The African Criminal Court: An African Solution for African Problems?

At the African Union (AU) Summit meeting in July, the African Heads of State are expected to finalize and adopt the creation of the African Criminal Court. The creation of such a regional criminal court is unprecedented and may come into conflict with the existing International Criminal Court (ICC), but the question is: is an African owned justice process, outside the hand of “western” influences, what is needed to foster security and peace on the Continent?

The African Court of Justice and Human Rights (aka the African Criminal Court) will be the result of the merger of two existing AU legal structures—the African Court on Human and People’s Rights and the Court of Justice of the African Union—and will have three sections: general affairs, human rights, and international criminal law. The jurisdiction envisioned for the court will include the categories already covered under the Rome Statute of the ICC – genocide, crimes against humanity, and war crime – but will also include crimes of particular relevance to African, including piracy, terrorism, mercenary activity, corruption, money-laundering, human/narcotic trafficking, and illegal exploitation of resources. This comprehensive list of indictable crimes aims to combat some of African’s biggest problems through criminal justice, in hopes that this will subsequently promote regional peace and security. While its adoption is anticipated at the July AU Summit, the new court will not enter into force until it is ratified by 15 member states.

The African Union has been very vocal regarding its feelings of contempt for the present system of international criminal justice. Since, to date, the ICC has only taken on African cases, there is a general feeling that the Court biased, determined only to seek out and prosecute African violators of international criminal law. It is important to note, however, that out of the 18 cases the ICC is currently handling, 12 were referred to the ICC by the respective countries and only 6 were the result of a UN Security Council directive. While the President of the ICC maintains that is ICC is not a political entity and acts impartially within the strict legal framework provided for by the Rome Statute, the fact that the only Security Council directives have been for African fugitives while other violators in international criminal law have thus far escaped indictment, questions the degree of independence by which the ICC operates. It is in this context that the African Union has sought to create their own system to bring about African justice by and African hand.

One of the biggest problems with the ICC and its indictments in Africa is that it does not take into consideration the context in which their indictments have been rendered. For example, the ICC has indicted, tried, and convicted Congolese perpetrators of crimes against humanity in the midst of the enduring conflict in the Democratic Republic of Congo. In this way, the ICC acted with a strictly judicial understanding: an individual has committed an indictable crime under the Rome Statute and therefore must be brought to justice. Such a mindset does not take into consideration the large implications of such an indictment on the longer term peace and security of the region. Justice, while an important aspect in post-conflict reconstruction and an essential component of any democratic society, renders hard-line, black and white decisions—either convicting or acquitting an individual; in the midst of a conflict the circumstances surrounding an individual’s actions are hardly ever black and white. There is a lot of grey area that the ICC does not have the mandate to take into account. Justice creates clear winners and losers and, in doing so, can negatively impact the reconciliation and post-conflict reconstruction process. In extreme cases, this creation of winner and losers can prove the grievances upon which future violence is founded. The interest of peace and security is the reason why the AU has called for the postponement of trials against AL-Bashir, not wanting trials Given this, is would an African owned judicial system be more understand of the context in which it operates and make greater strives towards achieving regional peace and security?

The creation of the regional criminal court is completely unprecedented under international law and consequently, its interaction with the ICC is uncharted charted territory. For one, there is no hierarchy of treaties under international law; everything is on the same level. Currently, the ICC has agreements with national court, surrendering jurisdiction to the national level if the state is willing and able to carry over prosecution, but it has not such mechanism to deal with the creation of a regional court. Thus, if a state is partied to both the African Criminal Court and the ICC, there is no clear cut why of determining which court will have jurisdiction. This will pose a conflict in terms of jurisdiction among those African countries which have ratified the ICC Charter and which seek to ratify the statute of the African Criminal Court.

If the United Nation’s coordination of peacekeeping missions with the African Union serves as precedence than there may be some guidance in the construction of the AU/ICC road-map. More and more, there is a movement towards African led peacekeeping mission that are supported by the UN. The African Union Mission in Somalia (AMISOM) is an example of this. The goal then would be to create a relationship between the African Union and the ICC in which the African Union has primary jurisdiction over cases, but is supported by the ICC and has the discretion to refer cases to the ICC. The exact details of this suggested relationship remain unclear at the present moment. However, in order to avoid future conflict and headaches, the relationship between the ICC and the African Criminal Court should be fleshed out in more detail before the African Criminal Court enters into full force.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the United Nations International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Tanzania: An Unraveling Democracy?

This past week, with the UN compound bombing in Somalia, the ongoing crisis in Syria, the protests in Turkey, and the outbreak of protest in Brazil, story of the bombing in Arusha received little to no international media attention. When weighed against these other events, the June 15th bombing in Arusha seems like such a small and isolated event. Tanzania is perceived to be one of the more stable countries in the region and the recent events have been deemed by security personnel to be isolated incidents. However, when taking into consideration the political motivation of these crimes as well as the responses of both the authorities and the police, one can’t help but wonder if this situation is a glimpse of a greater problem, one that if not addressed, could threaten the stability of Tanzania’s democracy.

