The International Criminal Court: Justice versus Judgment

The International Criminal Court: Justice versus Judgment

by

Howard Adelman

If mercy is almost inherently unjust (see yesterday’s blog), an international system of justice may be inherently merciless. A system of justice brought to the treatment of genocidaires, murderers and abductors is fraught with even more paradoxes than the humanitarian dilemma. On 16 December 2003, Yoweri Museveni, president of Uganda, referred the issue of the Lord’s Resistance Army (LRA) to the International Criminal Court (ICC). Uganda became the first sovereign state to invoke Articles 13 (a) and 14 of the Rome Statute granting the ICC jurisdiction over domestic criminality.

On 13 October 2005, the ICC unveiled its first ever arrest warrants, though they were issued on 8 July. The delay was only a result of security preparations. Four leading LRA commanders, in addition to Joseph Kony, were indicted — Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. Today, only Kony remains at large and only Dominic Ongwen is under arrest in The Hague. One was killed in battle, one was captured by local militias and one, the peace negotiator, Victor Otti, was killed by Joseph Kony himself. All of them had been charged with a litany of war crimes and crimes against humanity dating only after mid-2002 since the ICC did not have jurisdiction before that date.

The United States Senate has not ratified the Rome Statute that President Bill Clinton signed in 2000. George W. Bush subsequently suspended the country’s signature. Barack Obama has never renewed the effort to sign the treaty. Instead, the United States has systematically sought and obtained bilateral immunity agreements with over 100 countries that American nationals would not be subject to prosecution outside U.S. borders. The U.S. also enjoys the protection of its status as a permanent member of the Security Council where it can veto any reference by the UNSC to the ICC. On the other hand, in 2008, Obama committed his administration to ensure justice for those who committed crimes against humanity and war crimes. Though Obama could accede to the Rome Statute in practice, that accession would have no possibility of being ratified by the Senate.

However, without even the Senate veto, there are at least four different reasons Obama will not sign the Rome statute:

  • The American Servicemembers’ Protection Act (ASPA 2002), which explicitly prohibits cooperation between the U.S. and the ICC, is still in force.
  • The Obama administration has no interest in resurrecting the issue of alleged American war crimes in Iraq and Afghanistan and does not want to make Americans vulnerable to investigations by the ICC.
  • Given statements by high-level UN officials decrying American drone strikes that are part of Obama’s war on terror, and given those officials’ allegations that targeting civilian areas is illegal under international law and a war crime, the U.S. has no interest in placing these drone strikes under an international legal microscope.
  • The U.S. opposes an ICC investigation into Israeli actions during the Gaza War, for example, and opposes the Palestinian Authority requesting such an investigation.

Not only does exempting the U.S. from the jurisdiction of the ICC undermine the principle of universal applicability, it points out the inherent tension between the ostensible universal jurisdiction of the court and the authority of a sovereign state. America’s exemption from the Rome statute seriously impairs the principle of universal international jurisdiction of the ICC.

When the ICC issued the arrest warrants for the LRA-five for enslavement, rape, and inhumane acts, inflicting serious bodily injury and suffering, as well as twenty-one counts of war crimes, including cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, rape, and the forced enlisting of children, it did so without reference to or under the authority of the United Nations Security Council, the premier international political body in the world. The ICC had positioned itself as a court of legal jurisdiction independent of the UNSC. Without taking away the right of the UNSC to refer cases to the ICC, this tension over the independence of the ICC from the UNSC was quickly and easily dissipated when the head of the United Nations, Kofi Annan, welcomed the indictments and hailed the initiative as sending “a powerful signal around the world that those responsible for such crimes will be held accountable for their actions.”

The second issue was trickier and was left unresolved. When Museveni referred the matter to the ICC, by that request for an indictment, was Museveni, at the same time, denying his own state, Uganda, legal jurisdiction over the LRA-five? When Dominic Ongwen was captured and handed over to the Ugandan army, Kampala initially wanted to try him. But others insisted that Uganda, by referring the case to the ICC, had already granted ICC primary jurisdiction. The conflict was resolved, but not the division over principles behind it, when Uganda voluntarily granted ICC jurisdiction on the basis that Ongwen was alleged to have committed war crimes and crimes against humanity in several countries (Central African Republic, Democratic Republic of the Congo, South Sudan as well as Uganda) and, therefore The Hague would be a better place to try him. But Uganda never acceded to the principle that the ICC jurisdiction trumped that of the sovereign state of Uganda.

Many analysts are concerned that the ICC may undermine national justice systems. They offer a very strict and narrow interpretation of the complementarity provisions of the Rome Statute, namely that, “no case is admissible where a country is willing and capable of conducting its own prosecution.” The strict provision offsets a third concern, the potential manipulation of the ICC for political ends. Did Yoweri Museveni refer the LRA indictments to the ICC for political rather than legal reasons? Was it an effort to mobilize the international community behind Uganda to enhance Uganda’s efforts to eliminate the threat of the LRA?

