Song also noted that the US government dispatched military advisers to Uganda to aid in capturing Joseph Kony and other LRA members. The ICC endeavors to strengthen national capacities.
Finally, 1/3 of the 18 ICC judges must be women, but today, 11 out of 18 are, which may have some bearing on the development of jurisprudence. Obviously, there are no American judges so there is no American influence, such as the practice of witness proofing. Ad hoc tribunals have jurisdictional primacy over the ICC, which has a strong desire to develop its own jurisprudence.
In fall 2011, the Auschwitz Institute launched the pilot run of a Genocide Prevention Monitoring Internship, operated in partnership with the Office of the United Nations Special Adviser on the Prevention of Genocide (OSAPG). The purpose was to offer interns
practical experience in assessing the risk of genocide and other mass atrocity crimes within a single country, while providing the OSAPG with information the Special Adviser can use in his mission to “act as a catalyst to raise awareness of the causes and dynamics of genocide, to alert relevant actors where there is a risk of genocide, and to advocate and mobilize for appropriate action.”
Interns received training on how to assess risk using the OSAPG’s Analysis Framework and submitted reports to the Auschwitz Institute on a monthly basis from (roughly) October 2011 through March 2012. Four countries were selected for monitoring: Bahrain, Indonesia, Liberia, and Zimbabwe. Initially, the plan was to have one intern for each country, but owing to the degree of interest and qualifications on the part of our applicants, for some countries we assigned two monitors.
Now, having concluded the internship’s pilot run, we are evaluating the usefulness of the project, to the interns, to our own work, and to the OSAPG. To that end, we asked each of the interns to write a blog post about their experience, answering two questions: 1) What did you learn about genocide prevention? 2) What did you learn about the risk(s) of genocide in the country you were monitoring?
This week we present the post by Jeremy Garsha, a graduate student in history at San Francisco State University. Jeremy monitored Zimbabwe—not for genocide, but for the broader category of crimes against humanity.
As a monitoring intern for the Auschwitz Institute, the most important lesson I learned was that genocide is not an event, but a process. Being a graduate student of comparative genocide, this is a notion I have been taught, but one I quickly forget. By training I am a historian. I investigate past genocides, where all of the pieces have already played out. It is easy to forget that each moment of human rights violations, left unchecked, has the potential to spiral into the systematic killing of individuals based on their identity. When examining historical episodes of genocide from a present point of view, each event often seems inevitable and intentional. Yet, as scholars and citizens of an international community, we must always remember that genocide can and must be prevented at the very inception of exclusionary ideology and basic human rights violations. If genocide is a process, then it can be prevented at many moments, so long as we have the vigilance and courage to act.
I was privileged enough to work with the Auschwitz Institute, an organization dedicated to preventing conflicts before they escalate into atrocities and genocide. Under their guidance, I had the opportunity to monitor Zimbabwe, a country more at risk for crimes against humanity than genocide. By broadening our search to include not only the legal definition of “genocide” as defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), but also all of the illegal acts listed in Article 7 of the Rome Statute of the International Criminal Court (2002), my research partner, Yasmin Andrews, and I were able to investigate and monitor a myriad of sources and antecedents that had the potential to become systematic criminal acts. Zimbabwe provided me with a real-world example of why it is important not to become blinded when looking specifically for genocide threats, as many human rights violations do not fit within the parameters of the “national, ethnical, racial, or religious groups” found within the Genocide Convention. When using a broader definition of “crimes against humanity,” however, it became clear that prevention monitoring of Zimbabwe is of prime importance.
Zimbabwe has a history of genocide: 20,000 Matabele citizens were mass murdered by the exclusively Shona Fifth Brigade in 1983–84, in what was called the Gukurahundi (a Shona term meaning “the early rain that washes away the husk before the spring rains”). Zimbabwe also has a recent history of political violence following the disputed election results of 2008, which set up a power-sharing deal between President Robert Mugabe and the Zimbabwe African National Union-Patriotic Front (ZANU-PF), and Prime Minister Morgan Tsvangirai and the Movement for Democratic Change (MDC). The past episodes of violence, as well Zimbabwe’s decimated economy, has also caused tens of thousands of refugees to flee into neighboring southern African nations. Lacking effective judicial oversight, Zimbabwean government and state security forces operate in a system of impunity. There exists the threat of renewed violence following next year’s scheduled elections, as well as the failing health of 88-year-old Mugabe, who has been in power for over 30 years. The above factors, to name but a few, underscore the necessity of proper and effective monitoring efforts.