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On Saturday June 15th, Tanzania’s opposition party, the Party for Democracy and Development (CHADEMA) held a rally at the Saweto district stadium, in the Kalonlei area of Arusha city. The rally was the peak of the campaign for by-elections to fill the vacuum for representatives in six Arusha area districts, notably Kalolei, Themi, Elerai, and Kimandolu, origionally scheduled for Sunday, June 16th. What should have been a peace demonstration—exemplifying democracy, freedom of expression, freedom of association, and free speech—quickly turned chaotic when grenade exploded near the center stage as Freeman Mbowe, the party’s leader, addressed supporters. The bomb killed four people, three of which were children, and resulted in approximately 50 to 70 additional causalities. Although the assailant(s) have not yet been caught and the motive has not formally been determined, it is believed that the attack was politically motivated, the opposition leaders being the intended targets of the blast. Arusha is a CHADEMA stronghold and this attack threatens to exacerbate already uneasy political tensions between CHADEMA and the CCM, the ruling party of the government. CHEDEMA officials have previously expressed complaints regarding government crackdowns against opposition demonstration and public rallies.  The National Electoral Commission cancelled the by-election in all six Arusha districts, citing insecurity. The by-elections have been rescheduled for Sunday, June 30th.

In response to this event, Tanzania authorities banned all public gatherings and deployed the Tanzania People’s Defense Forces to keep the area clam. Consequently, when a memorial service was held on Tuesday June 18th, to mourn the death bomb’s victims, the service was perceived as a security threat. The police, liable to disperse any unauthorized rallies, fired teargas into the ground, fired several rounds of warning shots into the air, and made several arrests as the attempted to disperse the crowd. Roadblocks were set up, movement around Arusha became increasingly difficult, and security became a pressing concern for Arusha residents. CHADEMA has long complained of unnecessary crackdown by the Tanzanian government, and this is yet another example. Four deputies of CHADEMA and a dozen supporters were arrested on charges of illegal assembly, but were released on bail on Wednesday, June 19th.

There have always been tensions between CHADEMA and CCM in northern Tanzania; however, these tensions have recently increased as support for CHADEMA has been rising in the region, making the party a serious contender in the next election. Tensions between the ruling political party and the opposition party are not abnormal in and of themselves. In fact, such rivalry is inherent in the democratic system. In a developing democracy such as Tanzania, the way in which the rivalry is expressed is of the utmost importance as it sets precedence for the handlings of a multiparty democracy in the future.

CHADEMA is an opposition party with growing popular support, particularly in northern Tanzania. In a free and fair democracy, if CHADEMA is able to bolster the majority support and win the next election, they should rightfully become the ruling party in Tanzania. The bombers of the CHADEMA rally remain unknown and until the perpetrators are caught, it is dangerous to make accusations regarding who the bombers were; however, given that the bombing took place at a political rally and is considered to be an isolated incident, the assumption remains that the bombers’ motivations were political. Who they were and what kind of association they have are undetermined.

The banning of political rallies by government officials in response to this bombing is concerning. Yes, there is an element of security involved, but there a fine line between national security and the infringement on human rights, which is often blurred. What is more striking was the dismantling of the memorial service. This was not a political rally—although largely CHADEMA supporters were in attendance—it was memorial service for those who had perished in the bombing. Moreover, the police were quick to employ violence and confrontational methods to break up this gathering, rather than first attempting to disperse the group through non-violent means. The overreaction of the police in this instance has the potential to insight further violence as some may feel compelled to respond/reciprocate their treatment by the police. And thus begins a cycle of violence that can quickly spiral out of control. This has not yet been the case in Tanzania, but with the underlying tensions between the political parties and the authorities’ use of violent methods there is festering potential.

Tanzania has been a relatively stable democracy since gaining its independence from colonial rule in 1964, especially when one considers the other countries in the region; however, it transformation into a complete and opened democracy is not yet finished. The next step in the process is the acceptance of alternative political groups and the willingness of the present party in power to relinquish power, when and if another party rightfully wins the majority. With growing opposition towards the ruling party, it is essential that they be granted a platform for the expression of their opinions and ideas. If suppressed, as the opposition party continues to grow, this could seek to threaten Tanzania’s democratic stability.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Can We Create A Utopia?

Recently, I pulled a childhood book off my shelf – The Giver by Lois Lowry. The book is one of my favorites, and since I hadn’t read it since the seventh grade, I decide to re-read it. In the context of my studies now, the book took on a whole different meaning for me which had me asking: What does post-conflict reconstruction look like? Should democracy always be the goal? Or put more simply, is there such a thing as a utopic  society?

The aftermath of war, be it civil or international, is almost as bad as the fighting itself. Yes, the violence may have stopped – the result of a victorious party, a peace agreement, or an international intervention – but the battle has not yet been won. The conflict is frozen, balancing on the edge of a knife; a sudden movement in either direction could cause the process to unravel. It is at the moment, when a country is most vulnerable, that post-conflict reconstruction begins. The goal is to rebuild the country from the ground up, putting in place the necessary infrastructure and institutions, with all the checks and balances to hopefully ensure that such violent conflict does not reoccur. The traditional formula has been the institutionalization of democracy, but is this the most viable option? Can this create an enduring peace in and of itself?