This issue arose over the reference of the LRA-five to the ICC even before the indictments were issued. From the very beginning, the question was raised whether the charges were laid on purely legal grounds or was the issue of the arrest warrants a political act in partnership with Uganda to use international law to induce the commanders of the LRA to surrender? Earlier, the reference by Museveni of the LRA issue to the ICC put pressure on the government of Sudan. Suddenly, after the reference to the ICC, Sudan acceded to Museveni’s request that Sudan end its support for the LRA and wind up the LRA bases in South Sudan. A March 2004 Protocol to permit the UPDF to attack LRA bases in southern Sudan was also agreed upon. This was precisely at the moment that LRA abuses had reached their peak. The ICC appeared as having been used for national political purposes.

The fourth dilemma of the ICC and the international community, complementary to the one immediately above, was the tension between peacemaking and meting out justice. Kony wanted immunity from the jurisdiction of the ICC for both himself and his commanders. Most of the population on the ground wanted peace even if it meant Kony and his colleagues got away with their murder and mayhem. The bulk of the population had been interned in internally displaced persons (IDP) camps for ten years and did not want to surrender the opportunity to return to their home villages. Two million people, ninety percent of the population of Uganda’s northern Acholi provinces, had abandoned their homes presumably in exchange for shelter and security. The camps were not only crowded and unsanitary, but they had not even provided the security supposedly guaranteed. Instead, they offered a more concentrated target for raids and abductions than the widely dispersed villages.

The other side of the argument was that the failure to offer amnesty undermined peace efforts. Rebel forces would be alienated when they could not access the protection offered by the Ugandan government’s Amnesty Act of 2000. The ICC indictments counteracted the incentive to defect from the LRA. The Amnesty Act had guaranteed blanket amnesty for all rebels of any rank who voluntarily surrendered. Ugandan minister Betty Bigombe, backed by the United States, Britain, the Netherlands, Norway, and the Catholic Church, used amnesty as a negotiating tool. Face-to-face meetings between senior government officials and LRA leaders in 2004 almost resulted in a peace agreement. The issuance if the ICC indictments put the nail in the coffin of those efforts.

Bigombe loudly complained that the ICC had rushed getting out the indictments and had not given the peace channel enough time, scuttling her efforts. Even more seriously, the ICC charges, and the refusal of the ICC to set them aside, deprived future negotiators of an essential tool in negotiating peace. Archbishop Odama of the Gulu Catholic Archdiocese concurred. “This is a blow to the peace process…Confidence-building has been moving well, but now the LRA will look at whoever gets in contact with them as an agent of the ICC.” Peter Onega, chair of the Uganda Amnesty Commission, insisted that amnesty still applied to all other rebels not named in the indictment. But even then, there would be two countervailing forces. Rebels who tried to defect, or suspected of wanting to defect, would be killed by the senior commanders. Furthermore, ICC commanders below the top could not be sure they would not be indicted if they did defect. For both reasons, the ICC arrest warrants undermined peace efforts and, in particular, the role that amnesty could play.

This was not a new issue. At the time of the drafting of the Rome Statute, the Harvard Human Rights Journal (V. 19) adumbrated the problem. The journal raised the issue whether offers of amnesty should be complemented by suspension of indictments. Even more, it was argued that prosecutions would prolong conflicts since they would narrow the number of options available to the peace negotiators. Broader more exible measures in cases of mass atrocities might be more appropriate. On the other hand, there were fears that genocidaire leaders and those responsible for war crimes would escape punishment.

There was no resolution to the conundrum. Article 53(1)(c) was deliberately vague leaving it up to the ICC prosecutor, not the political and military negotiators, to decide “taking into account the gravity of the crime and interests of the victim” and balancing those factors against the interest in justice. The 1948 Genocide Convention and the 1949 Geneva Conventions had the same problem. They resolved the issue in the same way by creating a binding obligation to prosecute egregious crimes such as genocide, but taking into consideration the context of international armed conflict. It did so by an even vaguer phrasing, both with respect to the responsibility of the ICC, the extent of its reach, and the applicability and timing of its actions.

This discretional provision for jurisdiction from one perspective, seemed to provide wiggle room for political negotiators while keeping the principle of justice for perpetrators intact. After all, since Museveni referred the issue of indictments to the ICC, a number of former rebels and a high-ranking LRA brigadier did surrender under the Amnesty Act of 2000. In fact, it was argued, the fear of being indicted pushed those fighters to surrender while amnesty was still available.

Even though Kony had been pushed into a corner by the end of 2008, even though the peace negotiations between long-term the LRA and the African Union Forces had come a long way, the ICC believed that the cause of justice could not be sacrificed for the immediate gain of a promise of peace. Besides, almost no one trusted Kony to keep the peace. After all, he even had his chief peace negotiator and deputy killed for becoming too susceptible to the entreaties of the peace negotiators.

There were two other major tensions resulting from the ICC charges against Kony and his cronies. On the one hand, there were the charges of victor’s justice. On the other hand, there were the complementary accusations that the meting out of justice was unjust, for Museveni had himself been guilty of war crimes and crimes against humanity or, the very least, widely alleged to have committed such crimes. Why had a warrant of arrest not been issued against Yoweri Museveni? At the same time as the actions of the ICC were widely lauded, many organizations criticized the ICC for its failure to take broader action against human rights violations perpetrated by the government in Kampala.

