Recently, the Special Tribunal for Lebanon began operating, by swearing in judges and establishing a first set of procedures. This tribunal is the latest in the recent trend in the international criminal community toward establishing hybrid tribunals on an ad hoc basis, to deal with particular situations, regions and issues. In fact, other such hybrid tribunals include the Special Court for Sierra Leone, the Iraqi Special Tribunal, and the Extra-Ordinary Chambers in the Courts of Cambodia. While each of these tribunals has special characteristics and a different degree of domestic v. international features, all of them reflect a consensus between the international community and the host country (Lebanon, Sierra Leone, Iraq, and Cambodia) that something ought to be done about particular crimes in the host crimes.
The Special Tribunal for Lebanon was established pursuant to an agreement between the United Nations and Lebanon, negotiated in 2006, and solidified through several Security Council resolutions (in fact, it had been the government of Lebanon that wrote to the United Nations, requesting the establishment of the special tribunal - a situation exactly alike to the one in Sierra Leone). The Lebanese tribunal has jurisdiction to investigate, and prosecute those responsible for, the attack of Feb. 14, 2005, in which former Prime Minister Rafiq Hariri was killed, and several other individuals were killed or injured. The tribunal can also investigate other acts if it finds that they are linked to the Hariri assassination. The tribunal, while directed to apply Lebanese criminal law, is of an international character because some of its judges and its prosecutor are "international" (some judges hail from Lebanon). Moreover, the tribunal's seat is in the Netherlands, not in Lebanon, a fact which adds to the international character of this institution. Like the Special Court for Sierra Leone, the Special Tribunal for Lebanon is composed of four offices: the Registry, the Prosecution, the Defense, and the Chambers (to read more about the tribunal, click here: http://www.un.org/apps/news/infocus/lebanon/tribunal/factsheet.shtml).
There are many arguments as to why establishing hybrid tribunals versus purely international ones is a good thing. Hybrid tribunals implicate the host country, if they are located in the host country, they help rebuild its judiciary, institutions, and domestic criminal law, they provide a sense of domestic justice and closure to the victims, can bring about national reconciliation, and can send a stronger message of deterrence domestically. On the other hand, ad hoc hybrid tribunals undermine the International Criminal Court ("ICC"), in instances where the situation could be investigated by the ICC because it fits its jurisdictional mandate. De facto, the United States, a main opponent of the ICC, has been a staunch supporter of ad hoc hybrid tribunals, possibly due to an implicit American policy of thwarting the ICC and sending cases elsewhere. It will be interesting to note whether more ad hoc hybrid tribunals are established during the Obama Administration reign, as our new president seems to have a more supportive stance toward the ICC and may prefer for cases to be prosecuted there. For now, however, the international community welcomes its newest hybrid member, the Special Tribunal for Lebanon.
Thursday, April 30, 2009
Monday, April 20, 2009
Piracy in Somalia: Why It is Dangerous
The Somali pirates are dangerous.
They are sea-terrorists, operating on a supra-national level: beyond the reach of any laws, in the name of no particular state, and against no specific nations. They enjoy complete impunity – most of the time, they are simply chased off, and if captured, they are often released. It would be unimaginable for the United States to capture an Al Qaeda operative, or a member of any other terrorist group, in order to then promptly release him, not wanting to bother with the cost and difficulty of a criminal prosecution. Yet, this is precisely what some countries, like Great Britain and France, have done with respect to captured pirates. They have let them go. And the United States has, wrongly, not said a word about it. The global laissez-faire attitude toward the Somali pirates needs to change, and the United States’ passivity toward these sea-terrorists has to come to an end.
