In Which I Read a NYT Article About Luis Moreno-Ocampo

Screen Shot 2016-06-22 at 3.06.52 PM

The New York Times has a long (and excellent) article up today detailing the International Criminal Court’s failed effort to prosecute Kenya’s leaders for the 2007-2008 election violence. I didn’t want to read it, but then DID read it. Join me, as I recap that exciting journey:

9:00am: Did the world really need another photo of this dude staring into the middle distance and thinking about the victims?

9:01am: I am not reading this.

10:08am: No, seriously. I’m. Not. Reading. This.

2:15pm: FINE, Mark Kersten, I’ll read it.

2:18pm: This is a horrifying story. And if this man is only in his late 20s now, he must have been barely out of his teens when he was tortured and mutilated.

2:21pm: Has a complex ever been more white savior-y than “he also believed Kenyatta’s crimes emerged from a tradition of impunity in Africa, one that would continue unless he stepped in”.

2:23pm: Why would you do this to me, Mark?

2:24pm: Is anyone surprised to learn that LMO is the sort of person who would loudly watch a YouTube video in the middle of a bar, regardless of the other patrons’ desire to enjoy their cocktails in peace?

2:27pm: I never quite know what to make of statements like this: “In a moment of collective insanity, Kenyan society had turned on itself.” Feels like an accurate description of cataclysmic violence, but also elides the fact that perpetrators make rational, strategic decisions to participate.

2:31pm: O hai, Alex Whiting.

2:32pm: This sounds right: “One investigator I spoke with said Moreno-Ocampo seemed to see the I.C.C. not as a forensic body so much as a ‘naming and shaming’ organization, like Human Rights Watch or Amnesty International.”

2:34pm: I appreciate the #RealTalk about the absurdity of the Congo and Darfur investigations.

2:35pm: This Njenga stuff is pretty interesting, given that one of the recurrent complaints about international criminal prosecutions is that they fail to build cases against complex criminal organizations the way functional domestic systems do.

2:37pm: LOL at “Moreno-Ocampo, whose political guile was undercut by his political tone-deafness”.

2:40pm: The failure to take seriously and account for the potential risks and consequences for the witnesses here is just maddening. Here’s hoping everyone’s learned a valuable lesson…

2:42pm: So the unexpected takeaway here seems to be that we should all be assigning LMO much more personal blame for the ICC’s terrible relationship with African countries, rather than attributing it to the structural constraints on the Court’s jurisdiction and wretched PR. Huh.

Live (Not Really) from the ECCC

As I’ve mentioned previously, I spent a bunch of last month hanging out at the Extraordinary Chambers of the Courts of Cambodia, observing Case 002, the trial of Nuon Chea, Ieng Sary, and Khieu Samphan for Khmer Rouge atrocities.

It’s an interesting experience sitting in the audience, watching a mass atrocity trial while surrounded by the victims of that atrocity. I ended up being about as absorbed by the interaction between the security personnel and the Khmer Rouge victims in the public gallery than by the actual proceedings in the courtroom.  (Also, in the three years since I stopped actively practicing law, I’d sort of forgotten just how dull court can be, no matter how interesting the subject matter of the trial.)

Setting aside (as much as I can), the substantive legal issues under discussion, here’s a brief sample of the experience watching the proceedings:

July 20, 2012
9:02am: The Trial Chamber explains that the Prosecution will wrap up its examination of expert witness David Chandler (author of a number of books on Cambodian history) this morning before turning things over to counsel for the Civil Parties.

9:07am: Security guard tells me I can’t sit with my legs crossed. Ookay. Feet on the floor, eyes straight ahead.

9:22am: I decide “Revolutionary Flag” would be a really awesome band name.

9:44am: Security guard makes victims stop leaning on the backs of the seats in front of them, sit up straight.

9:47am: I decide “The Three Ghosts” would be an even more awesome band name.

10:28am: The expert witness complements S-21 prison head Duch’s “wonderful” handwriting.

10:35: The Trial Chamber breaks for coffee.

10:53: Proceedings resume.

10:57am: I take the desk out of the seat arm in order to put my notebook on it, 3 security guards panic, hover suspiciously over me as I write.

11:02am: National defense counsel for Ieng Sary objects to the witness’s reference to an S-21 confession, argues that this is torture-tainted evidence that cannot be used under international law. I am confused, as the intention of the prohibition is surely not to protect torturers from having evidence of their torture presented. (More on this later.) It turns out it doesn’t matter, because the reference is actually to a letter written prior to interrogation anyway. Yeesh.