In the effort to decimate the LRA, the Ugandan army, the UPDF (United People’s Defense Forces), “bombed and burned down villages, thus fueling the displacement of the Acholi.” Further, the Acholi Religious Leaders Peace Initiative and the Refugee Law Project documented numerous accounts of rapes and sexual attacks against women by UPDF soldiers and of killing civilians found outside IDP camps. In effect, Uganda was accused of setting up forced internment camps in the guise of “protection camps” or “protected villages.” These “protected villages,” which often lacked food, clean water, sanitation, and medicines, were safeguarded by local militias or the Ugandan national army. Nevertheless, the inhabitants remained easy targets. They continued to be maimed, raped, murdered, and abducted by the LRA—and reportedly mistreated by un-disciplined UPDF soldiers as well.

Luis Moreno-Ocampo, the ICC’s chief prosecutor, defended his decision not to lay any charges against individuals in the Museveni government and only charge LRA top commanders by insisting that, “[w]e analyzed the gravity of all crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed by the LRA were much more numerous and of much higher gravity. . .We therefore started with an investigation of the LRA.” It was the number of crimes and the gravity of the crimes not the fact that some crimes were committed by the Ugandan government that determined that only the LRA leaders were indicted. However, the appearance of one-sided justice undercut the credibility of the ICC in the eyes of Acholi leaders and the Acholi community.

Finally, there was a debate over the nature of justice itself. Critics of the ICC, especially those favouring traditional Ugandan community modes of meting out justice, stressed restorative justice that emphasized the primacy to healing and reconciliation, the restoration of the unity of the community rather than the punishment of any one individual. Odama, and other Acholi religious and political leaders, argued in favour of traditional justice, a process based on public confessions of guilt, cleansing rituals, and the eventual acceptance of LRA members back into communities. This was parallel to the way the vast number of those charged with crimes in the Rwanda genocide were dealt with in the gacaca process.

How are the interests of victims served by either process? Perhaps by neither. After all, reconciliation is generally not rooted in justice systems at all, but in narratives of the women and spiritual and evangelical religious practices. The process of ICC justice, however, was rooted in detachment and universal abstract principles both divorced from everyday practices, especially a belief in the importance of invisible forces in fostering a healing process. Enchantment was necessary to offset disenchantment. How else could relationships be restored except by concepts such as Christian forgiveness and the metaphysics of redemption? But is the abstract principle of “natural” law and “human’ rights any less invisible and magical?

At the same time, Acholi “traditional” justice is inconsistent in its practices and both violent or humiliating. The fact is that any system of justice is infused with politics and tensions. In traditional justice, there are tensions between elders and religious leaders, between the older leadership and the young. Thus, the tensions between modern international justice and traditional justice systems are but a manifestation of the reality that reasonable judgment must be exercised in mediating the multi-dimensional conflicts on all levels between justice and politics, between state and international jurisdiction, between purity of principle and the messiness of any application. In the end, there is no avoidance of the need for reasonable judgment.

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XI: Samantha Power, Invisible Children and Joseph Kony

XI: Samantha Power, Invisible Children and Joseph Kony

by

Howard Adelman

There is one area where there has been real progress in reducing atrocities – the changing status of the marauding, plundering, abducting and murderous Lord’s Resistance Army (LRA) led by Joseph Kony. Defections of personnel from the LRA are way up; the number of atrocities is way down. A week ago (14.01.2015), the last of Joseph Kony’s lieutenants alive, 34-year-old Dominic Ongwen, originally a 10-year old LRA abductee, was handed over to Ugandan troops in the Central African Republic. He is wanted for war crimes and crimes against humanity by the International Criminal Court (ICC) in The Hague, and, since his capture, he has been transferred to the ICC.

It is still unclear whether Ongwen defected to U.S. Special Forces troops working in collaboration with Ugandan army units or was captured by Mounir Ahmat, commander of the Central African Republic’s (CAR) mostly Muslim Seleka rebel group. The latter claimed they had captured Ongwen near the eastern town of Sam Ouandja when he was trying to escape and Mounir claimed the $5 million U.S. reward on offer since 2013. The U.S. forces said that Ongwen defected. Uganda, which initially wanted to try him, under pressure, agreed to transfer him to the ICC that had issued his arrest warrant in 2005. Ugandan President Yoweri Museveni conceded that the LRA had also committed atrocities in neighbouring countries and, therefore, Ongwen should face international justice.

Last year, Okot Odhiambo, then LRA’s second in command, was killed in CAR by African Union forces near the town of Djema, On 12 May 2012, Caesar Achellam was captured by the Ugandan military in the CAR. In 2011, “Brigadier” Bok Abudema was killed by the Ugandan army. Vincent Otti was killed on Kony’s orders in November 2007 for wanting to sign the peace deal offered by the Ugandan government and that he, Otti, had personally negotiated. In August 2006, the first of Kony’s lieutenants to be taken out was killed by the Ugandan army just before Kony signed a Cessation of Hostilities agreement that initiated two years of peace talks. After the collapse of the peace negotiations, the LRA left Uganda and never returned.