World powers like the United States should be willing to take on the Somali pirates for several reasons. First, the legal tools needed to capture and prosecute these pirates already are in place. The United Nations Security Council has facilitated the fight against Somali piracy, for countries willing to engage in such a fight, by passing five different resolutions during 2008. These resolutions authorize nations patrolling waters in the Indian Ocean off the Somali coast to cross into the 12-nautical-mile zone of Somali territorial waters if self-defending or pursuing pirates. Thus, countries willing to fight the Somali pirates have the Security Council’s green light to apprehend and capture them, be it on the so-called high seas, or anywhere within the Somali territorial waters. Moreover, a combination of two different international conventions regulating the law of the seas arguably provides jurisdiction to try pirates to either the capturing nation, or to any third nation where the pirates have been rendered for prosecution. Countries like the United States and Great Britain have even signed a memorandum of understanding with a regional partner, Kenya, whereby Kenya would try any pirates captured by the two great powers. Thus, world powers like the United States legally may apprehend and try Somali pirates; it is time that they actually do so. Second, pirates are sea-terrorists and may be or become linked to other terrorist groups. For now, we do not know whether the proceeds of piracy are financing other forms of terrorism. However, it is reasonably likely that the Somali pirates will be befriended by groups like the Taliban or Al Qaeda, for whom pirates can easily steal money and weapons. Furthermore, the Somali pirates, if linked to a terrorist group, may attempt to use the hostages that they are already holding (about 300 as of today) as political leverage against all sorts of unreasonable and politically dangerous demands. This type of hostage use is not novel – some may remember that back in the 1980’s, a faction of the Palestinian Liberation Organization hijacked an Italian cruise ship, the Achille Lauro, and refused to release the kidnapped hostages unless Israel released a group of Palestinian prisoners. The United States has been lucky until now: only one American ship was successfully hijacked by the Somali pirates, and after a three-day long stand-off in the Indian Ocean, all American hostages were safely rescued. In the future, the United States may not remain as fortuitous. The Somali pirates have already pledged that they would go after more American ships, and in the recent days, they have certainly done so (albeit, with no success). Thus, the threat of piracy linked to traditional forms of terrorism looms large for countries like the United States, which may become particular targets. Finally, not fighting the Somali piracy signals a message of passivity and carelessness to all sorts of potentially dangerous individuals and groups across the globe, looking to engage in similar types of criminal behavior. If the United States, or Great Britain, or France, is not willing to fight pirates in Somalia, then the Nigerian or Indonesian pirates may become just as brash in their efforts to seize ships, steal money and capture hostages. Then, piracy would become a global issue, as it once was in the 16th and 17th centuries. This is a dangerous proposal that should be cut at its roots.
The United States cannot do it all: it cannot fight wars in Afghanistan and Iraq, worry about Iran and North Korea, and negotiate between Israel and its hostile neighbors. It must prioritize its military and diplomatic efforts and give more importance to certain issues and certain geographic areas at particular times. Now is the time to focus on Somalia and its pirates. If the United States seriously began to capture them, prosecute them, and hand out stiff sentences, maybe other nations would follow and maybe the not-yet captured Somali pirates would begin looking for other (legal) lucrative activities.
They are sea-terrorists, operating on a supra-national level: beyond the reach of any laws, in the name of no particular state, and against no specific nations. They enjoy complete impunity – most of the time, they are simply chased off, and if captured, they are often released. It would be unimaginable for the United States to capture an Al Qaeda operative, or a member of any other terrorist group, in order to then promptly release him, not wanting to bother with the cost and difficulty of a criminal prosecution. Yet, this is precisely what some countries, like Great Britain and France, have done with respect to captured pirates. They have let them go. And the United States has, wrongly, not said a word about it. The global laissez-faire attitude toward the Somali pirates needs to change, and the United States’ passivity toward these sea-terrorists has to come to an end.
World powers like the United States should be willing to take on the Somali pirates for several reasons. First, the legal tools needed to capture and prosecute these pirates already are in place. The United Nations Security Council has facilitated the fight against Somali piracy, for countries willing to engage in such a fight, by passing five different resolutions during 2008. These resolutions authorize nations patrolling waters in the Indian Ocean off the Somali coast to cross into the 12-nautical-mile zone of Somali territorial waters if self-defending or pursuing pirates. Thus, countries willing to fight the Somali pirates have the Security Council’s green light to apprehend and capture them, be it on the so-called high seas, or anywhere within the Somali territorial waters. Moreover, a combination of two different international conventions regulating the law of the seas arguably provides jurisdiction to try pirates to either the capturing nation, or to any third nation where the pirates have been rendered for prosecution. Countries like the United States and Great Britain have even signed a memorandum of understanding with a regional partner, Kenya, whereby Kenya would try any pirates captured by the two great powers. Thus, world powers like the United States legally may apprehend and try Somali pirates; it is time that they actually do so. Second, pirates are sea-terrorists and may be or become linked to other terrorist groups. For now, we do not know whether the proceeds of piracy are financing other forms of terrorism. However, it is reasonably likely that the Somali pirates will be befriended by groups like the Taliban or Al Qaeda, for whom pirates can easily steal money and weapons. Furthermore, the Somali pirates, if linked to a terrorist group, may attempt to use the hostages that they are already holding (about 300 as of today) as political leverage against all sorts of unreasonable and politically dangerous demands. This type of hostage use is not novel – some may remember that back in the 1980’s, a faction of the Palestinian Liberation Organization hijacked an Italian cruise ship, the Achille Lauro, and refused to release the kidnapped hostages unless Israel released a group of Palestinian prisoners. The United States has been lucky until now: only one American ship was successfully hijacked by the Somali pirates, and after a three-day long stand-off in the Indian Ocean, all American hostages were safely rescued. In the future, the United States may not remain as fortuitous. The Somali pirates have already pledged that they would go after more American ships, and in the recent days, they have certainly done so (albeit, with no success). Thus, the threat of piracy linked to traditional forms of terrorism looms large for countries like the United States, which may become particular targets. Finally, not fighting the Somali piracy signals a message of passivity and carelessness to all sorts of potentially dangerous individuals and groups across the globe, looking to engage in similar types of criminal behavior. If the United States, or Great Britain, or France, is not willing to fight pirates in Somalia, then the Nigerian or Indonesian pirates may become just as brash in their efforts to seize ships, steal money and capture hostages. Then, piracy would become a global issue, as it once was in the 16th and 17th centuries. This is a dangerous proposal that should be cut at its roots.