11:15am: Counsel for the Civil Parties begin their questions.

11:27: Security guard yells at two victims for sleeping, makes them sit up. I’m an actual international lawyer writing a dissertation on international criminal tribunals and I can barely stay focused. I can’t imagine how bored these Cambodians from the provinces are…

12:03: International counsel for Nuon Chea states that his client is suffering from a headache, back pain, and a lack of concentration, and will not be returning to the courtroom for the afternoon’s proceedings. (This happens every day, and every day I think “Me too, dude. Me too.”)

12:15pm: Trial Chamber breaks for lunch.

1:32pm: Proceedings resume.

2:13pm: Counsel for the Civil Parties asks the witness whether there are any historical events comparable in scale to the April 1975 forced evacuation of Phnom Penh. The witness responds that there’s nothing similarly severe in recorded history, but he “can’t speak for the Mongols.” That seems like good sense. We should never try to speak for the Mongols.

2:20pm: Security guard tells victim to sit with his legs closer together. Man, these guys have highly specific leg position requirements.

2:28pm: A very confusing digression about the Milgram experiments occurs. Everyone is perplexed, especially the national defense counsel for Ieng Sary who, unsurprisingly, can’t place the name “Milgram.”

2:37pm: Security guard scolds victim for putting his arm up on the back of the chair next to him. Apparently arm position is also important.

2:44pm: Trial Chamber breaks for coffee. I am suffering from a headache, back pain, and lack of concentration, and decide to go home.

Note: If you’re interested in the latest developments in Case 002, the transcripts are up on the ECCC’s website.

Live from the Great Lakes Policy Forum Conference on Congo Advocacy

Morning internets!  We’re on a field trip to the Great Lakes Policy Forum Conference on Congo Advocacy today.

We’re live-blogging live, but the conference policy of “on the record but not for attribution” means that we are apparently only allowed to tell you what is being said, not who is saying it.  So, to set the scene:

We have three panelists and one moderator, making up a total of three distinguished gentlemen and one distinguished lady who is a friend of the blog and is named Laura Seay.* Three of them are wearing suits!  One moderator is wearing a tie! And Tom from A View from the Cave is sitting behind us, which is awfully exciting.

*Laura has given us permission to attribute her statements, so this is not as much of a flagrant rule violation as you probably thought it was. Fooled you!

9:45: Not-to-be-identified-speaker-in-spiffy-yellow-tie notes that international advocacy around Congo is not a new phenomenon. Mark Twain FTW!

9:49: Broad theme for this panel is “how is the narrative of the Congo conveyed in Washington?” (Somehow we think the answer to that question is going to be “not that well, actually.”)

9:52: Oooh! A map!

9:53: Focus on eastern DRC means “we have ignored the rest of the country altogether.”

9:54: Your interest has been captured by eastern DRC, so those are the stories you tell. You think you are doing something good for the Congo, but you’re not. You’re arguably doing something for this region, but ignoring the rest. The result has been terrible.

9:56: Shout out to a great moment in “WTF Congo Advocacy” history – Secretary Clinton’s video cameras for rape victims initiative. Whatever happened with that, anyway?

9:57: No one asks about the Congolese government when something bad happens. When women get raped, we send NGOs, and students from good law schools to run clinics on how to prosecute people that no one has the power to arrest.

9:58: First reference to Dr. Mukwege. Who thinks we’ll get to ten mentions by 11:30?

10:01: What is lacking in the advocacy in this town is the courage to tell the truth. You’re thinking of your next job, and what people will think of you.

10:02: Explanation of who Edward Morrell was is probably not necessary – suspect 100% of this audience has read “King Leopold’s Ghost.”

10:03: Oooh, burn. Report saying that 48 women are raped every hour is “most ridiculous thing I’ve heard.” If you take a holistic view of all rape in a country, then the U.S. is in serious trouble too. Maybe we need to build a Panzi hospital here.

10:06: Exciting Panelist #2! (Suit, no tie. Have we mentioned these panelists are snappy dressers?)

10:09: External intervention is preventing Congolese from dealing with internal problems. U.S. should “stop the support of strong men in Africa.”

10:10: Panelist says that one of the things activists should do is to tell President Obama not to give Kagame immunity in U.S. courts, (as the State Dept. recently requested). Um, good luck with that. Guess we need to do another installment of “LOL International Law.”

