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.

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

Part IV Genocide Denial – B: Conceptual and Historical Biases

Part IV Genocide Denial – B: Conceptual and Historical Biases

by

Howard Adelman

The BBC video is available at http://vimeo.com/107867605

 

The charge of genocide denial has been used to shut up critics by the Kagame regime. Well over 200 such critics have been jailed for terms of from 5-10 years to life imprisonment. Those charged included the leader of the opposition in Parliament. But the ferocity and murderous outreach of the Kagame regime cannot be used to distort what happened and feed the maws of waiting genocide deniers. At the very least, Stam and Davenport are guilty of this.

Dr, Andrew Wallis, author of Silent Accomplice: The Role of France in the Rwandan Genocide, has been the most devastating critic of the BBC documentary and of Stam and Davenport (S&D). S&D’s research “wasn’t used for another 10 years. No one would touch it and there are reasons for that. It’s not the people are covering up anything; it’s just that their research is full of holes. No scholar wants to associate themselves with work which is incompetent. I wouldn’t want to associate myself with such work, and indeed most scholars will not want to touch this research”. Is Wallis correct? If so, what are the implications?

The Conception of Genocide and Methodology

S&D wrote that, we adopt a position where the physical elimination of a group with a cohesive identity is the objective of the activity, and that the perpetrators of this behavior involve the state and/or its affiliates or agents.” Destruction of a culture is not included in this interpretation of the concept, only physical elimination – totally appropriate to this case because Tutsi and Hutu share the very same language and culture. For S&D, the motive can only be eliminating that group, not money, revenge, or pre-emption, a definition contrary to almost all genocide scholars who recognize that within a state-sanctioned genocide campaign, a complex of motives may be at work when individuals kill members of the targeted group. Further, in the S&D interpretation, the murder must be by the state, its employees and agents; killings by “volunteers” co-opted by militias to carry out the slaughter are excluded. Finally, a definitive determination of genocide requires not only premeditation, but a precise method of accomplishing the goals; but evidence for this, such as the contract to a French firm to excavate a very large hole with no apparent construction purpose, three weeks before the genocide broke out. That large excavation was soon used to throw in over 17,000 corpses of those killed at the technical school in Butare.

This very narrow definition of genocide a priori means that the majority of those killed could not have been eliminated by government forces or its agents since the government lacked the manpower to both fight the RPF and carry out such an extensive genocide. The discovery of lists of those targeted would provide definite proof, S&D suggest, but no lists have been found. Not having found lists of names of those targeted, there is no evidence of genocidal planning they conclude. In the Holocaust, the six million killed were not on a targeted list. As S&D have also written, Rwanda then was largely an oral society so how useful would a list have been to the many ordinary Rwandans co-opted or coerced into carrying out the killing.

A writer may refer to the genocide in Rwanda as a singular event, as the authors themselves sometimes do, though they disparage such usage, but, as they also make clear, this does not mean that a genocide cannot be parsed in both space and time and by different agents and groups of victims. Yet the authors give themselves special credit for breaking genocide down into component parts as if no one else has done this. Such an analytic conceit does not encourage adequate consultation of the works of other scholars and interferes with the quality of their research.

S&D did examine the literature to understand that autocratic in contrast to democratic regimes, especially those which keep close control over the population, in a context of domestic economic and political (both internal and external) crises, regime change and civil war, all enhance the possibility of genocide. However, at other times they will take self-evident truths as if they are amazing new foundations for research. Such propositions as,Causal effects of the accelerants and retardants will vary across the nation-state in question.” These are given a hefty weight of originality that is totally undeserved. More significantly, they say the killing in Rwanda is not akin to the Holocaust, but was more like the earthquake expected as a result of the San Andreas fault. The entire team, of which Astri and I were a part, proved the opposite – the genocide was a planned event and not at all akin to a natural phenomenon like an earthquake. S&D never consult this literature or even cite it in their bibliography.

The primary interest of S&D was never in genocide per se; their focus was on violent conflict of all kinds. If the genocide is viewed in the usual way, then the violence of other kinds becomes marginal, ill-suited to their larger academic agenda. This means that they will even include researchers of violent conflict using statistical analysis covering even forced displacement, such as my former post-doc student, Susanne Schmeidl. Her work was used as a reference for comparative genocide, which she has never done or professed to do. (Their reference is: Schmeidl, Susanne (1997) “Exploring the Causes of Forced Migration: A Pooled Analysis, 1971-1990.” Social Science Quarterly 78: 284-308.) This means that they have an academic interest in expanding those killed by other forms of coercion and violence and minimizing the numbers killed because of genocidal intent.

Scholarship focused on statistical and comparative studies of genocide and violence in general can be very valuable. But when it demonstrates only the most superficial acquaintance with substantive historical and anthropological in-depth analyses and specific policy studies, then quantitative studies can develop serious blinkers to its own false premises given the love affair with its process of data gathering and analysis.