A genocide prevention monitor working out of his home in San Francisco is not a replacement for United Nations–backed monitors on the ground. It is, however, a useful and safe alternative when it is not possible to place UN-trained observers in every country that is at risk of genocide. In a globalized world, independent news sources provide an amazing amount of information, and it is remarkable how much can be gleaned by having an individual tasked with gathering and filtering these streams of media. As monitoring interns, our task was to collect, not analyze data. Reading reports on Zimbabwe from across the globe left me with one final realization during my six-month internship, our shared connection of humanity.
I have always had an academic interest in Zimbabwe and southern African history, but working as a genocide prevention monitor reminded me that there is no shortage of information in the digital age. Anyone with an Internet connection can instantaneously plug into world events. With this connection comes the responsibility to take action when human rights anywhere are threatened. In Zimbabwe there is the concept of unhu, a variation of the Zulu term ubuntu, popular in southern Africa, which refers to the notion that one’s humanity is created and nurtured because of its shared connection to others. Crimes against humanity are just that, crimes that violate our shared understanding and connection to humanity. Genocide in one particular region affects us all, and we are all tasked with the responsibility to prevent future human rights violations from escalating into mass atrocities.
In recognition of Genocide Prevention Month, the Permanent Mission of the Czech Republic to the UN and United to End Genocide co-hosted a panel discussion on Monday with Magid Kabash of Sudan, Kambale Musavuli of the Democratic Republic of Congo, and Stephen Lamony of Uganda.
The panel, held at the Bohemian National Hall in Manhattan, discussed the role of the International Criminal Court, arrest warrants, and the importance of justice for victims of atrocity crimes. Discussants drove home the point that ending the culture of impunity by holding perpetrators accountable sets an important example for would-be leaders and backers of mass atrocities.
Tiina Intelmann, Ambassador of Estonia and President of the Assembly of State Parties to the Rome Statute of the ICC, said in her opening remarks that the global community must cooperate to end the culture of impunity. She hailed both the KONY 2012 campaign and the ICC’s recent conviction of former Congolese warlord Thomas Lubanga Dyilo as positive steps toward the ultimate goal of preventing mass atrocities.
Staci Alziebler-Perkins, NYC Genocide Prevention Coalition Convener and 2011 Carl Wilkens Fellow, shared the story of how she became an activist and said the ICC had many cases it should give more focus to, but the number of cases has been on the rise while funding has been decreasing.
Speaking in place of Hawa Abdallah Salih, who was ill and could not attend, Magid Kabash, a refugee and activist from Sudan with the Nuba Mountains International Association, gave the audience a firsthand account of the atrocities occuring in that region and implored the international community to act to protect the Nuba people from the Sudanese government.
The focus of the discussion, however, fell heavily on the atrocities, past and present, in the Congo. Kambale Musavuli of the Democratic Republic of Congo, human rights activist and national spokesperson for the Friends of the Congo, said he hoped “the ICC and international bodies support the UN Mapping Report [documenting “the most serious violations of human rights and international humanitarian law committed within the territory of the DRC between March 1993 and June 2003”] and the ICJ ruling as it is an attempt to end the culture of impunity, to provide justice for the victims and create a framework for accountability for mass crimes committed and still being committed in the Congo.”
Stephen Lamony of Uganda, a human rights and victim’s rights advocate, as well as Situations Adviser & Outreach Liaison for Africa at the Coalition for the International Criminal Court, discussed the importance of arrest warrants.
Finally, in a pre-recorded video address, Luis Moreno-Ocampo, Prosecutor for the ICC, updated the audience on the court’s activity and urged them to give maximum exposure to ICC cases.
Ahmed Harun, governor of the Sudanese state of South Kordofan, has been caught on film giving orders to the Sudanese army that may be interpreted as encouraging troops to commit war crimes against rebels.
In the video, published by Al Jazeera yesterday, Harun, who has already been indicted by the ICC for crimes against humanity in Darfur, instructs his soldiers to “take no prisoners” in a speech delivered just before his soldiers enter rebel territory.
Says Harun: “You must hand over the place clean. Swept, rubbed, crushed. Don’t bring them back alive. We have no space for them.”
According to United to End Genocide, civilians in South Kordofan are not only in immediate danger of suffering direct, undifferentiated violence simply by virtue of living there, but are also in danger of starvation due to the ongoing conflict’s interference with adequate farming and the delivery of food aid.
ICC Chief Prosecutor Luis Moreno-Ocampo called for Harun’s arrest, saying: “A commander has a responsibility to ensure that his troops are not violating the law. He cannot encourage them to commit crimes. ‘Take no prisoners’ means a crime against humanity or a war crime, because if the prisoner was a combatant it is a war crime and if the prisoner was a civilian it’s a crime against humanity.”
Advocate Eric Reeves, who has written extensively about Khartoum’s aerial military attacks on civilians throughout Sudan, recently wrote an article for the Sudan Tribune calling for pressure on Khartoum to accept the multilateral humanitarian access proposal put forth jointly by the African Union, the Arab League, and the United Nations.
