IJCentral: International Justice Central

It is very encouraging to hear Archbishop Desmond Tutu in today’s New York Times denounce the argument by many African leaders that the International Criminal Court (ICC) cases are unfairly targeting Africans.  Archbishop Tutu’s call for justice for the victims is forceful and morally unassailable - as he says: “Are [African leaders] on the side of the victim or the oppressor? The choice is clear but the answer so far from many African leaders has been shameful.” and also “Justice is in the interest of victims, and the victims of these crimes are African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent.”

It’s refreshing to hear this unambiguous call for justice as we await tomorrow’s decision by the ICC judges on the issuance of an arrest warrant for the President of Sudan, Omar al-Bashir, very likely charging him with crimes against humanity and war crimes.  Even if he doesn’t get charged with genocide, the other two charges are more than enough.

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.

A sad farewell to exemplary human rights defender, activist, author of the definitive tome on the Rwandan genocide, and international justice advocate Alison Des Forges, who died in the Continental plane crash in Buffalo on February 12.  She was an extraordinary and dedicated person, with profound insights on the human condition.  We had the privilege of crossing paths with her several times during the making of The Reckoning, and she will be sorely missed by all.  Read more on her life in the NY Times obituary - she will live on in our hearts and her life will always be an inspiration to present and future human rights defenders.

It’s high time to make a concerted and sustained international military intervention to capture Joseph Kony and bring the nightmare of his crazed militia group, the Lord’s Resistance Army (LRA) to an end.  Today’s story in the New York Times, describing the atrocities inflicted on the peaceful rural people of the remote northeastern corner of the Congo, in and around Garamba National Park, is truly a horror story of innocent civilians being hacked to death and babies’ heads being torn off.  I hope no one is still talking about lifting the ICC warrants for the arrest of Kony and his top leaders.  It’s good that the US military has chosen to contribute tactical advice and information, as reported in the NY Times story, to help the Ugandan forces in their effort to rout and apprehend Kony, but the hapless Ugandan army will need more than advice and information to get the job done.  Even the “Kaibiles”, Guatemalan special forces sent after the LRA by the UN a couple of years ago, were decimated by Kony’s forces - let’s stop underestimating the LRA and send out some serious troop numbers, like the UN peacekeeping force sent into East Timor in 1999, to end his reign of terror once and for all, restore peace and stability, and put Kony on trial for war crimes at the ICC.

Senegal’s President Abdoulaye Wade says that he wants to hand over former President of Chad Hissene Habre over to the the African Union (AU) to face trial for crimes against humanity.  Habre is accused of killing 40,000 and torturing 200,000 during his 8-year reign, which would definitely make him an International Criminal Court (ICC) case, but for the fact that his alleged crimes were committed before the temporal jurisdiction of the ICC went into effect in July 2002 (Habre fled to Senegal after his regime collapsed in 1990).  Of course, as Reed Brody of Human Rights Watch says, the AU is not a state and has no capacity to try Habre.  Senegal’s President Wade says he doesn’t have the resources to create a special court and put Habre on trial, and doesn’t want to hand him over to Belgium where a court has sought his arrest based on universal jurisdiction, because he doesn’t want to see an African leader tried outside of Africa.  This whole jurisdictional mess points out the value of having a permanent ICC in place.  If Habre had committed his crimes after 2002, he would be in the sights of the ICC, as President Omar al-Bashir of Sudan is now.  Because of the circumstances, a universal jurisdiction case from a domestic national court such as the one opened in Belgium against Habre seems to be the only option, but the world of international justice will have a lot more clarity when all countries have ratified the ICC and it has universal jurisdiction based on the consensus of an international treaty, the Rome Statute.

The balance between the people and the state has always been precarious, a see-saw between our collective needs that can only be guaranteed by a strong, mature state, and our sacred right to live our lives the way we see fit, and most importantly to control and alter the state that governs in our name – “we the people.”

Remember when you were a kid on that playground see-saw, and you partner, a little heavier than you, was able to keep you up in the air before pushing off to set the ride in motion once more – and remember the times when the trust was broken and your partner jumped off, letting you drop with an ass thumping jolt?