S&D are admirers of the work of Helen Fein on genocide. Whatever quarrels top scholars of the Holocaust, especially noted historians like Michael Marrus, have had with Helen Fein’s quantitative methods, she did provide a model for dis-aggregating motives and factors conducive to enhancing genocide. However, she never set as her task minimizing the number of genocidal killings in the Holocaust as the definition adopted by S&D does.

Finally, Kagame may use all kinds of rituals, ceremonies, halls of remembrance and publicity about the genocide to solidify his rule, intimidate and even assassinate his critics, but hyping genocide for political purposes does not mean the actual genocide should be minimized and trivialized by critics.

Historical Background

Let us then turn to the evidence S&D offer, misrepresent and ignore, beginning with their sketch of the history of Rwanda. Neither is a historian. Yet, with a very few exceptions, Stam manages to offer a succinct and reasonably accurate history of Rwanda – at least until he gets to the late nineteen eighties when he discusses the economic pressures that the West placed on President Habyarimana in 1988, with the implication that this was done in concert with Paul Kagame to weaken the regime. After that, the errors and omissions begin to pile up like the bodies of murdered Rwandans.

  • When the Tutsi elite fled Rwanda after the assumption of power of the Hutu in 1959, then again in 1962, and thousands were killed, it was not simply because the Tutsi did not want to live under Hutu rule; though not a genocide, Hutu were killing the former ruling Tutsi to eliminate their rivalry and to prevent their return by force
  • Although, after his coup in 1973, Habyarimana ran a reasonably honest government with relatively modest allocations to the military compared to other African states, Rwanda in 1988 was in an economic bind with state expenditures far in excess of income because coffee (the main export crop of Rwanda) as well as tin prices had collapsed
  • The IMF (International Monetary Fund) put pressure on Habyarimana to cut government expenditures
  • The motives for this were purely economic, though some interpret the implementation of the policies recommended by the Chicago School of monetarists to be simply a vehicle for enhancing American economic imperial control
  • There is no evidence whatsoever of Kagame or other members of the Rwandan Tutsi exile community, having any direct influence over these international decisions, or on the West’s pressure for Rwanda to move to a multi-party system of government more akin to a democracy
  • Kagame, like other Tutsi exiles then living in Uganda, helped Yoweri Museveni in his overthrow of Obote; Kagame did become head of Ugandan intelligence; however, Tutsi in Uganda only decided to return to Rwanda when the efforts of Museveni to persuade his Parliament to grant the Tutsi citizenship in Uganda failed – a critical piece of history again omitted in the S&D account
  • President Habyarimana, though he had a deserved reputation of treating the Tutsi in Rwanda much better than his predecessor after he obtained power in a coup in 1973, would not permit the Tutsi stateless exiles to return to Rwanda, a very important fact in understanding the adoption of coercion by the RPF, a fact omitted in Stam’s sketch
  • In the S&D potted review of Rwandan history, they claim they naively initially accepted the belief that the Rwandan government under Juvenal Habyarimana was said to have the obje)ctive of eradicating the Tutsi. No reputable scholar that I know of made such an assertion. Quite the contrary. Most scholars claimed that when Habyarimana first came to power in a coup in 1973, he protected Tutsi. Further, though he denied the Tutsi in exile a right to return to Rwanda, even when the invasion took place, his political policies were in tension with those of his wife and other members of the extremist Akazu faction in the MRND. Habyarimana himself was rarely accused of having genocidal intentions, though he was often accused of catering to the extremists
  • S&D omit the fact that Paul Kagame received his first military training abroad when, in 1986, he went for nine months to Cuba where his propensity for puritanism was reinforced and where he learned a great deal about what Mao Zedong (Mao Tse Tung) called “mass lining”, the method used to co-opt a population through the use of media and public ceremonials
  • Kagame, along with three other Tutsi Rwandan military leaders from Uganda, formed the Tutsi-led Rwandan Patriot Front (RPF) and adopted the option of returning by force
  • Just after he was married to his wife Jeanette, a marriage attended by Roger Winter, then Executive Director of the U.S. Committee on Refugees, Paul Kagame disagreed on the timing of the invasion (in one version of his personal history); he went into self-exile in the USA and enrolled, with the help of Museveni, in the Joint American-Ugandan Combined Exchange Training Program to study at the U.S. Army Command and General Staff College at Fort Leavenworth in Kansas; there is no evidence that the US selected Kagame for training because he was identified as a future African leader
  • Paul and Jeanette Kagame had only been in Fort Leavenworth a relatively short time when the RPF invaded Rwanda on 1 October 1990 with a military force estimated to have been 5,000 under the leadership of Kagame’s colleague, Fred Rwigyema, who had been Deputy Minister of Defence in the Ugandan government; when the invasion was stopped in its tracks by Habyarimana’s FAR with the help of the French and the backup of Belgian forces, Rwigyema and another co-leader who formed the RPF, were both killed; Stam is simply wrong when he says that Kagame led the invasion of Rwanda
