WTF Friday, 9/14/2012

A historical “WTF” to wrap up a rough week:

The National Archives released 1,000 declassified documents on the 1940 Katyn Forest Massacre on Monday. In case you’re not up on your mid-century atrocities, Katyn was a mass slaughter of 22,000 Polish military officials and members of the intelligentsia committed by the Soviet secret police.

When the mass graves were discovered in 1943, the Soviets crossed their fingers behind their backs and pinned the blame on the Nazis. (Silver lining to proximity to an aggressive regime committing genocide and crimes against humanity on an unprecedented scale: No one really bats an eye when the odd extra atrocity get entered on their side of the ledger.) When that went off without a hitch, the Soviets decided shame was for chumps, and attempted to get the Katyn Forest Massacre added to the list of charges at Nuremberg.

Although a number of investigations suggested that the Soviets were the true perpetrators, neither the U.S. nor the U.K. challenged their account, either at the time or in the half century that followed. U.S. government officials maintained that they “did not possess the facts that could clearly refute the Soviets’ allegations that these crimes were committed by the Third Reich” until the 1990 official Russian admission of guilt.

Turns out, they lied.

The newly released documents show clearly that the U.S. government not only had evidence as early as 1943 that the Nazis could not have committed the massacre, but made a deliberate decision to suppress it and continued to do so for fifty years after the wartime rationale of maintaining the Allied alliance disappeared. If that doesn’t earn a resounding “WTF,” I don’t know what does.

 

(Image from the National Archives.)

 

Whither Bosco?

Yesterday’s internets were full of the news that Congolese President Joseph Kabila has finally stated publicly that Bosco Ntaganda should be arrested and tried for war crimes.

Ntaganda’s continued freedom, and prominent position as a general in the Congolese national army (FARDC), has been a thorn in the side of international justice advocates who want him to face trial on a 2006 ICC warrant. -Particularly for ICC Prosecutor Luis Moreno-Ocampo, who has repeatedly called on the Congolese government and/or MONUSCO to arrest Ntaganda and surrender him to the ICC. However, regional actors have been reluctant to act on these demands due to their belief that Ntaganda’s cooperation is crucial to ensuring (relative) stability in the Kivus.

A statement by Kabila that Ntaganda should stand trial is therefore big news. Events over the last couple of weeks have suggested that Ntaganda’s grip on power may be slipping. If regional powers (specifically, the Rwandan government) no longer think his cooperation is necessary for peace in the Kivus, then he may indeed be vulnerable to arrest. However, as Jason Stearns points out, it’s not clear what Kabila actually said. Although Western media are reporting it as a call for Ntaganda’s immediate capture, it may simply have been a statement that he “could be arrested by Congolese officials when the moment is right.”

Whether or not Ntaganda ends up in the dock, these developments have set off a new round of the perennial peace vs. justice debate. For advocates of justice, Ntaganda’s ability to live freely among the victims of CNDP atrocities is a clear case of unacceptable impunity. For those on the other side of the debate, his freedom is simply the price of preventing future atrocities.

A number of people, concerned about the risk of violence in the Kivus if Ntaganda gets nabbed, have asked what options the Prosecutor has for suspending the warrant. The answer is: none.

Unsurprisingly, the architecture of the international criminal law system skews heavily towards Team Justice in the peace vs. justice debate. Although the Rome Statue builds in some prosecutorial discretion regarding decisions about what cases to pursue – specifically, Article 53 allows the Prosecutor to decline to proceed with an investigation “there are substantial reasons to believe that an investigation would not serve the interests of justice” – once a warrant is issued the Prosecutor has no ability to defer to political considerations. There are, however, two other legal mechanisms that can delay or prevent an ICC prosecution once a warrant has been issued. (And, of course, the political mechanism of everybody just looking the other way and not arresting the guy.)

The first is the Article 16 Security Council deferral procedure, which can delay an ICC prosecution for renewable 1 year periods. The implication of situating this mechanism within the Council’s Chapter VII powers is that it applies only when a prosecution represents a threat to the peace.

The second is the preemption of ICC prosecution by a domestic trial, which I’ve explained previously. (This one actually underscores how little power the Prosecutor has to defer to politics after the issuance of warrants. In the case of Saif al-Gaddafi, we’ve seen Moreno-Ocampo support Libya’s new government’s efforts to preempt the ICC prosecution, only to get slapped down by the Pre-Trial Chamber.)