10:14: Panelist expresses frustration that IBM and Apple get a hard time about conflict minerals, but mining companies get a free pass.

10:15: Emphasis on need to include the Congolese diaspora in the discussion.

10:17: It’s Laura time! She gives a shout-out to the people at Search for Common Ground who organized this event after seeing a blog post on Texasinafrica where she suggested something like this happen. Yay blogging, blogging FTW.

10:18: When she started her research in the Congo, no one was talking about the Congo, or about conflict minerals. Then celebrities and activists from Nick Kristof to Lucy Liu started visiting the HEAL Africa Hospital and Panzi hospital for advocacy and photo-ops. Then, several years ago, the focus shifted to conflict minerals.

10:20: Someone is yapping all through Laura’s remarks. Shush!

10:21: Laura, like most academics, is not a fan of the conflict-mineral narrative. There is insufficient evidence on more or less all points – how much of the world’s coltan is in Congo, whether cutting off revenue will cause armed groups to stop fighting, etc. More importantly, however, this is a narrative that was developed in Washington, and without the involvement of Congolese people. If we had involved local voices earlier, we might have recognized the potential harms of policies which have ended up putting thousands of people out of work – and might have also recognized how difficult supply-chain monitoring actually is.

10:23: Hooray, it’s personal anecdote time! Aw, Laura had a “delightful chat” with a bishop who asked her to be a “voice” for the Congolese, and now it’s a teachable moment about how we should listen DIRECTLY to Congolese voices and stop claiming to speak for them.

10:27: Hmm, apparently part of the panel thinks the conference is “off the record and not for attribution.” Not what the announcement says, suckers!

10:31: Money quote: “If it’s about U.S. consumers, please don’t call it a Congo strategy.”

10:33: Panelist wonders “when will we hold the mining companies responsible for what they have done,” in the same way that Holocaust survivors have held companies involved with the Nazis responsible through the courts for their involvement in the Holocaust.

10:35: Rachel Strohm has left the building. The room somehow seems dimmer.

10:36: Laura: Congo needs stronger institutions and rule of law. Period.

10:36: Apparently Congo is not a howling wilderness, there are sectors where things work. Laura suggests that we look at places in Congo that are pretty well governed, like Lubumbashi and Butembo, to draw lessons from them about how they collect revenue and get their institutions to work. More generally, security sector reform is a necessary precondition. The country needs to have all of its territory under its control. We need the FARDC to mean something.

10:38: Security sector reform needs to happen throughout the country, not just in the east.

10:39: Oh my my, “It should not be just one organization picking the witnesses for a congressional hearing on these issues.” And the SEC is having a roundtable on conflict minerals, and there should be Congolese voices at that table.

10:41: The floor is now open for questions. Oh sweet Jesus…

10:54: Some questions collected from the audience thus far:

  1. How should we deal with the lack of a willing partner in Kinshasa to undertake security sector reform?
  2. Is Kagame Hitler reincarnated?
  3. Will Dodd-Frank’s transparency requirements help with pursuing accountability for mining companies?
  4. Who is Kabila’s REAL father?
  5. Is the war in Congo Bill Clinton’s fault?
  6. Does “ICC” stand for “Injustice Colonial Court”?
  7. What are other African countries doing for Congo? We can say that the problems came from the West, but what are we doing to move forward from there, as Africans?

10:58 Panelist response: If you are an advocacy organization and you are caught between wanting to discuss the role of Rwanda in the conflict in Congo, and your sympathy for the Rwandan genocide, then you are compromised.

10:59 “The DRC actually has gone through security sector reform before, in the 60s.” Good point.

11:03: Internet is glitching out and there are no muffins. Oh the humanity…

11:05: Panelist discusses civilian review boards that oversee police in the U.S. Says wants an equivalent “civil society review board” for security sector reform in Congo.

11:06: Laura points out the African Union’s “tradition of not holding leaders accountable for their behavior” (see, e.g., Libya, Côte d’Ivoire), argues that accountability has to come from citizens of African states.

11:06: Laura says the blame game needs to stop in order to move forward. “No one is going to say that Belgian colonization was good for the Congolese people.” Um, didn’t Newt Gingrich say that in his PhD dissertation?

11:08: Another panelist pushes back. Blame is important, because opposite of blame is impunity.

11:09: Laura says she’s not pro-impunity, she just wants to focus on options that will allow “the woman who has been raped to safely return to her community,” rather than just allowing blame to dominate the conversation.