There are two characteristics of democracy that are pertinent to this discussion: competition and choice. Democracy is competitive by its very nature. An election is a competition between competing parties for control of the government. Sounds simple, civil; people go to the ballots, cast their vote, one party wins, and there you have it, a new government. And in a developed democratic system this might be the case, but in a newly formed, or rather forming, democracy, the situation is quite different.

Imagine this: the multiple competing factions in a civil war have managed to come to a peace agreement, by way of an international intervention, have agreed to participate in national elections to determine the next legitimate government. In preparation for these elections, the former conflict factions each form their own political party. As, resources are scare and corruption is high, the only way to ensure one’s interests is to control the access and distribution of both resources and power. Thus, the elections have become a power struggle between the former competing factions. In support of this claim, Soth Plai Ngram, an expert on peacebuilding in Cambodia wrote in his M.A. Dissertation, “democracy is a competing terrain for political parties to win their power by controlling military forces, money and resources, rather than by winning the hearts of the people by improving their lives” (p.53). Consequently, rather than foster peace, democracy could actually create another means by which these parties continue to fight, pushing the fragile peace off the edge of the knife and sending it back into the chaos of violence.

Democracy is also characterized by choice; the capacity of each individual to have a voice in the process, to make their choice, and to cast their vote. But choices also create differences. They distinguish us from one another. The creation of differences between people, can be the source of future violence is a fragile state if these differences are not addressed or if there are not mechanisms in place for the reconciliation of such difference without resorting to violence. The construction of an identity based on differences is one of the foremost sources of conflict. Take, for example, the Rwanda genocide (rooted in construction of Hutu/Tutsi identities), the Israeli/Palestinian conflict (rooted in different religious identities), or the conflict between the two Sudans (rooted in a conflict between Arab/African identities). Democracy helps to facilitate the capacity of choice, but could it be possible for this capability to actually be detrimental to post-conflict reconstruction? How do we reconcile this? If not by democracy, then what?

There is a quote from The Giver that fits perfectly here, and attempts to define an alternative to democracy:

“We don’t let people make choice of their own…We really have to protect people from wrong choices…It’s safer” – Jonas to the Giver (Lowry p. 99)

The community in the giver is supposed to amply a utopic society; however, it is anything but a democracy and is rather more akin to a dictatorship. There is no suffering or pain, no bloodshed or tear, but there also is not choice or freedom. The society has a prescribed set of rules to which its citizen must adhere and the citizens are constantly monitored by camera to ensure compliance. The society has a predetermined number of births and deaths (referred to as ‘releases’) per year and each family unit has two children (one male and one female). A Committee of Elders matches husbands and wives, children to their parents, and jobs to the children at the age of 12 based on their individual characteristics and personal attributes. There are not differences. There is no colour, only shades of grey, emotions are suppressed with medicine, and there is an emphasis on uniformity and conformity. This system is functional and it seems to works, at least in the short term. The problem here is that it is like a teeter-totter; it can be a stepping-stone to something greater or a system needing just the right straw to entirely collapse.

So where does this leave us in terms of post-conflict reconstruction. What I have just described represents the two chasms between which peace balances: democracy, by nature of choice and competition, resulting in reoccurring conflict at one extreme, and dictatorship resulting in conflict when its authority is shaken or threatened at the other extreme. And in between we have a peace, fragile and fleeting, but nevertheless struggling to exist. The goal of post-conflict reconstruction should be neither democracy nor dictatorship, but rather the expansion of the space in which peace can be created; a widening of the tightrope to a more manageable size. It should begin with dialogue among the parties involved, but should not move too quickly towards any particular goal. A strong foundation needs to be built otherwise the system will collapse once more. If democracy is the answer, then the progress towards it needs to be slow. It needs to be built up brick by brick, not thrown together with fingers crossed hoping that it works. A democracy in a post-conflict situation needs to be continuous supported – one election does not create a democracy. It is a process. It may come with initial elements of dictatorship – highly centralized power, lacking in rights and freedoms – but these elements do not spring up overnight. Yes, the ultimate goal should be an open, democratic society, but this takes time.

So, can we create a utopia? Is a post-conflict situation the opportunity to sculpt a utopia society? Probably not. But that doesn’t mean we shouldn’t strive towards it. If we are taking utopia to be synonymous with peace, reconciliation, the absence of violence, human rights, sustainable development, and the dignity of human beings, then it is a goal that we must continue to work towards. However, it is a project that never ends. There is no perfect system, no perfect democracy, no perfect society; it can constantly be improved. Although utopia will never be reached, striving towards it is what helps to create a lasting peace, one step at a time.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Press Freedom: A Necessary Condition for Democracy?

Somalia has been seemingly moving in the direction towards great development and democratization. As of August 2012, Somalia has a new Constitution, elected a new government, put a new cabinet into place, and has been working to advance talks with Somaliland. Given the recent successes in this country, the United Nations voted to remove the arms embargo against Somalia and international embassies have, once again, begun to open in Somalia. Somalia’s human rights record, however, specifically in the case of press freedom, demonstrated that this movement towards democracy is stagnant.