Either of these mechanisms could potentially be utilized in the Ntaganda case, however, it’s not clear that they would actually help with the peace vs. justice conundrum.

The Security Council deferral mechanism only delays the process; it doesn’t lift the warrant, so whatever incentives a looming threat of prosecution creates to retain the ability to spoil peace would persist. And preempting ICC jurisdiction through a domestic proceeding would require the Congolese authorities to try Ntaganda under conditions that meet international fair trial standards (i.e. no indefinite detention, no secretive military tribunal). Such a process is therefore likely to be at least as disruptive to the peace as an ICC prosecution.

Given the other choices on the table, the selection (so far) of the “let him wander around Goma, profiting off of everything in sight” option starts to look a bit more understandable…

Hot International Justice Action

Now that the Kony 2012 furor has died down a bit, we can get back to the fun stuff: international law!

Here’s what’s gone on while we were all busy being self-righteous on the internet:

  • The ICC handed down its first-ever verdict in the Lubanga case. If you’re wondering why it took 10 years, take a look at the >600-page judgment, reflect on the fact that this was a comparatively simple prosecution (a single accused, only one war crime charged), and start wondering instead how many decades it will take them to get through the next trial.
  • Mauritania arrested former Libyan intelligence chief Abdullah al-Senussi, who is the subject of an ICC warrant for his role in crimes against humanity committed during the 2011 Libyan civil war. The ICC’s not the only court that wants him, though. Both Libya and France (which would like to try him for his role in an airplane bombing that killed 54 French nationals in 1989) have also requested his extradition. Step aside Kony, there’s a new contender for “World’s Most Eligible War Criminal.”

 

Takes One to Know One?

In a late entry for most absurd human rights story of 2011, the Arab League has appointed Sudanese General Mohammad Ahmed Mustafa al-Dabi to head their observer mission to Syria. As David Kenner points out in an article titled “The World’s Worst Human Rights Observer,” Dabi is implicated in the Bashir regime’s organization of atrocity-committing janjaweed militias in Darfur, making him rather an unconventional choice for a human rights observer mission.

An anonymous reader suggests that Dabi’s background as an (alleged) participant in genocide mean he’s overqualified to monitor mere crimes against humanity. But I’m kind of thinking the Arab League might be onto something. I mean, it’s like home alarm system companies using ex-burglars as “security consultants,” right? Who better to catch a war criminal?

Kibitzing the New York Times

Alert reader Sacha Guney sent in this New York Times article on the discovery, in an Iraqi junkyard, of 400 pages of records of the Marines’ internal investigation of the 2005 Haditha massacre.

As Sacha points out, the reporting’s a little… weird. For an article about the clear commission of an atrocity, there’s shockingly little reference to any concept of individual criminal responsibility. Instead, we get a story about the negative mental health consequences of combat. Specifically:

“Others became so desensitized and inured to the killing that they fired on Iraqi civilians deliberately while their fellow soldiers snapped pictures, and were court-martialed.”

I don’t doubt that war is hell, or that American soldiers in Iraq were indeed under “extraordinary strain”, but another way to write that sentence would have been: “Others were mass-murdering psychopaths.” But you know, you say “potato”…

So I’m ultimately unsure what to make of this piece. It’s clearly not intended as an apologia for the commission of mass atrocity, and it offers an illuminating exposition of the conditions that made “use force first and ask questions later” feel like the only possible approach to the civilian population.

But, imagine this story were about an African army, or really any other military in the world. Is there any way it doesn’t involve the phrase “war crimes”?

Weird Stuff: Today in Genocide

Hey Internets, long time no see. On the list of things I’m going to try to be better about in 2011 is “occasionally showing up to my own blog.”

Meanwhile, a collection of improbable genocide and war crimes related news stories for your end-of-the-year enjoyment:

  1. Alleged war criminal Goran Hadzic may be attempting to finance his life on the run through the sale of a Modigliani oil painting said by Serbian authorities to be worth millions of euros.
  2. Guardian columnist declares Sudanese President Omar al-Bashir misunderstood, not such a jerk after all (h/t: Atlantic Wire).
  3. Academy Award winner / Carrier Pigeon of Peace George Clooney launches genocide prevention satellite surveillance service.