The United States cannot do it all: it cannot fight wars in Afghanistan and Iraq, worry about Iran and North Korea, and negotiate between Israel and its hostile neighbors. It must prioritize its military and diplomatic efforts and give more importance to certain issues and certain geographic areas at particular times. Now is the time to focus on Somalia and its pirates. If the United States seriously began to capture them, prosecute them, and hand out stiff sentences, maybe other nations would follow and maybe the not-yet captured Somali pirates would begin looking for other (legal) lucrative activities.
Tuesday, April 7, 2009
Former Peruvian President Guilty of Human Rights Abuses
The Peruvian Supreme Court decided on April 7, 2009, that the country's former president, Alberto Fujimori, was guilty of human rights violations, and sentenced him to 25 years in prison (click here to read the story: http://www.cnn.com/2009/WORLD/americas/04/07/fujimori.peru.verdict/index.html). Fujimori, who ruled Peru from 1990 to 2000, has been imprisoned in Peru since 2006, and was already serving a six-year sentence on unrelated charges, involving abuse of power. Interestingly, a significant number of Peruvians still support Fujimori, who is largely credited with aggressive business and economic policies in the early 1990's that stirred Peru away from financial catastrophe. In fact, Fujimori was democratically elected as president of Peru three times (although his last election was critiqued as irregular and plagued with corruption allegations). Supporters of Fujimori, including his daughter, Keiko Fujimori, who is herself running in the 2011 presidential election in Peru, claim that his sentence stands for revenge and hate of the former president. His opponents, however, point to deaths and disappearances of numerous individuals in the 1990's, when Fujimori was fighting a Maoist insurgency in Peru, called the "Shining Path." Fujimori was accused (and convicted) of authorizing paramilitary death squads to operate against the insurgents during Peru's "dirty war" in 1991 and 1992. Fujimori himself has admitted that he had to "govern from hell, not a palace." When his regime crumbled in 2000, Fujimori fled Peru and exiled himself in Japan (he holds Japanese citizenship as well as he was born to Japanese immigrants in Peru), and then infamously faxed his resignation as president to Peru. Peru attempted to persuade Japan to extradite Fujimori to stand trial in his home country, but Japan remained unresponsive to the extradition request. Ultimately, it was Fujimori himself who sealed his fate when he decided to run in Peruvian presidential elections again in 2006. That year, he traveled to Chile where he was arrested and then extradited to Peru. He has been imprisoned ever since, and it is likely that he will die in jail, in light of his age (70) and his 25-year sentence.
Human rights groups and NGO's hailed Fujimori's sentence as unprecedented and extremely significant in the crusade of human rights protection. Fujimori is the first Latin American former head of state to be formally convicted of human rights violations, although many other countries in this region have experienced dirty wars of their own (El Salvador, Argentina, Paraguay, Chile, etc.). In 1998, a Spanish magistrate, Baltasar Garzon, attempted to indict and prosecute Augusto Pinochet, the former Chilean dictator. These efforts however proved unsuccessful as Pinochet was never extradited to Spain. Pinochet has been on various forms of house arrest in Chile, but he had never been tried or formally convicted anywhere else at the time of his death in 2006 (although there were numerous charges pending against him in Chile: click here to read the story: http://en.wikipedia.org/wiki/Pinochet). Thus, the fact that Fujimori, a former president, has now been convicted, appears of paramount importance to human rights advocates. This type of conviction of a former head of state signals to the world community that no one is indefinitely immune from prosecution for gross violations of human rights law. Even presidents can one day stand trial if they condone such atrocities. One can only hope that the Fujimori precedent stands and that it serves as a basis for future prosecutions of rogue leaders.