  • What was the motivation for the invasion? According to S&D, “(I)f there was no political violence before the international invasion, then how should we frame what takes place after 1989?  Were the Tutsi in the country somehow communicating that life for them was unlivable and the RPF were simply responding to this call?” Why that speculative question? There is a general scholarly consensus that, relative to his predecessor, Habyarimana did not persecute Tutsi. Further, the RPF was not primarily motivated to invade Rwanda because of how Habyarimana was treating Tutsi citizens of Rwanda, but because:b) they did not want to remain stateless;
  • c) they could not prevail upon Habyarimana – especially given the extremists in his party – to permit their return
  • a) they could not get citizenship elsewhere, even in Uganda where they had served Museveni loyally;
  • There is an inconsistency in the writings of S&D for they sometimes refer to the war in Rwanda from 1990 to 1994 as a civil war and at other times as an interstate war; the latter is the general position of genocide deniers who view the RPF as an extension of American imperialism and, on the regional level, of Ugandan imperialism
  • S&D do characterize the 1990 invasion of Rwanda as akin to the American-led invasion of Iraq in 1991 though, other than the term invasion, there is no parallel to exiles using force to win a right of return and an American-led attack on Saddam Hussein’s fictional nuclear program, unless, of course, one wants to allude to a common possible imperial conspiracy at work
  • Kagame was then called back to Africa to take over leadership of the RPF and he led the remnant of 2,000 rebels to the Virunga mountains and rebuilt the RPF by 1991 to its original strength; in 1992, the RPF numbered 12,000, in 1993 at the time of the Arusha Accords in August, 20,000, and by April 1994 when the civil war resumed, Kagame commanded a force estimated at 25,000 (not 50,000 as Stam contends) in opposition to the FAR that had grown from 7,000 to 30,000 but was better equipped than the RPF
  • Kagame and the RPF were accused of killing Rwandan Hutu civilians – from 25,000 to 100,000 – in the territories they conquered between 1991 and 1993, but Stam leaves out the fact that, though the RPF was led and manned by a large majority of Tutsi, it also consisted of Hutu opposed to Habyarimana’s rule, including the president of the RPF, Alexis Kanyarengwe, a former ally of Habyarimana
  • Roger Winter, who had a stellar reputation for integrity and honesty, when he was in Rwanda, was asked to investigate stories of RPF atrocities; he visited the north and reported back that he found no evidence of RPF atrocities, and, given the puritanism and discipline Kagame instilled in his forces, the likelihood of rogue RPF soldiers undertaking killings on their own seems minimal
  • According to S&D, U.S. and U.K. governments were guilty of inaction in Rwanda when a military intervention to protect the Tutsi was in order.  That inaction was the result of actively standing by Kagame, shielding his 1990 aggression from international action, vastly expanding his RPF into the armed force that overthrew the Habyarimana government and conquered the Rwandan state, and preventing the ICTR from bringing any indictments against Kagame’s RPF, even getting ICTR chief prosecutor Carla Del Ponte in 2003 fired as a “Special Investigator”; no evidence is provided to support any of these implicit or explicit allegations
  • When the RPF was in control of the north of the country, were there revenge killings? Was there killing of captured FAR troops? Were there killings of Hutu leaders in the north? I do not know, but other than the rumours of RPF atrocities, allegedly traced back to the UNHCR, which refused to confirm or deny the rumours, rumours that induced hundreds of thousands of Hutu to flee the northern captured territories, I have not seen any hard evidence of massive atrocities committed by the RPF; there certainly could have been, even though such atrocities would be totally inconsistent with the military doctrine Kagame instilled in his forces to concentrate only on fighting the FAR, a policy that would later mean, as S&D correctly point out, that Kagame never diverted his forces to save Tutsi citizens of Rwanda when he was driving the FAR and the Interahamwe out of the country in 1994
  • Though the BBC documentary makes clear that the director and producer endorse blaming Kagame for the downing of Habyarimana’s plane on 6 April 1994 that triggered the coup and the genocide, S&D, as far as I could find out, do not take a position on this issue and do not disparage standard accounts of assigning responsibility for this incident to Hutu extremists who faced a loss of power and privileges when Habyarimana finally agreed to implement the Arusha Peace Accords
  • For S&D, the government of Habyarimana could not have been guilty of planning the assassination of the Tutsi without the Tutsi members of the government knowing about it, but, in fact, that government never did plan the extermination of the Tutsi; it was the extremist leaders of the coup that did
  • S&D claim that Bill Clinton had to have known about the genocide within six days of the massive genocide breaking out on 6 April 1994, whereas our research found that although he could and should have known, we found no evidence that he did know

Does such a conceptual narrow presumption and so many egregious historical errors constitute genocide denial?

Tomorrow: An examination of the statistical evidence.