And in less improbable genocide-related news, Côte d’Ivoire’s new ambassador to the United Nations, Youssofou Bamba, has warned the international community that his country is “on the brink of genocide” following no-longer-the-President Laurent Gbagbo’s refusal to hand over power to actually-the-President Alassane Ouattara, the internationally recognized winner of the Nov. 28th runoff election. For an excellent overview of why we should take his statement seriously, see Jina Moore’s new post on the situation.

WTF Friday, 10/29/10

Serbia has increased the reward for capturing Ratko Mladic to $14 million! Who will find him?!?

Morgan Tsvangirai has threatened to sue Robert Mugabe over what he believes to be unconstitutional appointments. However, Section 31 (K) of the Zimbabwean Constitution may prevent such action: “Where the President is required or permitted by this Constitution or any other law to act on his own deliberate judgment, a court shall not in any case inquire into any of the following questions or matter.” Kind of feel like that section needs to be tweaked a little bit…

Meanwhile, Mugabe is busy giving $300,000 to the Zimbabwean man who came in 2nd in “Big Brother Africa.” The donation has been described as “compensation for depression.” Let’s hope the aforementioned lawsuit doesn’t infringe on President Mugabe’s ability to support such obviously worthwhile causes.

While I Was Out: UN Mapping Report Edition

So, I went on vacation (I know, what was I thinking?) and while I was gone a hurricane-force Congo news cycle hit the interwebs. A hurricane-force hurricane also hit my vacation, but that was less of an issue.

Setting aside for now the mass rapes in Walikale and subsequent uproar about MONUSCO’s civilian protection capacity, let’s talk about the UN Mapping Report. The big news is that the UN High Commissioner for Human Rights has concluded that abuses committed by Rwandan forces in the Eastern DRC between 1994 and 2003 may constitute crimes against humanity or even genocide. Needless to say, Rwanda is none too pleased.

If you haven’t yet read Howard French’s analysis in the New York Times, I suggest that you do so. (I also suggest that we all chip in for some sort of plaque commemorating his heroic restraint in avoiding use of the phrase “I told you so” anywhere in the article.) TexasinAfrica provides some helpful additional commentary here. She also points out that the discussion of justice and accountability has gotten a bit confused and could maybe use a bit of lawyering.

I agree. And, given that I am a licensed law-talking-guy, I’ma take a shot at sorting this out. To review, the question on the table is: If these acts constitute crimes against humanity or genocide, where can the perpetrators be tried?

A few potential venues have been mentioned, including two existing bodies: the International Criminal Court and the International Criminal Tribunal for Rwanda. Let’s consider:

Option 1: The International Criminal Court (ICC)

  • Who can be tried there? Nationals of State Parties to the Rome Statute (which Rwanda isn’t) OR others if the conduct (1) occurs on the territory of a State Party or (2) is part of a situation referred to the ICC Prosecutor by the UN Security Council.
  • For what crimes? Genocide, crimes against humanity, war crimes.
  • Committed during what time period? After July 1, 2002.
  • Committed where? On the territory of a state party OR elsewhere if the accused person is a national of a state party.

Option 2: The International Criminal Tribunal for Rwanda (ICTR)

  • Who can be tried there? Rwandans and those who committed applicable crimes on Rwandan territory.
  • For what crimes? Genocide and other “serious violations of international humanitarian law.”
  • Committed during what time period? Between January 1 and December 31, 1994.
  • Committed where? In Rwanda OR in neighboring states if the perpetrators were Rwandan citizens.

Clearly, neither of these venues is a great choice since neither has jurisdiction over more than a year of the implicated time period.

Another possibility would be a new international tribunal to address crimes in the DRC. This is not very likely. There’s a reason the Security Council hasn’t created a new international tribunal in almost 20 years, and that reason rhymes with shmella shmexpensive. The more recently created international justice mechanisms (in Sierra Leone, East Timor, Cambodia, etc.) have been hybrid tribunals – bodies that are situated within a domestic judicial system but that apply international law and are staffed by a mix of international and local personnel.

Hybrid tribunals are an attractive option because they (1) are cheaper to set up and run than international criminal tribunals, (2) may be more accessible to victim populations, and (3) may help to build the capacity of a damaged or developing justice system. (Although incipient-social-scientist-Kate would like to interrupt lawyer-Kate here to point out that there isn’t actually much evidence supporting this last claim.) Unsurprisingly, this is the approach endorsed by the authors of the Mapping Report.