Human rights groups and NGO's hailed Fujimori's sentence as unprecedented and extremely significant in the crusade of human rights protection. Fujimori is the first Latin American former head of state to be formally convicted of human rights violations, although many other countries in this region have experienced dirty wars of their own (El Salvador, Argentina, Paraguay, Chile, etc.). In 1998, a Spanish magistrate, Baltasar Garzon, attempted to indict and prosecute Augusto Pinochet, the former Chilean dictator. These efforts however proved unsuccessful as Pinochet was never extradited to Spain. Pinochet has been on various forms of house arrest in Chile, but he had never been tried or formally convicted anywhere else at the time of his death in 2006 (although there were numerous charges pending against him in Chile: click here to read the story: http://en.wikipedia.org/wiki/Pinochet). Thus, the fact that Fujimori, a former president, has now been convicted, appears of paramount importance to human rights advocates. This type of conviction of a former head of state signals to the world community that no one is indefinitely immune from prosecution for gross violations of human rights law. Even presidents can one day stand trial if they condone such atrocities. One can only hope that the Fujimori precedent stands and that it serves as a basis for future prosecutions of rogue leaders.
Sunday, March 29, 2009
Spanish Magistrate Launches Investigation Into Top U.S. Officials
The most famous Spanish investigative magistrate, Baltasar Garzon, launched an investigation into whether top Bush aides and lawyers should be charged (and prosecuted!) with war crimes over allegation of mistreatment of the Guantanamo detainees (click here to read the story: http://www.cnn.com/2009/WORLD/europe/03/29/gonzales.spain.gitmo/index.htm). Judge Garzon had already investigated Augusto Pinochet in the late 1990's, as well as other human rights abuses in former military regimes in Chile and Argentina; now he has turned his attention to the United States. In fact, judge Garzon just turned the criminal complaint against six U.S. officials - all of them high-level lawyers and executives within the Justice and Defense Departments under the Bush Administration - to prosecutors, who will decide within five days whether these individuals should be charged with war crimes and subjected to prosecution in Spain. The six officials include Alberto Gonzales, John C. Yoo, Douglas J. Feith, William J. Hayes II, Jay S. Bybee and David S. Addington.
This type of criminal prosecution is rare, but not altogether unprecedented in international law. The six individuals named above would be charged with war crimes - a well-defined crime under international, and most domestic laws. Many individuals have already been prosecuted for war crimes in other international tribunals, such as the ICTR, the ICTY, the Special Court for Sierra Leone, and most recently, the Cambodian Court (ECCC). Many individuals have already been prosecuted in domestic courts for war crimes, in the wake of either world wars or regime changes and transitions to democracy. Moreover, jurisdiction over defendants accused of war crimes can be, theoretically, easily justified in international law. So-called universal jurisdiction exists over war crimes, implying that any state can prosecute individuals accused of war crimes, even if the prosecuting state has no connection or nexus to the crime itself, to the victims or to the defendant. Furthermore, the so-called passive personality principle of jurisdiction would justify the Spanish exercise of jurisdiction over the above-named U.S. defendants, because this type of jurisdiction grants the state whose nationals the victims of the alleged crimes were the power to try defendants. In this case, some of the Guantanamo detainees were Spanish nationals; thus, under the passive personality principle, Spain would have the power to try the U.S. individuals accused of planning and installing the questionable regime applied at Guantanamo to the detainees.
As a policy and diplomacy matter, whether Spain should prosecute these individuals is a different issue. Some of the six individuals have already testified before the U.S. Congress over their alleged involvement in the mistreatment of Guantanamo detainees, and the issue of whether these individuals should be held accountable domestically (in the U.S.) is already being debated. Arguably, if some accountability mechanism is installed in the U.S., then Spain would have no business meddling into these allegations, at least from a policy and diplomacy perspective (as explained above, from a legal point of view, Spain does have the right and power to investigate and prosecute these individuals). If the U.S. decides not to hold any of these individuals accountable in any manner, then arguably Spain has more interests and incentives to investigate them. Whether its government will decide to pursue the investigation is doubtful - the German main prosecutor declined to investigate Donald Rumsfeld in 2004 over allegations of mistreatment of prisoners in the Abu Graib prison in Iraq, citing policy concerns. After all, the U.S. is an important potential ally and no country wants to alienate the American government.
I strongly believe that some kind of accountability is needed for the mistreatments that took place at Guantanamo, and I believe that some of the above-named individuals should be personally subjected to investigation and required to take responsibility. Preferably, this should take place within the U.S.; if it does not, then the only "punishment" these individuals will face is the fact that they will never again be able to vacation in Spain (or other European countries if they decide to agree with the Spanish decision to investigate), where they could potentially be arrested and prosecuted for war crimes. However inconvenient this may be for Bybee, Yoo, or others, I do not believe that it constitutes enough punishment for the serious mistreatments that took place at Guantanamo.