“We the people” are about to be dropped onto our collective ass by the highest court in the land.  The “Roberts court” is on the verge of reversing basic constitutional protections, in place for almost 100 years – the 4th Amendment right to be secure from tyrannical search, seizure, and false arrest.

In 1914, in a case called Weeks v. United States, the Supreme Court ruled that evidence obtained through unconstitutional search & seizure could not be used in court; it would be considered the poisoned fruit of the poisonous tree of police misconduct.  Throughout the years this ruling has been strengthened.  In 1961 the Warren court in Mapp v. Ohio ruled that the exclusionary rule applied to all state trials.  The strengthening of these rulings has been a powerful check on City, State, and Federal police agencies from overstepping their mandates and abusing their power. 

Now Chief Justice Roberts with a 5-4 conservative majority wants to erase this “exclusionary” protection. The first blow has been struck in a decision handed down in Herring v. United States, this January. In a recent NY Times article Adam Liptak discusses the case and clearly illuminates the dangers we face. 

In the US we have a truly robust judicial system, and we are guided by a rule-of-law.  But this rule-of-law must never be taken for granted.  Unless we are vigilant, and defend our civil liberties at home, our protests over abuses abroad will be marred with the stain of hypocrisy.

A recent report in Ugandan newspaper New Vision says that Okot Odhiambo, one of the 5 Lord’s Resistance Army (LRA) senior commanders wanted by the ICC, is ready to throw in the towel and turn himself in to Ugandan authorities.  Apparently he was wounded last December in battle during the offensive mounted by Ugandan forces in conjunction with Congolese and Southern Sudan forces, in an attempt to end the reign of terror mounted by LRA leader Joseph Kony in and around his hideout in Garamba National Park in northeastern Congo.  Kony’s refusal to sign the Juba peace agreement with the Uganda governement, after 2 years of painstaking negotiations, led to the military offensive in December.  Okot says that he will turn himself in to Ugandan authorities under the condition that he not be transferred to ICC custody to face trial and be given amnesty in Uganda, and the Ugandan government has declared that they will follow the terms of the Juba peace deal even though it was never signed, which would call for Okot to face court in Uganda.  This raises yet another challenge for the nascent ICC - despite the terms of the Juba peace agreement, will the ICC still demand custody of Okot?  After all, the ICC was not involved in the peace deal and has a clear justice and accountability mandate, so the Ugandan government would have to mount a “complementarity” challenge to the ICC claiming that they can prosecute Okot under the Ugandan legal system - will the ICC accept this?  After all, the Ugandan/LRA case was originally referred to the ICC by the Ugandan government itself, claiming that they didn’t have the capacity to deal judicially with the mass atrocities committed by Kony and his cohort.  If they have developed the capacity, that would be a feather in the cap of the Rome Statute, that has as a primary goal the strengthening of the national justice systems of the member states, like Uganda.

Okot is not the first LRA commander to defect - on our video page you can see an interview we filmed with Patrick Makasi, LRA Commander of Operations, who defected in October 2007 under mounting tension in the LRA camp over the lack of progress in the peace talks, because Kony wouldn’t sign for fear of being taken to The Hague to face justice.  Kony at the time killed his right-hand man Vincent Otti, but Makasi managed to get away and after several days moving through the Congolese jungle, turned himself in to MONUC peacekeepers, who gave him over to the Ugandan government.

Justice and accountability can be a slow process, but it this case a dauntless lawyer is helping to make it happen.

November 1989. The cold war was in its last throws.  The Berlin wall had just fallen.  It was the first year of Bush Sr.‘s presidency.  To the south In San Salvador, the capital of El Salvador, the guerillas of the FMLN were making what would be their final assault against the Salvadorian Army, and the military struck back, but not at the armed enemy.  The Salvadoran military thought they could use the chaotic moment to rid themselves of a thorn in their side; a group of intellectuals and educators who were teaching democracy.  On the night of November 16th, 1989 uniformed troops armed with high power rifles murdered six Jesuit priests, their housekeeper and her daughter.  This same Salvadorian military had received a billion dollars in US aid, much of it military, and Dick Cheney, then Sec. of Defense, denied that any Salvadoran military personnel were involved in the killings.  Flash forward 20 years.