The Provisional Constitution of Somalia, adopted on August 1, 2012 outlines the essential rights and freedoms of every Somali. As such, article 18 contains the prescribed freedom of expression and opinion. Article 18 (1) states “every person has the right to have and express their opinions and to receive and impart their opinion, information, and idea in any way,” and article 18(2) states “freedom of expression includes freedom of speech and freedom of media, including all forms of electronic and web-based media.” Inherent in these articles is press freedom, the capacity for one to publish an article using any outlet, on any topic, provided that it does not violate the rights of another (ie. defamation). Yet in Somalia, this is not the case 

The Press Freedom Index ranked Somalia 175th in 2013. This ranking, out of a total 179 countries, means Somalia has one of the world’s lowest rankings in terms of press freedom, surpassed by only Eritrea, North Korea, Turkmenistan, and Syria. Not only is media censorship in Somalia a problem, but Somalia also continues to be one of the most dangerous places in the world for journalists to operate. In 2012, 18 media workers were killed in Somalia, most of which were the result of targeted killings rather than frontline fatalities. The Somali government has vowed to stop the attacks against journalists, but has not followed through on its promise. In the first quarter of 2013, 5 journalists were killed in Somalia. The country’s problems with press freedom, however, are not limited to killing journalists; they also include suppression of the journalist voice through imprisonment.

Adbiaziz Abdinur Ibrahim, a Somalia freelance journalist, faced charges including insulting a government body, making false accusations, and seeking a profit for these accusations. The reason for these charges: Ibrahim interviewed a Somali woman who was allegedly raped by 5 government soldiers.  The Somali woman who was interviewed was also imprisoned. Even though the article was never published, a Mogadishu court sentenced both Ibrahim and the alleged victim to one year in prison on the basis that medical evidence proved that the woman was not raped. The case was brought the Somali high court where both parties were eventually released. In reference to Ibrahim, Adidi Abdillahi Ilkahanaf, Chairman of the Somali High Court, stated that there was no evidence to support the charges brought against him and consequently, on March 17th, Ibrahim was released.

This case is of particular concern as it not only is a clear violation of press freedom, but this violation was an attempt to suppress victim’s right. Whether she was raped or not is not the issue at hand here, but rather that her case was dealt with through imprisonment and media suppression, rather than through the use of the judiciary. Human rights activists contended that the imprisonment was politically motivated, aimed at covering up the rampant sexual abuse of women in Somalia. The fact that the Somali President refused to intervene is evidence in this regard.

Democracy is supported by freedom of the press. When the press is able to report on issues of interest, be they in favor or against the government in power, the system is legitimized by its transparency. When people are able to express their opinions in a non-violent way,  feel as though those opinions are being heard, and feel as though they are inspiring change with in the government/country, then the transition towards a democratic society can progress. However, a society that continues to block press freedom, freedom of expression, and cover up human rights violations will not be able to make the transition towards democracy.

Yes, Somalia has made some great strides in the past year, and yes, they are on a path towards something, but Somalia is a critical fork in the road. It can either choose to continue moving towards democracy, opening its country the rights and freedoms inherent in a democratic society, or it can choose to continue restricting human rights and consequently risk loosing any gains it has previously made. Press freedom in an instrumental step in the process towards democracy.

 

For more on press freedom, see PeaceMedia:

http://peacemedia.usip.org/resource/world-press-freedom-day-%E2%80%93-usaid

http://peacemedia.usip.org/resource/world-press-freedom-day-2011-unesco

http://peacemedia.usip.org/resource/world-press-freedom-day-unesco

 

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340. 

Drones: 4 Questions to Consider

“Do we want to live in a world where the U.S.’s justification for killing is so infinitely malleable?”

Rosa Brooks, Professor of Law at Georgetown University

Drones (also known as remotely piloted aircrafts) are the warfare of the 21st century. They make it possible for an American soldier, sitting comfortably at the Haddock Air Field Base in New York, to targeted individual in Afghanistan, 7,000 miles away. This capacity to engage in warfare without putting boots on the ground has generated significant debate, a debate which recently took place at the United States Senate.

On June 23rd 2013, the United States Senate Judiciary Committee held a hearing to which legal, public policy, and military officials were asked to testify regarding the potential constitutional and counterterrorism implications of using drones in targeted killings. As we continue to contemplate the use of drones, there are four main questions that should be considered.

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Are Drones Inherently Bad?

Drones are a tool of warfare, just as missiles, guns, swords, and cannons are tools of warfare. It is a mechanism of force, a means of eliminating an adversarial target. What does differentiate the use of drones from other tools of war is that they are operated remotely, causing some to believe that they are inherently bad. In reality, however, the use of drones requires the highest level of scrutiny; there are certain criteria that need to be met before a drone attack can be launched. Moreover, after the attack has been launched, it can be aborted until the very last second. Yes, capture mission might be ideal; however, when taking into consideration the high opportunity costs of such missions, from military standpoint, the use of drones is a better option.

From a legal standpoint, drones do not create any new rule of law issues in the traditional battlefield. They are well within the scope of international law. Ilyam Somin, Professor of Law at George Mason University stated, “[the] means doesn’t matter so long you have the target right.” In saying this, he calls attention to the protocol that bridges the gap between suspect and launching of an attack. Once the appropriate steps have been taken to determine that an individual is a legitimate threat and therefore a legitimate target, the means of attack becomes irrelevant, except in terms of opportunity costs.