This type of criminal prosecution is rare, but not altogether unprecedented in international law. The six individuals named above would be charged with war crimes - a well-defined crime under international, and most domestic laws. Many individuals have already been prosecuted for war crimes in other international tribunals, such as the ICTR, the ICTY, the Special Court for Sierra Leone, and most recently, the Cambodian Court (ECCC). Many individuals have already been prosecuted in domestic courts for war crimes, in the wake of either world wars or regime changes and transitions to democracy. Moreover, jurisdiction over defendants accused of war crimes can be, theoretically, easily justified in international law. So-called universal jurisdiction exists over war crimes, implying that any state can prosecute individuals accused of war crimes, even if the prosecuting state has no connection or nexus to the crime itself, to the victims or to the defendant. Furthermore, the so-called passive personality principle of jurisdiction would justify the Spanish exercise of jurisdiction over the above-named U.S. defendants, because this type of jurisdiction grants the state whose nationals the victims of the alleged crimes were the power to try defendants. In this case, some of the Guantanamo detainees were Spanish nationals; thus, under the passive personality principle, Spain would have the power to try the U.S. individuals accused of planning and installing the questionable regime applied at Guantanamo to the detainees.
As a policy and diplomacy matter, whether Spain should prosecute these individuals is a different issue. Some of the six individuals have already testified before the U.S. Congress over their alleged involvement in the mistreatment of Guantanamo detainees, and the issue of whether these individuals should be held accountable domestically (in the U.S.) is already being debated. Arguably, if some accountability mechanism is installed in the U.S., then Spain would have no business meddling into these allegations, at least from a policy and diplomacy perspective (as explained above, from a legal point of view, Spain does have the right and power to investigate and prosecute these individuals). If the U.S. decides not to hold any of these individuals accountable in any manner, then arguably Spain has more interests and incentives to investigate them. Whether its government will decide to pursue the investigation is doubtful - the German main prosecutor declined to investigate Donald Rumsfeld in 2004 over allegations of mistreatment of prisoners in the Abu Graib prison in Iraq, citing policy concerns. After all, the U.S. is an important potential ally and no country wants to alienate the American government.
I strongly believe that some kind of accountability is needed for the mistreatments that took place at Guantanamo, and I believe that some of the above-named individuals should be personally subjected to investigation and required to take responsibility. Preferably, this should take place within the U.S.; if it does not, then the only "punishment" these individuals will face is the fact that they will never again be able to vacation in Spain (or other European countries if they decide to agree with the Spanish decision to investigate), where they could potentially be arrested and prosecuted for war crimes. However inconvenient this may be for Bybee, Yoo, or others, I do not believe that it constitutes enough punishment for the serious mistreatments that took place at Guantanamo.
Monday, March 23, 2009
Kashmir Secessionism Produces More Violence
A total of 19 people have been killed in the recent weeks in Kashmir, where a bloody secessionist struggle has been taking place for the last two decades, and where violence just re-erupted between the Indian forces administering this region, and the secessionist militias (click here to read the article: http://www.cnn.com/2009/WORLD/asiapcf/03/23/kashmir.fighting/index.html). Kashmir, once a beautiful mountainous area tucked between India and Pakistan and known for its natural beauty, has become an epitome of violent secession ism sparked by intense rivalry between two potent nations (India and Pakistan). Both India and Pakistan assert territorial claims to Kashmir, and India currently administers a large portion of Kashmir. The Kashmirs people view themselves as independent and distinct from both India and Pakistan.
Historically, the Kashmirs lived peacefully and quietly, as eloquently described by Salman Rushdie in his recent novel, "Shalimar the Clown." However, in the recent decades, Kashmir fell prey to Pakistani and other Muslim extremist militias, which sought to restore strict Islamic law in this region, and to gain strategic and military advantages from installing troops and training camps in such a remote region, from which they could easily launch attacks and hide from possible retaliation and capture. This in turn provoked a violent reaction from the Indian government, which sent troops into Kashmir in order to reassert its own reign over this region. The Kashmirs thus found themselves in the midst of a power struggle between Pakistan and India, unable to fend for themselves and to isolate themselves from military, political and social influences exerted on them by these two countries. The Kashmirs would probably like to secede from both India and Pakistan; yet, they are stuck in no-man's land, as a tug-of-war continues for control over Kashmir by its powerful neighbors.
Kashmir has become another unfortunate example of an underdeveloped yet peaceful region that has turned into fertile ground for a power struggle between world powers. The victims are the Kashmirs people themselves, but unfortunately for them, violence may continue to plague them for a long time, or at least until India and Pakistan are able to come to a political and military truce.