Bear in mind that there are other possible avenues toward accountability here. Individual perpetrators could be tried by the DRC’s domestic courts or by Rwanda’s military courts. However, given the scale of the atrocities, and their occurrence during a security crisis that has been the subject of sustained (or at least, intermittent) international concern, we should expect substantial international involvement in the accountability process. Odds are on a hybrid tribunal, place your bets.

Things I Liked Quite a Bit: War Don Don

If you’re in New York this week, or DC next week, I highly recommend checking out War Don Don, a new documentary about former RUF leader Issa Sesay’s trial in the Special Court for Sierra Leone.

Director Rebecca Richman Cohen has a J.D. from Harvard law school, and she puts her legal knowledge to good use in this film. Rather than pushing a particular narrative, or view of the international justice system, War Don Don allows the individuals at the heart of the trial to speak for themselves. This leads to some unintentionally funny results at times – at one point prosecutor David Crane (who has since further distinguished himself by becoming an advisor to that ridiculous “to catch a war criminal” show) looks into the camera and says, in an ominous tone, that Sesay’s trial was “the first time I looked into the eyes of a human being and realized that he had no soul.” By contrast, defense attorney Wayne Jordash is prone to wistful sighs about how nice a guy Sesay is, and how he wishes that he weren’t in prison so that they could hang out more.

Amidst the amusing soundbites, however, War Don Don manages to highlight some serious issues with the way the tribunal has administered justice. For instance, although both sides offered payments to witnesses to cover the costs associated with their testimony, the prosecution was able to pay far more than the defense, as well as to offer perks like resettlement in a wealthy country. More troubling still, Sesay receives little credit for his efforts at resolving the war: he was the RUF commander who presided over the disarmament process, a task which he undertook over the objections of much of the RUF’s senior leadership. In a statement delivered to the court during the sentencing phase of his trial, Sesay pointed out that rebels who had refused to disarm were being courted by the UN, while he – who had actively participated in the peace process years earlier – was now in the dock.

To the film’s credit, it doesn’t feel forced to answer the questions it raises. War Don Don is a way to start a broader conversation about international justice, not to end one.

In sum: go, and take your interns with you! War Don Don is showing today at 2 PM and Wednesday the 16th at 4 PM here in New York, as part of the Human Rights Watch International Film Festival, and then on June 22nd and 26th in Silver Spring, as part of the AFI-Discovery Channel Silverdocs Documentary Festival.

Dear Repressed People of Sudan: Time to Get Some of Those Arm Things

Michael Kevane, on the prospects for a Sudanese peace deal:

” At some point in the next year, the Sudanese public and the world community will be presented with a “deal”, and every person concerned will have to ask whether the deal is an attempt to hoodwink the most marginalized and preserve the positions of power and wealth enjoyed by the few.”

He has some guesses about what those “few” will say to get everyone else to go along with their deal, too:

- “This is the last chance. If this deal is not accepted, the future will be far worse.”
- “This is the only deal possible. Either this deal is accepted or there will be no deal.”
- “This deal is a reasonable compromise, good enough for everyone.”

Because no people’s movement can succeed without a really smashing accessory, Kevane has a fab suggestion for how to jazz up the resistance: arm thingies!!!

“So I only have one piece of advice for that Sudanese public. Get some of those arm things that are used by civil disobedience demonstrators everywhere in the world. Store them at Lubna Hussein’s house, and break them out when the “deal” is announced and it doesnt contain four things:
1- Robust demobilization of NCP/SAF armed proxies in Darfur, permitting IDPs to return in security or stay in camps in security.
2- Stiff sanctions against NCP for violations of normal press freedoms and freedom of assembly.
3- Very aggressive international monitoring of elections, voter registration and referendum, enabling international backup if processes are tampered with.
4- Oil revenues into a transparent account, and out of the hands of military”

But Michael, where can the people GET themselves some arm thingies? As we all know, protester-arm-thingies are but one of the many things in which Africa is lacking. Obviously, some saintly soul must undertake Operation Thing Those Arms, Baby! (“ATTAB!”), and conduct a daring air-drop mission to deliver these vital goods to downbeaten Darfuris and subjugated South Sudanese.
Clooney? Kristof? Anyone listening?

Hat tip: Michelle.