Who Can Become the Target of a Drone Killing?

Traditionally, drone attacks have been authorized under the Authorization for the Use of Military Force (AUMF) joint-resolution passed by the United States Congress in 2001. The AUMF gives the President the authority to use all ‘necessary and appropriate’ force against those individuals who ‘planned, authorized, committed, or aided’ the September 11th attacks. This question recently took on another dimension, when it was asked if Americans can be targeted by US drones, and if this answer is different depending on whether the American is on US soil or on foreign soil.

Senator Cruz set out four criteria to keep in the consideration of a drone strike: is the individual a terrorist target?, where is their geographic location?, are they active in a foreign hostile force?, and is there an imminent threat?

The question here is not really about citizenship but more about the capacity of the individual to be apprehended and captured. If the individual is a terrorist target, his active in a foreign hostile force, and is an imminent threat, then yes, they could be drone attack. However, a drone attack should be the last resort, not the de facto action. If the individual can be apprehended and captured, without the use of drones, this is ideal. By this logic, an American citizen on American soil would not be subject to a drone strike, as the United States has the police and law enforcement capacity to apprehend, detain, and try the person in question. It is by this same logic that al-Qaeda affiliates in the mountains of Pakistan – who are difficult to reach via a deployment mission and where the government does not have the capacity/willingness to apprehend and detain these individuals – are subject to drone attacks. Thus, the nationality of an individual is not the primary determinate in the decision use of drones, but rather one’s criminality and the capacity for him or her to be apprehended determines the employment of drones.

When Can Drones be Employed?

The ambiguity in the decision to employ the use of drones is threefold: ambiguity in the legal framework governing the use of drones, ambiguity of the terminology, and ambiguity the determination of war. Each of these make it difficult to develop a clear understanding as to when drones can be employed as a mechanism for targeted killings.

As stated above, the AUFM provides the legal framework uses to justify the employment of drones. However, it is limited in scope to those individuals who carried out the 9/11 attacks. At this point, almost 12 years after the 9/11 attack and with Bin Laden having been killed, can it really be argued that the perpetrators of 9/11 are still the targets? The targets have largely remained Al-Qaeda affiliates, but to say that they were actively involved in the 9//11 attacks might be an unwarranted exaggeration. If this framework is to be the justification for the targeted killings in the future, it needs to be amended to reflect the present day situation: the war on terror not a targeting of 9/11 perpetrators.

The AUFM uses the term ‘imminent threat’ to describe those who can become targets. This term, however, is largely subjective. Historically, the term imminent threat has come to mean that if one does not act, the target will carry out an attack against. This is also known as -1 stage, with 0 being the launch of the attack, and -1 being the moment just before the attack is launched. It is this principle that governed the Bush Doctrine of Preemption. This raises the following questions: can someone over 7,000 kilometers away, hiding in the mountains be considered an imminent threat? What are the criteria to determine an individual is an imminent threat and thus a legitimate target? Without definition this term can be used very loosely to justify the any target killing; thus, the development of accountability measure becomes tremendously important (see below).

There is also difficulty in determining the state of war, and thus the legality of an attack. Within the context of war, the concept of imminent threat becomes void and the targeting of adversarial combatants is supported by international law. In peacetime, however, there is a system of processes that determines the use of force. A police officer in the United States, for example, has a set of criteria that he or she must meet before he or she can employ the use of force against a suspect. The problem with ‘war on terror’ and the targeted killing of Al Qaeda leaders is that it is not a formal war as the United States never formally declared war on Afghanistan. This makes the definition of war ambiguous and the determination of targeted killing within the traditional legal framework all the more difficulty. Once again, this calls attention to the need to develop transparency and accountability mechanisms for this process of determination.

What Mechanisms are Necessary to Ensure Transparency and Accountability?

Presently, the decision as to who can be the target of an attack is made by a very small group of people under a framework that is ambiguous at best. This is a slippery slope. Without transparency and accountability mechanisms, how can it be determined that only legitimate threats are targeted and how can those who make mistakes be held accountable for their actions?

At the hearing, it was suggested that a court system be developed with the function of vetting potential targets to ensure that they are legitimate threats and can be rightful targeted under a predetermined framework. This would allow for a level of transparency in the process, expand the number of people involved in the decision-making process, and legitimize the process of targeted killing as a whole.  Such a court, however, would need to be front-ended. That is to say, the court should have the capacity to give the okay for a potential target to be targeted, but the ‘go’ order should remain in the ranks of the military. Due to the checks within the military and the degree of certitude needed for an operation to be given the ‘go’ order, when the stars align and the attack can be launched against a target, waiting for court approval could result in a loss of the target.