As background, the north and south of Uganda have been at odds throughout the colonial period with a de facto peace imposed by the British by allowing the Acholi in the north to predominate in the army and the Buganda in the south to become predominant in the civil service and the professions. Between Idi Amin’s assumption of rule in 1971, when he and his West-Nilers overthrew the democratic government made almost impotent by north-south divisions, until he himself was overthrown in 1979, 300,000 Ugandans had been slaughtered by his regime. However, the 1979 intervention by Tanzanian troops backing former Prime Minister Milton Obote in partnership with General Tito Okello leading an army of purged Acholi ex-soldiers, the Uganda National Liberation Front/Army (UNLF/A), proved to be even more murderous than Idi Amin. Frustrated by the lack of peace and reconciliation, in July 1985 Okello led a revolt that overthrew Obote only to be overthrown in turn six months later by Yoweri Museveni’s combination of Bugandans and Rwandan Tutsis.

Now, neither the government nor the army had a significant presence of Acholi after a short period in which they had dominated both. Disaffected Acholi soldiers returned north and became engaged in a struggle with tribal elders who viewed the soldiers as “contaminated’ by the spirits of their dead enemies. Modernity vied with traditionalism only to yield to the leadership of a charismatic Joan of Arc, Alice Auma (Lakwena), a spiritualist claiming to have been possessed by a dead Italian general. Alice rallied both ex-soldiers and elders behind the reconstituted Holy Spirit Mobile Forces (HSMF), or Holy Spirit Movement (HSM), that initially had considerable success against Museveni’s Ugandan National Resistance Army. The HSM with its new-found discipline and messianic fervour (the resurrection of Jesus Christ had been promised), in spite of its initial victories, was decisively defeated in November 1987 after coming within 50 km of Kampala.

In the late 1980s and early 1990s, taking advantage of both the defeat of Alice Lakwena whose spirit he claimed to have inherited, and the availability of disaffected former soldiers who refused to accede to the peace agreement between northern insurgents and the new Ugandan army, Joesph Kony initiated his so-called rebellion. He was aided and abetted by the continuing alienation of northern Uganda from the Yoweri Museveni regime. The LRA (originally the United Holy Salvation Army/Uganda Christian Army/Movement) under Joseph Kony emerged as a dangerous extremist Christian cult that kidnapped children and sent fear throughout the Acholi people who populated the north of Uganda. Supported initially by the Sudanese government in Khartoum, which then viewed Museveni as an upstart who aided the rebellious south Sudanese, the LRA’s ostensible purpose was the overthrow of Museveni. However, the primary victims of its campaign of pillaging, rape and abductions were the Acholi people. The latter were caught between the LRA, which they learned to fear, and the Museveni regime, which they loathed.

Though the LRA was both a spiritualist and an evangelical Christian organization as well as a personality cult, with the support of Sudan it also developed a strong political agenda, but its methods of intimidation and maiming, mutilations and abductions soon alienated Kony from the local Acholi population and eventually Khartoum. After failed peace talks that began in 1994 and a resumption of the war, in 2002, Museveni decided to bring the LRA reign of terror in the north to an end by launching a full-scale military action to hunt Kony down. He had obtained the agreement of the Sudanese government to allow Ugandan troops to invade southern Sudan in Operation Iron Fist. However, Kony counterattacked against IDP camps and escaped the pincer efforts of the government. Mediation in 2004 by both the Carter Centre in Atlanta and Pope John Paul II failed. Subsequently, Joseph Kony was made an international pariah, having been accused of crimes against humanity by the ICC. In 2005, the U.S. placed Joseph Kony on a list of most wanted terrorists. By 2006, UNICEF estimated that in the previous 15 years, the LRA had abducted 25,000 children (many became kadogo – child soldiers) and others estimated numbers as high as 60,000 including porters, sex slaves, etc. 95% of the Acholi population was living in over 200 IDP camps in the north of Uganda in February of that year, in part to protect them and in part to deprive Kony of a support base. Initially, a UN special forces operation to capture Kony failed abysmally at a cost of 8 Guatemalan commandos.

Peace talks began in 2006 and lasted until the end of 2008. As with previous efforts, they also ended in failure, according to Kony, because he and his lieutenants were not promised amnesty from the charges laid by the ICC. Operation Lightning Thunder (OLT) was then launched by Uganda, Democratic Republic of Congo (DRC), CAR and Sudan. The U.S. supplied intelligence and logistical support. Kony escaped. Led by Dominic Ongwen, the LRA attacked villages in DRC on 24 December 2008, killing 865 civilians and abducting 160 more over the next several weeks. Just before the next Christmas in 2009, the LRA launched attacks in the northeast of DRC in the Makombo region, killing 321 and abducting 250. Human Rights Watch broke the news three months later.

Since then, however, as described in the third paragraph above, the whole of the command structure of the LRA has been eliminated. The only leader of the LRA left is Joseph Kony himself, the former Catholic altar boy, athlete (he played football) and reputedly brilliant dancer. He survives with an estimated 200 followers hiding in northeastern CAR. He is being hunted down by four African armies supported by 100 U.S. special forces troops, Navy Seals, who were featured in the movie American Sniper, reviewed last week. As I will try to make clear, this is not the only overlap between the Kony story and that of Chris Kyle, the top American sniper in American military history. However, unlike Iraq, the U.S. special forces in CAR only provide logistical, medical, training and intelligence support. In March 2014, the mission obtained four V-22 Ospreys and the total force authorized was expanded to 300, though evidently only 150 have been deployed.