Historically, the Kashmirs lived peacefully and quietly, as eloquently described by Salman Rushdie in his recent novel, "Shalimar the Clown." However, in the recent decades, Kashmir fell prey to Pakistani and other Muslim extremist militias, which sought to restore strict Islamic law in this region, and to gain strategic and military advantages from installing troops and training camps in such a remote region, from which they could easily launch attacks and hide from possible retaliation and capture. This in turn provoked a violent reaction from the Indian government, which sent troops into Kashmir in order to reassert its own reign over this region. The Kashmirs thus found themselves in the midst of a power struggle between Pakistan and India, unable to fend for themselves and to isolate themselves from military, political and social influences exerted on them by these two countries. The Kashmirs would probably like to secede from both India and Pakistan; yet, they are stuck in no-man's land, as a tug-of-war continues for control over Kashmir by its powerful neighbors.
Kashmir has become another unfortunate example of an underdeveloped yet peaceful region that has turned into fertile ground for a power struggle between world powers. The victims are the Kashmirs people themselves, but unfortunately for them, violence may continue to plague them for a long time, or at least until India and Pakistan are able to come to a political and military truce.
Tuesday, March 10, 2009
Africa and Human Rights: A Long Way to Go?
A few days ago, Zimbabwe's Prime Minister, Morgan Tsvangirai, and his wife, Susan, were involved in a brutal car accident. Tsvangirai walked away with relatively minor injuries, but his wife was mortally injured and died quickly after the accident (click here to read the story: http://www.cnn.com/2009/WORLD/africa/03/06/zimbabwe.tsvangirai.accident/index.html). For those who haven't followed African politics lately, the news of the crash may seem purely incidental and insignificant in the grand scheme of things. After all, a car accident can happen to anyone, right? Not entirely true in the context of Zimbabwe, and Africa more broadly speaking.
Morgan Tsvangirai has been a long-time political opponent and foe of the country's dictator, Robert Mugabe, who has been in power for decades, and who has a history of crushing any political opposition and making enemies disappear. In 2001, Defense Minister Moven Mahachi died; Employment Minister Border Gezi's died in 1999, and just last year, Elliot Manyika, a government minister and former regional governor, also died. All three died in car crashes. Recently, Mugabe was pressured into a power-sharing agreement with Tsvangirai, whereby Tsvangirai was elected Prime Minister. And then, Tsvangirai and his wife were victims of an eyebrow-raising car crash as well. Tom McDonald, the former U.S. ambassador to Zimbabwe, is suspicious of the circumstances leading up to Tsvangirai's car accident and says that the incident "gives him pause." Other experts on this volatile African region also cite concerns, suspicions about Mugabe's possible involvement, and fear that this incident will cause further instability in Zimbabwe and will fragilize the already fragile power-sharing agreement between Mugabe and Tsvangirai.
Moreover, observers and experts are sceptical about Mugabe's (and other regional countries' leaders) willingness to respect human rights in general. Mugabe has been known to brutally crush any opposition, and the truce with Tsvangirai was negotiated only after bloody demonstrations in which hundreds of people were killed. Tsvangirai himself has been imprisoned, arrested and beaten during the last few years. Mugabe may have officially agreed to share power with Tsvangirai, but may in fact only be waiting for another opportunity to make Tsvangirai disappear, either by orchestrating his murder or by accusing him of unfounded crimes and by imprisoning him for a long time. Any other human rights activists operating in Zimbabwe risk a similar fate. Zimbabwe is not alone, however: throughout Africa, many other countries refuse to respect human rights. In Kenya, two high-profile human rights activists were recently killed, raising suspicious about a possible police (and government) involvement (click here to read the story: http://www.cnn.com/2009/WORLD/africa/03/06/kenya.activists/index.html). And many other African countries regularly engage in human rights violations: Sudan, Ivory Coast, Algeria, and Somalia are just a few examples. Africa as a continent (with some notable exceptions) has a long way to go with respect to affording appropriate human right protections to groups and individuals. And opposition politicians like Tsvangirai deserve global praise for their willingness to sacrifice everything, including the safety of their loved ones, for the chance to dethrone oppressive leaders.
Morgan Tsvangirai has been a long-time political opponent and foe of the country's dictator, Robert Mugabe, who has been in power for decades, and who has a history of crushing any political opposition and making enemies disappear. In 2001, Defense Minister Moven Mahachi died; Employment Minister Border Gezi's died in 1999, and just last year, Elliot Manyika, a government minister and former regional governor, also died. All three died in car crashes. Recently, Mugabe was pressured into a power-sharing agreement with Tsvangirai, whereby Tsvangirai was elected Prime Minister. And then, Tsvangirai and his wife were victims of an eyebrow-raising car crash as well. Tom McDonald, the former U.S. ambassador to Zimbabwe, is suspicious of the circumstances leading up to Tsvangirai's car accident and says that the incident "gives him pause." Other experts on this volatile African region also cite concerns, suspicions about Mugabe's possible involvement, and fear that this incident will cause further instability in Zimbabwe and will fragilize the already fragile power-sharing agreement between Mugabe and Tsvangirai.