On March 29, the U.S. Senate unanimously passed a resolution urging the government of Sudan to allow immediate and unrestricted humanitarian access to, among other regions, South Kordofan and Blue Nile. The resolution also encourages the two Sudans to cease hostilities, return to negotiations, and allow any peaceful civilians in the area to voluntarily leave and take refuge somewhere safer.
* Yesterday Kenyan foreign minister Moses Wetangula announced that his government would not host the Intergovernmental Authority on Development meeting dedicated to Sudan. His statement came after the Kenyan High Court issued an arrest warrant for Sudan’s president, Omar al-Bashir, following on the International Criminal Court‘s warrants against Bashir for crimes against humanity and war crimes in March 2009, and for genocide in July 2010. Wetangula at first criticized the Kenyan court’s decision, saying it would complicate the country’s foreign relations and disrupt its mediating role in Sudan. For its part Sudan expelled the Kenyan ambassador, recalled its own, and froze bilateral trade between the two countries. This decision was delayed following a meeting between Bashir and Wetangula, but Bashir says unless the Kenyan court reverses its ruling, Sudan will proceed with sanctions against Kenya.
* Swiss judge Laurent Kasper-Ansermet arrived yesterday in Phnom Penh to replace Judge Siegfried Blunk of Germany as the UN half of the Office of the Co-Investigating Judges (OCIJ), charged with investigating alleged crimes by the Khmer Rouge in Cambodia from 1975 to 1979. Judge Blunk resigned in October amid international criticism that he had “failed to conduct genuine, impartial, and effective investigations.” In his resignation statement, Blunk said he was routinely subject to pressure that “could be perceived as attempted interference by government officials.” Judge You Bunleng, representing Cambodia in the OCIJ, responded to Ansermet’s arrival by saying that without Cambodian government approval, “[A]ny procedural action taken by Judge Laurent Kasper-Ansermet is not legally valid.”
The UN-backed Cambodian tribunal’s ineffectiveness has resulted in only one conviction since its conception in 2001, that of Kaing Guek Eav, commandant of the infamous Tuol Sleng prison. In a December 6 article, The Investigative Fund pointed out that there is no independent mechanism to oversee the conduct of judges on the Cambodian tribunal.
Meanwhile, on November 22, after hearing opening statements by the defense and the prosecution, Nuon Chea, known as “Brother Number Two,” defended himself against atrocity charges, saying that they were committed by Vietnamese troops, and imposters disguised in the black outfits of Khmer Rouge revolutionaries.
* Yesterday, a Kenyan court ordered the government to arrest Sudanese President Omar al-Bashir, should he ever return to Kenya. Though al-Bashir is wanted by the International Criminal Court (ICC) on genocide and war crimes charges, he was not arrested when he attended a ceremony in Kenya last year. While the African Union does not want its members to enforce the arrest warrant, Kenya is obliged to cooperate as a signatory to the ICC. As such, the ICC reported Kenya to the United Nations Security Council. In response to the ruling, Sudan expelled Kenya’s ambassador and pulled its own envoy from Nairobi. The Kenyan ambassador was given 72 hours to leave the country.
* Secretary of State Hillary Clinton is scheduled to visit Burma later this week. In advance of the trip, the U.S. Campaign for Burma, in conjunction with 11 other human rights organizations, wrote an open letter to Secretary Clinton, “urg[ing] her to prioritize securing an end to the egregious crimes against humanity the Burmese Army continues to commit against ethnic minority civilians.” The country’s military-backed government recently unveiled reforms but atrocities committed as recently as last month have been reported by aid groups. The ongoing fighting has led to approximately 1 million refugees and internally displaced persons.
* The UN backed trial of three of the most senior members of the Khmer Rouge began today with opening statements in Phnom Penh, Cambodia. The officials included Nuon Chea, also known as “Brother Number 2,” former head-of-state Khieu Samphan, and Ieng Sary, who was foreign minister for the Khmer Rouge. All three defendants deny the charges, which include genocide and crimes against humanity. Each of the three defendants are in their eighties, and many fear they will die before any convictions can be handed down. Ieng Thirith, the former social affairs minister and Ieng Sary’s wife, was deemed physically unfit to stand trial. Since its establishment in 2006, the Extraordinary Chambers in the Courts of Cambodia has convicted only one person, Kaing Guek Eav, head of the notorious Tuol Sleng torture center.