Can Samantha Power (SP) and/or Barack Obama claim any credit? After all, when SP was Obama’s adviser on reducing atrocities, in May 2010, President Obama signed the “Lord’s Resistance Army Disarmament and Northern Recovery Act” that authorized the deployment of U.S. troops to the region. Obama said to the Invisible Children (IC), an activist group launched to bring attention to LRA atrocities and in attendance when the bill was signed, “We have seen your reporting, your websites, your blogs, and your video postcards—you have made the plight of the children visible to us all.” Obama gave IC enormous credit. Samantha Power had been an active promoter and backer of IC.

The first American military units arrived in October 2011. There is evidence that suggests that SP deserves some and perhaps considerable credit. After all, she has over the years been the main spokesperson arguing that NGOs who engage in activism and pressure their government are the main, if not the exclusive determinants, of foreign policy. This theme was echoed both in what she said and who she addressed in her first speech after she was named UN ambassador.

On 10 August 2013, SP addressed the Fourth Estate Leadership Summit in Los Angeles sponsored by Invisible Children (IC), the anti-Kony activist group credited by Obama. IC was started in 2004 by Bobby Bailey, Laren Poole and Jason Russell. Since then, IC has campaigned to stop the LRA warlord, Joseph Kony. Convinced (erroneously) that the world was unaware of the havoc of the LRA and Joseph Kony, they produced their first film, Invisible Children: Rough Cut. SP said, “Invisible Children doesn’t just lobby policymakers to go after the LRA, it designs fliers that tell LRA fighters how they might defect, and it distributes them – more than 400,000 so far – into LRA-affected areas in DRC and the Central African Republic…It has also built six locally-run FM radio stations in areas of high LRA activity. These stations now reach an audience covering more than 29,000 square miles.” For example, Radio Zereda (Zereda means peace in Zande) in Obo, broadcasts advice and information on UN camps and appeals by former abductees, such as Emmanuel Daba, to help those trying to flee the LRA.

If defections are way up and IC has had a significant responsibility for that result, and if SP has been a major champion of IC, then surely she deserves considerable credit for the diminution of the LRA threat. For IC’s effects went further. After all, the activism operates on two fronts – in the education of politicians in Washington and in the information spread in the field to undermine Joseph Kony. Further, there is a double effect in America for the media campaign in Africa reverberates back on the politics and policies in Washington.

In 2012, IC produced a video, Stop Kony, that went viral with more than 5 million views. It became the number one topic on Twitter, multiplied many times over by Facebook references. IC made a follow-up film, Beyond Kony, emphasizing post-conflict reconstruction. Yet, although the LRA was on its last legs, the objectives of IC remained, not only to publicize the evils about LRA, but also to pressure the U.S. government “To intervene militarily in Central Africa.” At the end of 2014, when IC announced that it was ending the bulk of its mass mobilization programs, it remained committed to the priority of political advocacy in America and its on-the-ground programs in Africa. When the poster child for grass roots political pressure, as both the necessary and sufficient cause of policy change, throws grass roots organizing out the window, the delusionary belief in its efficaciousness should be thrown out with it.

IC started making films about Joseph Kony and the abductees back in 2004. High school students in Massachusetts sent one of the films to their Senator. He and his colleagues then wrote a law directed at the LRA and modelled on the rewards offered for narco-traffickers. President Obama signed that anti-LRA bill in 2010 that created a rewards program to bring Kony and his thugs to justice. That Senator from Massachusetts was John Kerry who is now the Secretary of State. Based on that law, the State Department offered rewards of up to $5 million that lead to the arrest of LRA leaders.

In addition to its first 2004 film and famous 2012 film, Stop Kony, IC has produced many other films such as: Innocent: The Story of a Night (2005); Groce: The Story of a Child Mother (2006); and The Story of an Orphan (2006). Further, IC has won numerous awards over the years for its films:

  • 2007 Progressive Source Awards for best fundraising podcast
  • 2008 Human Security Award
  • 2008 People’s Voice Webby Award
  • 2008 American Advertisement Federation award
  • 2008 Summit Creative Award for its School for Schools and its Display Me websites
  • 2009 Interactive Media Award for The Rescue website
  • 2009 nominated for the Think Social Award
  • 2010 and 2011 Stay Classy Award for Most Effective Awareness
  • 2011 LRA Crisis Tracker for MediaPost Creative Media Filmography Award
  • 2013 Digital Campaign of the Year Award for Interactive Media

In an open letter IC sent to SP after she became ambassador to the UN concerning Joseph Kony, the following appeal was made:

Joseph Kony has been committing war crimes and crimes against humanity for nearly 30 years. And this month marks the nine year anniversary of his indictment by the International Criminal Court. But Kony still remains at large and the fact that he has, quite literally, gotten away with mass murder for this long is completely unacceptable. We know you agree.