Furthermore, in dealing with targeted killings, there needs to be accountability mechanisms. Although the number of civilian casualties from the use of drones has significantly decreased in recent years, these cannot be completely eliminated. In the case of civilian casualties resulting from the use of drone, there needs to be a system of accountability, a capacity of holding individuals responsible for the harm of civilians. Moreover, there should be a process to make amends to harmful action against civilian population, a recognition of their suffering and an effort to mitigate future suffering. Civilians are not the targets of war, by rather the innocent bystanders. When their protection status under international law is violated, be it intentional or accidental, there need to recognition and accountability for these casualties. With accountability mechanisms and without making amends to civilians harmed in conflict, we risk the inflation of anti-American attitudes. Rather than work against a country as whole, we should seek to work against criminals and with the governments of a given country whenever possible. And if accidental harm is caused to civilians, be it in Yemen, Somalia, Pakistan, or elsewhere, amends should be promptly made.

International Corruption Eruption

 The phrase ‘corruption eruption’ was coined in 1995 by Moises Naim, a Senior Associated in the International Economics program at the Carnegie Endowment for International Peace. The phrase is in reference to the eruption of outcry against corruption in the post-Cold War period and subsequently asks the question: “why have societies, which have traditionally tolerated corruption at the highest levels in government and the private sector, suddenly lost their patience and their citizens willing to take to the street to topple high officials accused of wrong doings?” (Naim, 1995).

The fall of the Soviet Union and the communist bloc gave way to the rampant spread of democracy. This spread of democracy in turn exposed the corruption inherent in many government systems, both in established democracies such as the United States, Italy, and France, and in newly developed democracies. Exposing corruption resulted in public outcry and consequently the beginning of the ‘war on corruption’.

The war on corruption was characterized by an effort to combat corrupt at all levels. Countries enacted anti-corruption legislation to fight governmental corruption, corporations adopted strict codes of conduct to combat corruption in the private sector, and non-governmental organizations such as Transparency International were created to expose corruption and to hold both governments and private corporations accountable. The hallmark of this struggle against corruption is the creation of the United Nations Convention Against Corruption of 2003 (hereafter “the Convention”). As of December 24, 2012, the Convention has 140 signatories and 165 state parties.

The Convention demonstrates the concern of the international community in reference to the seriousness of the problems corruption poses to the stability and security of the state, the creation of democratic institutions, establishment of ethnic norms and justice, fostering sustainable development, and the creation of rule of law (Preamble). It’s purpose, as defined by article 1, is to promote/strengthen measure to prevent/combat corruption more efficiently/effective; promote/facilitate/support international cooperation and technical assistance in the prevention of and fight against corruption; and promote integrity. accountability, and proper management of both public affairs and public property. Moreover, it calls on the state to develop/implement/maintain effective coordinated anti-corruption policies that reflect the principles of rule of law, proper management of public affairs, public property integrity, transparency, and accountability (article 5).

How is Corruption Harmful to Civilians?

According to Naim, the word ‘corruption’ has become the “universal diagnosis for a nation’s ills” (Naim, 2005). This has the lead to perspective that if one can curtail the culture of greed in a given society, all other problems will be easy to solve. The problem, however, corruption is not necessarily correlated with economic prosperity. In countries such as Hungary, Italy, and Poland, a certain degree of prosperity has been able to coexist with systems of corruption. Furthermore, China, India, and Thailand provide examples of countries deemed to been highly corrupt while simultaneously experiencing high levels of economic growth.

Additionally, the fixation on corruption as the ‘ends-all’ problem drives the public debate away from other critical problems affecting a given state. Media outlets are more likely to publish on topic regarding corruption or scandalous activity, perceiving this to be more newsworthy. In doing so, they neglect to draw attention to other critical problems such as education, healthcare, infrastructure, or the economy. Although these problems may be aggravated by corruption, they were not created by corruption alone. They are the result of underdeveloped institutions that have been exploited by corruptive practices. Thus, the tendency to assume that the abolition of corruption will bring about prosperity is a very limited perspective.

Finally, the focus on corruption as the source of a state’s problems creates unrealistic expectations as to what is required to improve the standard of living within that state. There is a belief that by simply removing a corrupt leader, prosperity will follow. However, there is no direct correlation between theses two factors; the situation is more complex, involving a multitude of factors. If the expectations is that lustration will result in improved standards of living, this sets the stage for societal discontent and possible social unrest.

What is the Relationship between Corruption and Rebellion?

In keeping with the theme of ‘corruption eruption’ (ie. societal response to state corruption), there seems to be a correlation between rebellion/situations of social unrest and levels of corruption. Analysis of this correlations is draw from Transparency International’s Corruption Perceptions Index (hereafter ‘the Index’).

Libya provide the best example of this. Between 2008 and 2011, Libya’s ranking on the Index continually dropped. The same can be said for Mali between 2008 and 2011. The table below demonstrates this trend. Rankings are on a 10 point scale, 10 representing no corruption and 1 representing complete corruption.

 

LIBYA

Year

Score

Ranking

2008

2.6

126/180

2009

2.5

130/180

2010

2.2

146/178

2011

2

168/180

 

MALI

Year

Score

Ranking

2008

3.1

96/180

2009

2.8

111/180

2010

2.7

116/178

2011

2.8

118/182


As these two countries moved towards revolution/opened violent conflict, it appears as though they also became more corrupt. The problem remains, however, that there is no real way of qualifying corruption, given its covert nature. Thus, although there appears to be a relationship between increase corruption and the eruption of violence conflict, it is difficult to easily quantify this this relationship. Nevertheless, the relationship between corruption and rebellion warrants additional research. If more direct and specifies correlation can be established (ie. that kind corruption and by who tend to lead to rebellion), than it may be possible for this to act as an indicator for the likelihood rebellion.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Is There Room for Forgiveness in Criminal Justice?