* In Libya, human rights organizations are calling for the surrender of Saif al-Islam, a son of Muammar Gaddafi, to the International Criminal Court (ICC). Saif al-Islam is subject to an ICC arrest warrant for crimes against humanity in an investigation authorized by United Nations Security Council Resolution 1970. Saif al-Islam is reportedly being held in the town of Zintan by rebel forces. “The authorities will send an important message that there’s a new era in Libya, marked by the rule of law, by treating Saif al-Islam humanely and surrendering him to the ICC,” said Richard Dicker, international justice director at Human Rights Watch. “His fair prosecution at the ICC will afford Libyans a chance to see justice served in a trial that the international community stands behind.”
International Criminal Court prosecutor Luis Moreno-Ocampo announced on October 15 that the ICC would investigate three to six individuals for war crimes and crimes against humanity committed during the post-November 2010 election violence in Côte d’Ivoire. Ocampo said no names would be published until ICC judges had approved his list of suspects. He also said investigations would include violence committed as early as 2002. The ICC prosecutor met with current Ivoirian president Alassane Ouattara, but not with former president Laurent Gbagbo, whose lawyers say he should be tried by his own country and not an international tribunal.
Ouattara says nobody in his government will be spared from investigation, though none of his allies or supporters have been arrested or investigated so far. Human Rights Watch said on October 6 that, “President Ouattara needs to swiftly match his soaring rhetoric on ending impunity with credible prosecutions of those in his camp who committed serious crimes.” Archbishop Desmond Tutu of South Africa also commented on the need for impartial justice in a statement on September 27: “We are convinced that the perception that ‘victor’s justice’ is being applied would greatly undermine the reconciliation process.” In an October 18 article, the Daily Maverick of South Africa said that if impartial justice is not provided, “public distrust in the government will only deepen, this time with the south feeling aggrieved. Côte d’Ivoire will be back where it started again.”
* In a meeting with the Defense Writers Group on September 14, General Carter Ham, commander of U.S. Africa Command (AFRICOM), said he had no problem with African states buying weapons and aircraft from China because he didn’t “see that as a military competition between [the U.S.] and China.” As Human Rights First pointed out, however, Chinese arms have enabled violence against civilian populations in Libya and Zimbabwe and contribute to ongoing atrocities throughout the continent, including in the Congo and Sudan. This is primarily the result of Chinese export laws that are neither strict nor strictly enforced by the government, coupled with Chinese companies’ lack of discretion.
* University of Minnesota political science professor Kathryn Sikkink argues in today’s New York Times that countries that prosecute human rights offenders have a better chance of ending repression than those that do not. In research comparing these two types of countries, she found that, contrary to what some contend, prosecutions of atrocity crimes tended not to exacerbate human rights violations, undermine democracy, or lead to violence. Writes Sikkink: “Countries that have prosecuted former officials exhibit lower levels of torture, summary execution, forced disappearances and political imprisonment. Although civil war heightens repression, prosecutions in the context of civil war do not make the situation worse, as critics claim.”
* Cornell law student Nicholas Kaasik today lays out the argument for why the United States should ratify the Rome Statute and become a member of the International Criminal Court. The purpose of the ICC is to end impunity and hold leaders accountable for committing war crimes, crimes against humanity, ethnic cleansing, and genocide. Were the United States to join the 117 current States Parties, Kaasik says the relationship between the United States and the ICC would be mutually beneficial, strengthening each other’s legitimacy.
* Sri Lanka is trying to prevent a report by a UN panel of experts from being forwarded to the Human Rights Council. The report, written in March, detailed “credible allegations which, if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law were committed both by the Government of Sri Lanka and the LTTE [Liberation Tigers of Tamil Eelam], some of which would amount to war crimes and crimes against humanity.” The report also called for an independent international probe into the violations and invited the Human Rights Council to reconsider the conclusions from its May 2009 special session on Sri Lanka, during which a resolution was adopted praising the outcome of the country’s 1983–2009 civil war.
* On September 9, INTERPOL issued Red Notices, the agency’s highest arrest alert, for Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Abdullah Senussi, his former director of military intelligence. The International Criminal Court indicted the three for war crimes and crimes against humanity in June. INTERPOL’s action is considered a crucial step towards recognition of Libya’s National Transitional Council [NTC] as the country’s official government. It is speculated, but unconfirmed, that Gaddafi, like many other members of his family and regime, is being harbored in Niger. The Red Notices also have the effect of restricting the ability of the fugitive men to cross international borders.
* In the first ICC case on post-presidential election violence in Kenya in 2007, the prosecution and defense have accused one another of “unclear evidences.” Defense attorneys argue that the prosecution did not conduct proper investigations, while the prosecution maintains that defense witnesses have been inconsistent and contradictory. The first three suspects summoned by the ICC for the confirmation of charges hearings are former ministers William Ruto and Henry Kosgei and radio presenter Joshua Sang, all members of the Orange Democratic Movement, the opposition party at the time of the elections. The ruling on whether or not initial evidence presented can support crimes against humanity charges in full trial is expected out on December 24.