We also know that for the last few years, Kony has regularly received safe haven in the Sudanese-controlled region of Kafia Kingi, but this area is largely out of the reach of African Union and U.S. forces that are pursuing him.

Most importantly, we know that you are among the few people who can do something about it. Ambassador Power, you, along with nine other U.S. and world leaders, have the unique power to help end Kony’s impunity and finally stop decades of LRA violence. We’re asking you to publicly reaffirm your commitment to bringing Kony to justice and stopping LRA violence.

More specifically, your commitment to stopping LRA violence must include the following actions during the upcoming U.S. Security Council Briefing on the LRA crisis:

Ask the new UN special envoy on the LRA, Mr. Abdoulaye Bathily, direct questions about what the UN is doing to prevent Kony from a) enjoying safe haven in the Sudanese-controlled Kafia Kingi enclave and b) poaching elephants in D.R. Congo.

–Ensure that the UN Security Council’s statement on the LRA in response to the briefing highlights deep concern about Kony’s safe haven and elephant poaching by the LRA, and clearly directs the UN to do more to address these issues.

Thank you for all that you’ve already done to help end LRA violence and arrest Joseph Kony. We’re so grateful for your committed leadership on this issue. With these additional actions, you can help us make sure the 10-year anniversary of Joseph Kony’s ICC indictment is a celebration of justice — not only for Kony, but also for the millions that have been affected by his crimes.

The letter clearly acknowledges SP’s past influence on and efforts on behalf of the campaign of IC to capture Joseph Kony and beseeches her to do more now that she is the American ambassador to the UN. SP clearly comes across as the go-to person in the Obama administration with respect to Joseph Kony, even though John Kerry, the Secretary of State, authored the bill that created the reward program for capturing Kony and his lieutenants. To what extent can SP claim and be awarded credit for the decline in the LRA?

Tomorrow: Samantha Power and the Diminution of the LRA

VII: Samantha Power: R2P Applied

VII: Samantha Power: R2P Applied

by

Howard Adelman

When Samantha was appointed to chair President Obama’s Atrocities Prevention Board set up to actually prevent mass atrocities and genocide as a core U.S. national security interest and foreign affairs responsibility, the cheerleaders for R2P jumped with joy, “At last,” they screamed, “Something will be done about preventing, or, at the very least, mitigating mass atrocities.” Indeed, Samantha Power credited the administration with “an unprecedented record of actions taken to protect civilians and hold perpetrators of atrocities accountable.” In reality, the false claim of credit and the inability to mitigate let alone prevent atrocities are two sides of the same coin.

What were these claimed unprecedented actions and accomplishments? And did they have anything to do with the doctrine of Responsibility to Protect (R2P)?

In the next series of blogs, I will take up a number of specific issues on which Samantha Power at one time or another claimed credit was due to the administration for “an unprecedented record of accomplishment”. I will see what if any connection there is to R2P and briefly deal with the claims made and whether any credit is warranted in a number of specific cases. Of necessity, I will have to be very brief and succinct on each crisis. Before undertaking the specific case study analysis, including Darfur, South Sudan, Côte d’Ivoire, Nigeria, Libya, Iraq, Iran, Syria and Myanmar, I want to raise a number of general faults with R2P and then offer two individual cases – of accountability rather than prevention or intervention as illustrations.

As I will try to show in the case studies, when R2P is actually applied to protect populations in peril, such as the Yazidis in Iraq, the motivation has little to do with protecting that very endangered population. And when protecting an actual population as the real aim, as in Libya, the course of events set in motion by the intervention seems to make the situation go awry leading seemingly to many more deaths and atrocities than might otherwise have been the case. When protection or mitigation actually seem possible and could be effective, as in repressing and even eliminating Boko Haram in Nigeria, the conditions for its application are undermined. All of this will emerge in the case study analysis. In this blog, I offer some theoretical reasons why R2P is inherently bankrupt and why this will always be the case. R2P was not only stillborn when the UN endorsed the doctrine universally by effectively gutting its core premise of making sovereignty conditional instead of absolute, but was sterile at its conceptual birth. The genetics of the doctrine doomed it to crashing.

If the dialectics of the analysis of the theory bothers or deters you, wait until you can read the case study analysis. Alternatively, you can skip this blog and go to a second I will write this morning, a brief review of the movie, The Foxcatcher, a movie that presents, but does not go into the mind of a sociopath who could commit mass atrocities.

Part of the problem with R2P is the difficulty of application – the greater the challenges in figuring how to apply the doctrine, the more worthless it appears to become. For its credit depends upon use, but without a proper line of credit, it turns out to be useless, hence contributing to its increasing loss of credibility. And the more it is not used, the more worthless it appears to be. However, these are but the manifestations of the root conceptual flaws in the doctrine. Let’s start with the central premise of the relationship between the sovereign state and its citizens.