Moreover, observers and experts are sceptical about Mugabe's (and other regional countries' leaders) willingness to respect human rights in general. Mugabe has been known to brutally crush any opposition, and the truce with Tsvangirai was negotiated only after bloody demonstrations in which hundreds of people were killed. Tsvangirai himself has been imprisoned, arrested and beaten during the last few years. Mugabe may have officially agreed to share power with Tsvangirai, but may in fact only be waiting for another opportunity to make Tsvangirai disappear, either by orchestrating his murder or by accusing him of unfounded crimes and by imprisoning him for a long time. Any other human rights activists operating in Zimbabwe risk a similar fate. Zimbabwe is not alone, however: throughout Africa, many other countries refuse to respect human rights. In Kenya, two high-profile human rights activists were recently killed, raising suspicious about a possible police (and government) involvement (click here to read the story: http://www.cnn.com/2009/WORLD/africa/03/06/kenya.activists/index.html). And many other African countries regularly engage in human rights violations: Sudan, Ivory Coast, Algeria, and Somalia are just a few examples. Africa as a continent (with some notable exceptions) has a long way to go with respect to affording appropriate human right protections to groups and individuals. And opposition politicians like Tsvangirai deserve global praise for their willingness to sacrifice everything, including the safety of their loved ones, for the chance to dethrone oppressive leaders.
Thursday, March 5, 2009
Comment on the ICC Arrest Warrant (by Manisha Desai)
As this blog suggests, the ICC’s arrest warrant for the President of Sudan’s Omar Hassan al-Bashir begs the question: what is the purpose of the ICC? The ICC states that it “is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” (http://www.icc-cpi.int/Menus/ICC/About+the+Court/). There are two prongs to “ending impunity.” The first is to create a deterrent effect and stop (or prevent) serious crimes. The second is to bring the perpetrators of serious crimes to justice and provide justice to the victims. As this blog notes, in the immediate term, the arrest warrant will have no effect in stopping the crimes being committed in Darfur by the al-Bashir government. To the contrary, as this blog and several news agencies have reported, not only have aid agencies been asked to leave almost immediately after the warrant was announced, but violence in Darfur is expected to increase. (Click here to read New York Times article: http://www.nytimes.com/2009/03/05/world/africa/05court.html?_r=1&hp). Similarly, while Sudan is required to cooperate with the ICC and arrest al-Bashir, it is widely accepted that Sudan will not do anything of the sort. Indeed, the ICC already issued warrants for a Sudanese government minister and a former militia leader in 2007. Neither has been turned over to the ICC. It is fairly evident that the ICC’s arrest warrant will have no deterrent effect in the short-term. But deterrence in the short term is a political question, one that any justice system, particularly the international justice system, is ill-equipped to handle. We must continue to hope that the international community will use all international political means possible to end the conflict.
If the ICC cannot provide short-term deterrence what was the purpose of issuing the arrest warrant? To fulfill the second prong of “ending impunity”: bringing al-Bashir to justice and providing justice to the victims in Darfur . While the arrest of al-Bashir is hard to envision today, there is a possibility that the government in Sudan will change or that in the future the international community will actively try to enforce the arrest warrant. Recent history suggests that perpetrators of serious crimes are being apprehended. One only need look at the arrest last year by Serbia of Radovan Karadzic, the former Bosnian Serb leader. Karadzic was at large for 13 years; living quietly in Belgrade . The catalyst for Serbia ’s action? Coveted membership in the European Union. (Click here for article on Karadzic’s arrest: http://www.iht.com/articles/2008/07/22/europe/serbia.php). Today China , Russia and some African countries are supporters of al-Bashir, but where will they be in 13 years? The ICC arrest warrant may not have any impact on the daily lives of the victims of Darfur, but it does give a glimmer of hope that when the fighting stops, the perpetrators are more likely than not to be brought to justice.