On March 28th 2010, 19-year old Connor McBride shot Ann Margaret Grosmaire, his fiancé and girlfriend of three years in the midst of a heated argument between the two. Ann died in the hospital four days later. Rather than flee or try to cover up his actions, Connor walked into the Tallahassee Police Department in Tallahassee, Florida and turned himself in. Previously, Connor had never been in trouble, he was youth leader in his community, and had become a part of Grosmaire family. In any other case, Connor would have likely been convicted of first-degree murder, a conviction that, in the state of Florida, carries a minimum life sentence or the death penalty. But in this case, Connor only got 20 years imprisonment plus 10 years of parole. The reason: forgiveness.

Ann’s parents, Andy and Kate Grosmaire, were practicing Catholics, with forgiveness at the very essence of their practice. This moral grounding drove their actions in the coming days, weeks, and months after Ann’s death. Rather than retaliate or seek retribution, the Grosmaires searched forgiveness. What they wanted was closure, to understand how and why their daughter died. Moreover, they did not want Connor to spend his life imprisoned.  So, they decided to take part in a restorative-justice diversion program: victim-offender dialogue.

Victim-offender dialogue allow for the airing of the truth. Both parties confront one another and state the facts, as they understand them. This process creates a space in which reconciliation can begin and is thought to reduce recidivism rates. This practice was typically used for drug cases or more minor offense, and had never previously been attempted for a murder case. The Grosmaires, however, were insistent, and the prosecutor eventually agreed to participate, though did not promise to rescind the first-degree murder charges.

The dialogue took place on June 22nd 2011, with the Grosmaires, the Prosecutor, a mediator, and Connor. Connor told the story of how he shot Ann, step-by-step, and after he was finished, the Grosmaires were given the chance to ask questions. At the end of the session, the mediator asked the Grosmaires to recommend a sentence for Connor. Kate asked for no less than 5 years imprisonment and no more than 15; Andy asked for between 10 and 15 years imprisonment. The ultimate decision however, lay with the prosecutor. Having been impacted by the process, he eventually rescinded his original charges and gave Connor the option of 25 years imprisonment or 20 years in prison with 10 years of parole.

The case calls into the question the very premise of the criminal justice system. Criminal justice is, by nature, retributive – it is punishment for wrongdoings. The question is, what is the purpose of criminal prosecution. Arguments are made for its capacity to deter criminal activity and bring closure to the victims and their families; however, in this case, restorative justice was more beneficial to the victim’s family than the traditional system would have been. What is gained through punishment by imprisonment or, in the United States, the death penalty? Are there criminal cases when forgiveness should play a role and restorative justice should prevail?

In answering this question, it is important to remember the particulars of this case. Ann’s murder was not an accident, but it was not meticulously planned either. Given the circumstances of her death, it is unlikely that Connor would have ever killed again. This was a crime of passion, in the heat of the moment, and that opens the door for restorative justice.

This is not to discount the role of the criminal justice system. It is a tremendously important piece in the maintenance of law and order in a given society. But it is to say that the system is incomplete, lacking the reconciliation factor that allows one to move beyond the crime; allowing criminals to be better reintegrated into society, allowing victims to make their peace. It shouldn’t be one or the other – retributive or restorative justice. There should be space for the two systems to work together. There should be space for forgiveness.

Links:

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu, follow her on twitter @joleneh340, our read her blog at neophytepeacebuild.wordpress.com

Cambodia: the Geopolitical Chessboard

 

ImageThe history of the cold war boiled down to one sentence would go as follows: The world’s two opposing superpowers – Capitalist United States and Communist USSR – contending for international power and influence through the engagement of militarily armament, military engagement, and proxy wars. The United States commenced with a ‘roll-back policy’ – an attempt to rejuvenate democracy in those countries that had become communist, but this policy was soon shifted to one of containment – the prevention of future countries from becoming communism. When one thinks of the Cold War the Korean War, the Vietnam War, and the proxy wars fought in South America, Africa, and the Middle East immediately come to mind. Cambodia is not at the forefront of the discussion, yet it was victim of the geopolitical climate created by the Cold War environment.

Cambodia was declaredly neutral during the Cold War. In fact, to was part of the Non-AlignedImage Movement, a group of states that chose not to align themselves with either the community or capitalist bloc. However, Cambodia became of tremendous interest to both sides of the conflict during the war in Vietnam. Cambodia shares its eastern border with Vietnam, and despite declaring neutrality, it permitted the Viet Cong to use the eastern portions of the country as access routes to the American military forces. When the US discovered this, they proceed to carpet bomb the eastern region of Cambodia, causing immense destruction. The turmoil and destruction of the US bombings in Cambodia gave rise to civil war from 1970 to 1975, in which the Khmer Rouge was eventually victorious. Rumors began to circulate about the atrocities being committed by the Khmer Rouge regime in the late 1970s, so much so that the United Nations Commission on Human Rights launched an investigation into the Pol Pot regime in 1978. The resulting report, the Boudhiba Report, however, was never presented before the United Nations, largely due to the geopolitics surrounding Vietnam’s invasion of Cambodia in 1979.