In liberal democratic theory, the governors of a state are responsible for its citizenry and accountable to that citizenry for carrying out a state’s responsibilities. ‘Responsibility for’ and ‘accountability to’ are the two intertwined dialectical links between a population and its government. But in R2P, if a state fails in its prime responsibility of protecting its citizens, that responsibility function shifts to the international community which substitutes its own authority for that of the state. State authority is no longer absolute but conditional upon its exercise and removable with failure. The state is reduced to a trustee of the international community. And that international authority that takes over the responsibility for the citizenry is not responsible to that citizenry. So R2P only works if it undermines the principle of democracy. More importantly, when it does not work – which as I will show is the norm – then responsibility itself becomes emptied of any meaning, thereby even more fundamentally undermining the doctrine of responsibility for and to the people.

If we approach the conceptual issue, not from the nature of a democratic state, that is, the collectivity, but from the other pole of the equation in R2P, the rights of a citizen to protection, we get into another dilemma. Citizens not only have rights of free speech, rights of assembly and the other traditional rights necessary for the preservation and enhancement of a democratic polity, but they have a right not to be subject to mass atrocities. This is not just a right not to be tortured or a right to a fair trial or a right to legal representation. The latter are all rights that belong to the individual in a democratic polity. What we have in this case is a collective right, that is, a right of a community within a polity to continue its existence as a community; if the state denies that right by either trying to evict the community to which an individual belongs (ethnic cleansing) or goes even further and tries assiduously to exterminate that group in whole or in part (genocide), then the only way prevention or mitigation can be effected is by granting a group rights. Inherently, however, this puts limitations on individual rights rather than enhancing them.

If an individual has all of the liberal rights, why does he need to be recognized as a member of a group with collective rights? Where is the added value of the collective right to the individual qua individual? Further, one of the paradoxes at the root of the conception of the nation-state is that when a collection of individuals contract among themselves as individuals to transfer all coercive power to the state on condition that their rights are protected, those rights do not include group rights.

The compact between the individuals and the state goes further. The rights to determine who belongs to the state, that is, who can be its members, is transferred to the state. So if a state wants to abrogate the rights of a group, the only way to protect those rights is to insist they belong to every individual member of the state. But group rights only belong to a group and its members within the state, not to all members of the state itself. So if groups within a state are to have specific group rights – such as aboriginal peoples within Canada concerning the rights of a community to exclude non-aboriginal members or revoke the rights of individuals in that group when they marry non-aboriginals – then it is the group, not the state who defines who is a member of that group. If the state assumes responsibility for that decision – as was done in the Holocaust, in the Rwanda genocide and in some cases of aboriginal rights -, then the very idea of a self-perpetuating collectivity with rights within the state is undermined. The fact is, the issue of collective rights is the Achilles heel of a democratic liberal state. Insisting that a state cannot mistreat any of its minorities and, if it does, the collectivity of all states will take over the responsibility, means only that the irresponsibility only gets writ large and exposed for what it is.

So what has actually happened? The Obama regime has sincerely bought into the principle that the U.S. does have a responsibility when minorities are persecuted. And, unlike the United Nations, it is not just a rhetorical buy-in. As stated above, Obama issued a directive that “the prevention of mass atrocities and genocide is a core national security interest of the United States.” But then the most powerful state in the world showed that it could not possibly implement that responsibility – not only for all the minorities being afflicted with atrocities, but surprisingly, not one single one – except when the real and deep motivation is the old fashioned self-interest of the state.

So the issue is not even which group, among all those persecuted, a state should protect. Nor is the issue simply when to apply the doctrine of protection, let alone adopt the last resort of coercive intervention. The inherent incapacity of the most powerful state to protect any group outside its own jurisdiction based on R2P, which requires collective authorization via the United Nations before any action based on R2P is legitimized, undermines both the sovereignty of the state as well as the potency of that sovereignty. Does the endorsement by the UN authorizing military force help, as when the U.N. Security Council authorized military force to protect “civilians and civilian-populated areas” in Libya? R2P does offer permission to a state to act on behalf of the international community, which may provide temporary protection and which can prevent some murders from proceeding, but what happens next? Unless the intervening state or group of states is willing to assume full responsibility for those endangered citizens and not simply provide protection in an acute crisis, then the violence simply recurs in a different form.

Further, if a country decides to become involved, the intervener has to either take full control (unlikely) or to support one side in the struggle, presumably representing those persecuted. Then the persecuted are empowered to destroy their enemies – which inherently means the other side, the persecutors. They take control and sometimes even become the persecutors. Those states which have an interest against that group that have gained power become highly critical of the intervening state as behaving like an imperial power, not as a saviour of minorities. The intervener is no longer the representative of the world community, but only a section of it intent on victory. R2P just becomes a cover for an exercise in imperial power. At the same time, the intervener becomes a producer of victims as well as a protector of victims.

One result is that altruism is depreciated and devalued. Force in the service of altruism is an oxymoron. What is more, the altruism only seems to work when it is intermixed with the self-interest of the intervening state that drives the intervener to assume the full responsibility required to complete the task at hand. Of course, that only further undermines the moral status of R2P. Since the ostensible success, protecting civilians, is difficult to assess and measure, but the body counts, the civilians killed, those wounded as “collateral damage,” are quantifiable – the empirical evidence seems evident for all to see. The cure may be worse than the disease.