Last night Jim Goldston, Open Society Justice Initiative, recounted those days.  He was just out of law school and heading up the Americas Watch Office in San Salvador. Joining him on a panel at Open Society Institute were Robert Varenik, and Aryeh Neier, both of OSI, and Almudena Bernabeu, a brilliant young lawyer, working with The Center for Justice and Accountability,  who is spearheading an international case against the murderers. 

At the end of the civil war there was a UN sponsored Truth Commission. This Commission found that the vast majority of many hundreds of assassinations and disappearances were carried out by the Military, yet over all these years there have been only 7 convictions, the highest ranking a Colonel.  Following the revelations of the Truth Commission the government declared a general amnesty, effectively deflecting all future prosecutions.  When international pressure demanded some action, as in the case of the murdered priests, then a commission of inquiry coached witnesses to never mention higher ups, and even tampered with physical evidence, changing the barrels of guns that had been used in the crime. But family members, victims, and civil society continued to collect evidence in the case, and over the years the preponderance of evidence demanded action.  In El salvador a case against the highest ranking officials involved in the Jesuit murders went all the way to the Supreme Court.  The Court ruled that certain crimes against humanity were exempt from the amnesty and could be tried, but that a lower judge would have to declare them as “crimes against humanity.”  The lower judge refused, calling the murders a “common crime.”  So with all national remedies exhausted Almudena Bernabeu went international.

In 2006, working with the families of the Jesuit Priests, and the San Francisco based Center for Justice and Accountability (www.cja.org), Bernabeu took the case to the Audiencia Nacional, the Spanish High Court.  This is the same Court that brought Pinochet to bay, and is hearing the case of Guatemalan genocide.  And just last month, on January 13, 2009 the Spanish High Court agreed to hear the case against 14 Salvadoran defendants including General Ponce, former chief of the Joint General Staff of the Salvadoran Armed Forces and General Rafael Humberto Larios, Minister of Defense at the time, for crimes against humanity and terrorism. The judge may also indict former President Cristiani if the evidence warrants.

After 20 years, impunity in El Salvador may be coming to an end.

An excellent blog post by Raj Purohit and Amjad Atallah in the PSA blog, titled “International Justice Systems and the Muslim World: Why Bashir is Wrong” points out the absurdity of the argument saying that Sudanese President Omar al-Bashir should not be indicted by the ICC because it is acting as a tool of the west in its fight against the Muslim world.  Let’s not overlook the fact that the people targeted in Darfur by the al-Bashir regime are Muslims, so this argument doesn’t hold much water.  To the argument that if Israel is not charged with war crimes because they are protected by major powers, then Sudan shouldn’t be charged either, the authors say,“There is an obvious absurdity to the argument that as long as anyone can commit a war-crime, everyone should be allowed to commit a war-crime.” 

The problem of Israel’s conduct raises the issue of UN Security Council reform, because as long as the major powers can exercise veto power over resolutions, it is highly unlikely that a resolution will be passed asking the ICC to investigate Israel for committing war crimes.  And Middle Eastern countries should follow Jordan’s lead and join the ICC, because if Lebanon were a member state of the ICC in 2006, for example, it would have allowed the ICC to open a case against Israel.  As pointed out by the Costa Rican representative at a recent meeting of the UN Security Council regarding the Sudan/al-Bashir case, Costa Rica joined the ICC to gain some measure of protection from aggression by larger states with firepower, reasoning that the rule of law could be their shield.

If the evidence gathered by the ICC holds up, then al-Bashir, as well as Sudanese Minister for Humanitarian Affairs Ahmad Haroun and Janjaweed militia leader Ali Kushayb, both indicted by the ICC, they will someday be convicted of orchestrating a genocidal campaign to drive the people of Darfur from their land and into extinction.  Unlike the temporary ad-hoc tribunals for the former Yugoslavia and Rwanda, the ICC is a permanent court and will still be here after leaders like al-Bashir fall from power.  I’m convinced they will face their day at the Court.