11:13: Floor is open again. Ruh-roh.

11:15: Love of god, why are there no muffins at this event?

11:17: Have we mentioned we’d really go for a muffin about now?

11:18: Question from the peanut gallery: Is the U.S. only interested in the rape story? Without it, would Congo drop off the foreign policy agenda entirely?

11:25: Panelist: for the love of god, don’t call your congressional reps and tell them you want them to “be more engaged”. That’s how you get Africom!

11:27: All we’re saying is, we were promised muffins.

11:30: Laura on how we can use democratic and diplomatic levers. There are opportunities, and we’ve missed a big one in the lead-up to the 2011 elections. Kabila is not that interested in SSR, but he is interested in reelection. We missed a big opportunity to support the elections in a way that promoted security sector reform. However, 40% of the DRC’s budget comes from foreign donors, so there are still opportunities there to put pressure on Kabila for SSR.

11:31: Laura raises a troubling concern: “What’s going to happen when Kabila wins with 25 or 30% of the vote?”

11:34: Laura notes that there are a broad variety of Congolese civil society organizations, covering all possible issues. They are smart, and motivated. However, they aren’t necessarily covering the “hot” issues, like rape or conflict minerals, so no one listens to them.

11:36: Another panelist takes up the same point. The NGO-partnership model mutes the conversation. “If I’m partnered with Enough, and I come to DC, then I am going to say what they want me to say, because my livelihood depends on it.” And everyone else gets ignored.

11:41: Question from the audience: if the U.S. doesn’t have interests in Congo, then why, according to Professor Erlinder, was the plan to invade formed in Virginia? (Panelists look bemused.)

11:44: Laura, responding to a question about what are the true root causes of the war in the Congo, asks “which one?” She notes that “the DRC wars are entangled, but they’re distinct.” She emphasizes, however, that state fragility contributes to all of it and that questions over land rights and citizenship continue to cause conflict.

11:48: Another panelist following up on Laura’s remarks: Conflict in the Congo is “overdetermined.” Ha!

11:52: Wow, audience NOT happy with Laura’s remarks about the need to resolve the citizenship status of Congolese of Rwandese origin in the Kivus. She said that there would not be peace until their status was clarified, and the room erupted in shouts of “no! no!” from Congolese audience members.

11:57: Ugh, we are SERIOUSLY due for a post on head of state immunity. Sorry, team “hold Kagame accountable in the U.S. courts”, no dice.

11:58: It’s over. Muffin time!

Time-Delay Blogging the Columbia Human Rights Panel: "Unexpected Disasters, Surprising Successes"

Welcome to our new feature, Time-Delay BloggingTM, in which one or both of us finally gets around to posting notes we took by hand on something we watched or attended.

Last week I went to a panel discussion in conjunction with my law school’s 150th anniversary (and believe me, everyone had a lot of fun with the word “sesquicentennial”) which featured human rightsy graduates discussing their work and their understanding of the evolution of the field. Let’s all imagine that I live-blogged it, shall we?

7:07*: Alumni Association Board member who 20 min ago at the reception brazenly interrupted my friend mid-sentence introduces the moderators with impressively faithful-to-the-text paraphrasing of their biographies. By which I mean: She read aloud from the event flier. Thanks, lady.

7:12: In his introductory remarks, my human rights professor totally jacks a joke I made regarding the title of the event and its possible applicability as a description of his career. Everyone laughs because I am funny.

7:16: Reed Brody (Human Rights Watch), noting a change in climate, muses “sometimes I wonder how it is that we used to get governments to criticize other governments.” Perhaps they used to offer them cookies?

7:23: Director of Center for Reproductive Rights Nancy Northup demonstrates impressive self-control, manages to remain in chair while certain human rights professor announces that he views her organization as a “subsidiary of [his] human rights clinic.”

7:38: It occurs to me that “extraordinary rendition” sounds way awesomer than it is.

7:50: Steven Shapiro (Legal Director of the ACLU) suggests that perhaps the move towards employing a human rights framework to discuss domestic legal issues can be explained by the fact the U.S. constitutional law “has gotten so bad.” Seems plausible to me.

8:06: Someone (Perhaps Reed Brody? Clearly I need to take better notes) wins the Pollyanna Award for Best Glass-Half-Full-y-ness Ever with the comment “hypocrisy is not as good as respecting human rights, but it’s better than ignoring them.”

*timestamps are more or less fabricated.