What is more, when a state assumes the responsibility for its members, for its citizens, this is an ongoing and continuing duty, not one that ever ends. But intervention inherently demands and requires an exit. Yet there never is an appropriate time to leave by the very nature of the problem. In reality, an intervener leaves when the government of the state within which the intervention takes place insists once again on assuming responsibility, thereby both undermining the R2P doctrine, which is based on the presumption that the will of an individual state is trumped by that of the international community.

Further, the resentment and internal discord within the intervening state are enhanced. A state assumes responsibility for its own citizens, not in gratitude for the “international” community acting as a temporary protector, but because the country has become tired and even resentful of the so-called protector. On the other side, the citizens of the intervener sooner rather than later grow tired of the burden and resentful in turn of the lack of appreciation of those who they sacrificed to protect. Alternatively, the situation gets worse, and the intervener is required to increase its commitment, the self-sacrifice of its citizens and the cost of its project, which in turn enhances the resentment of at least part of the citizenry of the intervening state and exacerbates the divisions and schisms within.

As we shall see, none of these paradoxes and dilemmas has even touched the problem that neither the strongest state in the world and certainly not the international community can possibly assume the responsibility for even a small portion of the atrocities taking place in various parts of the world. So the international community and the intervening state(s) come across as hypocrites incapable of living up to the promises they have ostensibly made.

One of the results of all these inherent failures is a propensity to boast about relatively tiny and insignificant accomplishments, even when one had hardly anything to do with responsibility for them. Before I begin the series of case study analyses, let me offer an example of one case that is neither about prevention nor intervention, but about accountability. The Obama administration supported the arrest of Ratko Mladić and Goran Hadžić and boasted about it. What did that support amount to?

Samantha claimed this credit among a long list justifying her successes as the chair of President Obama’s Atrocities Prevention Board set up in 2011. It is true that the R2P doctrine is not only about prevention, but also includes punishment of those guilty of crimes against humanity and genocide. But that is not what is novel about R2P. As President Obama said himself on 2 April 2013 upon learning of the arrest of the Butcher of Bosnia, Ratko Mladić: “Fifteen years ago, Ratko Mladić ordered the systematic execution of some 8,000 unarmed men and boys in Srebrenica. Today, he is behind bars. I applaud President Tadic and the Government of Serbia on their determined efforts to ensure that Mladić was found and that he faces justice. We look forward to his expeditious transfer to The Hague…From Nuremberg to the present, the United States has long viewed justice for war crimes, crimes against humanity, and genocide as both a moral imperative and an essential element of stability and peace. In Bosnia, the United States – our troops and our diplomats – led the international effort to end ethnic cleansing and bring a lasting peace. On this important day, we recommit ourselves to supporting ongoing reconciliation efforts in the Balkans and to working to prevent future atrocities. Those who have committed crimes against humanity and genocide will not escape judgment.”

That is a fair and judicious statement. Obama gave credit where credit was due for the arrest – to President Tadic and the Government of Serbia that first gradually asserted control over the Serbian military. The effort was helped both by EU pressure requiring the arrest of the wanted war criminals as a condition for the entry of Serbia into the EU and the British military and British politicians, particularly Paddy Ashdown when United Nations High Representative in Bosnia and Herzegovina in 2004. Obama did not link the arrest with R2P, but with a long American bipartisan tradition going back to the Nuremberg trials after WWII. He also gave credit to the Clinton administration for its leading role in the intervention in the former Yugoslavia and for forging the peace agreement. The only credit he gave his own administration was for a recommitment to supporting ongoing reconciliation efforts in the Balkans and his government’s work to prevent future atrocities. None of this had anything to do with the arrest of Ratko Mladić and Goran Hadžić.

Even the rewards offered for information leading to his arrest, initially €1 million by the Serbian government, upped in 2010 to €10 million, and $5 million dollars offered by the American government, subsequently supplemented by an offer of €1 million by the U.S. embassy in Belgrade just for information on his location, had nothing to do with those arrests. Initially Mladić was protected by the governments of Serbia and Republika Srpska, then after 2002 by the Serbian army and the army of Republika Srpska, then by paramilitary extremist organizations similar to the ones that helped Nazi war criminals escape Germany after WWII, and finally only by members of his own family. Neither strenuous UN and NATO efforts nor offers of bounties led to his arrest – just good police work and serendipity.

Goran Hadžić was the last fugitive war criminal wanted by the International Criminal Tribunal for the former Yugoslavia and he was arrested by Serbian police just over a month after Ratko Mladić near the village of Krušedol, where he had been hiding since his indictment by the ICTY. He had tried to sell a stolen Modigliani painting and police tracked him down. America had no more to do with this arrest than with the capture of Ratko Mladić. President Obama’s statement on Goran Hadžić’s arrest was in the same vein as the previous one, with one exception. “Over the course of its 18-year history, the United States has been and remains a steadfast supporter of the ICTY and its critically important work.” A smidgeon of credit was taken for supporting the ICTY. Was this what Samantha Power was declaring as an example of an “unprecedented action”?

My country may have been the sponsor and midwife of R2P. I continue to believe in military intervention – when possible and when needed. But the overarching doctrine supposedly providing a rationale for such actions is a far greater hindrance than help. It is much better to establish practices than to proceed from an abstract principle, especially one so terribly flawed.