If justice is the principle goal, and it is well-known that justice will not be achieved immediately, why did the ICC risk increasing hostilities by issuing the arrest warrant now? Indeed, the Tanzanian president suggested during an interview on CNN that the ICC arrest warrant is a distraction from what should be the international community’s first priority of allowing UNAMID, the UN peacekeeping force in Darfur , to create peaceful conditions in Darfur . Justice, according to the Tanzanian President, can only come after peace has been achieved. Why, then, did the ICC risk further injuries and death when it knows that the arrest warrant will have no short-term impact? The Darfur investigation was referred to the ICC in March 2005 by the UN Security Council. (Click here for UNSC 1593 http://www.un.org/News/Press/docs/2005/sc8351.doc.htm). The al-Bashir arrest warrant was issued in March 2009 -- 4 years later. During these 4 years, according to Moreno-Ocampo, “[g]enocide continues. Rapes in and around the (refugee) camps continue. Humanitarian assistance is still hindered.” (http://www.nation.co.ke/News/africa/-/1066/498290/-/147jnmsz/-/index.html). Four years have not been sufficient for the al-Bashir government to stop the violence or for the international political community to secure peace through UNAMID. Waiting any longer to start the judicial process does not make sense in this situation. Further, as Human Rights Watch has stated: “Yielding to intimidation [by the al-Bashir government of further violence] would set a dangerous precedent and would make the international community susceptible to blackmail.” (http://www.hrw.org/en/news/2008/08/15/q-article-16).
By Manisha Desai,
Manisha Desai is an Adjunct Professor, Temple University, Japan Campus, where she teaches international business law. Prior to joining Temple University, Japan, Ms. Desai was an associate at Cleary, Gottlieb, Steen and Hamilton, where she practiced complex civil litigation and international arbitration and Waller Lansden Dortch and Davis, LLP, where she continued to practice complex civil litigation, with a focus on white collar crime. Ms. Desai also clerked for the Honorable John T. Nixon, Senior District Court Judge for the Middle District of Tennessee.
If the ICC cannot provide short-term deterrence what was the purpose of issuing the arrest warrant? To fulfill the second prong of “ending impunity”: bringing al-Bashir to justice and providing justice to the victims in Darfur . While the arrest of al-Bashir is hard to envision today, there is a possibility that the government in Sudan will change or that in the future the international community will actively try to enforce the arrest warrant. Recent history suggests that perpetrators of serious crimes are being apprehended. One only need look at the arrest last year by Serbia of Radovan Karadzic, the former Bosnian Serb leader. Karadzic was at large for 13 years; living quietly in Belgrade . The catalyst for Serbia ’s action? Coveted membership in the European Union. (Click here for article on Karadzic’s arrest: http://www.iht.com/articles/2008/07/22/europe/serbia.php). Today China , Russia and some African countries are supporters of al-Bashir, but where will they be in 13 years? The ICC arrest warrant may not have any impact on the daily lives of the victims of Darfur, but it does give a glimmer of hope that when the fighting stops, the perpetrators are more likely than not to be brought to justice.
If justice is the principle goal, and it is well-known that justice will not be achieved immediately, why did the ICC risk increasing hostilities by issuing the arrest warrant now? Indeed, the Tanzanian president suggested during an interview on CNN that the ICC arrest warrant is a distraction from what should be the international community’s first priority of allowing UNAMID, the UN peacekeeping force in Darfur , to create peaceful conditions in Darfur . Justice, according to the Tanzanian President, can only come after peace has been achieved. Why, then, did the ICC risk further injuries and death when it knows that the arrest warrant will have no short-term impact? The Darfur investigation was referred to the ICC in March 2005 by the UN Security Council. (Click here for UNSC 1593 http://www.un.org/News/Press/docs/2005/sc8351.doc.htm). The al-Bashir arrest warrant was issued in March 2009 -- 4 years later. During these 4 years, according to Moreno-Ocampo, “[g]enocide continues. Rapes in and around the (refugee) camps continue. Humanitarian assistance is still hindered.” (http://www.nation.co.ke/News/africa/-/1066/498290/-/147jnmsz/-/index.html). Four years have not been sufficient for the al-Bashir government to stop the violence or for the international political community to secure peace through UNAMID. Waiting any longer to start the judicial process does not make sense in this situation. Further, as Human Rights Watch has stated: “Yielding to intimidation [by the al-Bashir government of further violence] would set a dangerous precedent and would make the international community susceptible to blackmail.” (http://www.hrw.org/en/news/2008/08/15/q-article-16).
By Manisha Desai,
Manisha Desai is an Adjunct Professor, Temple University, Japan Campus, where she teaches international business law. Prior to joining Temple University, Japan, Ms. Desai was an associate at Cleary, Gottlieb, Steen and Hamilton, where she practiced complex civil litigation and international arbitration and Waller Lansden Dortch and Davis, LLP, where she continued to practice complex civil litigation, with a focus on white collar crime. Ms. Desai also clerked for the Honorable John T. Nixon, Senior District Court Judge for the Middle District of Tennessee.
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