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In January 1979, the Vietnamese invaded Cambodia, overthrew Pol Pot’s regime, and established the People’s Republic of Kampuchea. What needs to be noted on this topic, and which is often forgotten in Cold War history, is that in Asia, China and the USSR were positioned against one another – Maoism vs. Leninism. When the Vietnamese invaded Cambodia, they were backed by the USSR. This immediately incited fear into China who opening opposed Vietnam’s presence in Cambodia and called for the immediately withdraw of all Vietnamese troops. The United States, have just established economic relations with China and not wanting to hinder those relations, sided with China against the USSR backed Vietnamese government in Vietnam. At this time, the remaining Khmer Rouge member had fled to the forest and continued to receive support from the United States and China. Their support of rebel groups in Cambodia was so much that the Khmer Rouge remained the official representative of Cambodia at the United Nations until the after the Peace Agreement of 1991, despite the fact that the People’s Republic of Kampuchea was effectively running the country. In the midst of all this politics, the Boudhiba Report was given little attention. In fact, when its presentation was proposed before the United Nations General Assembly in February 1979, the USSR, the entire Soviet Bloc and the Non-Aligned Movement voted against its admission.

In the wake to the mass atrocities committed in Cambodia, no western government came to Cambodia’s aid, in spite of international commitments made to end such atrocities. “Never Again” was the slogan for the Nuremberg trial, the justification from bringing the Nazi perpetrators to justice, yet in the Cambodian context this pretense did not exist. Not until much later, almost 30 years later. To make matters worse, because to the geopolitical climate of the region, the United States and Great Britain sought to block NGO attempts to get emergency humanitarian aid into the country.

With the developing global conscience, the situation, the exploitation of a country due to geopolitical interest, is simply not acceptable. The Cambodians that died under Pol Pot’s regime were human too and deserve the same rights, protection, and international support as any other person in the world. The movement to end such atrocities requires the active engagement of all countries to create a standard that such crimes are simply unacceptable and will not be tolerated. Geopolitics should never be a consideration when it comes to human rights violations. 

The Génocidaires: Rethinking Justice

Genocide is a crime and like any other crime it contains two parties: the perpetrators and the victims. When the story of a crime is told, it is the victim’s narrative that is remembered. Even now, 18 years after the genocide, the atrocities that were committed and the impact the have on the victims both in the past and in the present remains at the forefront of most discussions. Knowing these stories is tremendously important to the reconciliation process, to the memorialization process, and to ensuring that such atrocities are not repeated. However, these stories only reveal a portion of the picture. The stories of the perpetrators (or the génocidaires as they are called in Rwanda) also need to be told, particularly in the case of Rwanda, as they have been instrumental in the reconciliation and post-conflict reconstruction of the country.

The Rwanda génocidaires faced criminal justice on one of three levels. Those who were deemed most culpable and responsible for the genocide were brought before the International Criminal Tribunal for Rwanda in Arusha, Tanzania; those who were deemed to me mid-level perpetrators with relatively high levels of culpability faced the National Courts of Rwanda; and all other perpetrators were brought before the gacaca courts.

The gacaca courts are a community-based system of justice implemented to alleviate stress on the traditional justicesystem resulting from the high volume of prisoners. Between 2005 and 2011, more than 12,000 gacaca courts tried 1.2 million cases relating to the 1994 Imagegenocide. Despite its ability bring about swift trials, reduce the pressure on the severely overpopulated prison system, and document the genocide into case fact, the gacaca courts have been highly criticized. Human Rights Watch called them ‘Justice Compromised’ in their 2011 Report due the flaws in the trial process that lead to miscarriages of justice. However, given Rwanda’s post-conflict development, it becomes apparent that a tradeoff made in this regard. Although justice was not achieved to an international standard, the sentences brought down by the gacaca courts have greatly assisted in the post-conflict reconstruction of Rwanda.

Travail d’Intérêt Générale (TIG) is a community service organization for prisoners. Those génocidaires who confessed to their crimes were sentenced to reduced prison sentences and/or community service with TIG. In the wake of the genocide Rwanda was in ruins. Buildings, houses, and entire communities had been destroyed in the violence, leaving Rwanda in a perceived state of disrepair. Those perpetrators who have come to work for TIG are participating in development projects to reconstruct Rwanda – the very buildings, homes, and communities they helped destroyed during the genocide. One Rwandan described this very eloquently in reference to one community outside Kigali:

“The people who have made them homeless are the people who have brought them back to life.”

The perpetrators the genocide are quite literally rebuilding the communities they destroyed. They are building houses, schools, and community centers for the victims and in doing so, helping Rwanda transition to a stable post-conflict society. Moreover, this participation in community development has reduced the animosity between perpetrators and victims. Taking responsibility for the crimes that they have committed and actively helping to rebuild what was destroyed during the genocide has played a significant role in the reconciliation process in Rwanda. The victims are grateful for the rebuilding of their community and are satisfied with justice being achieved through community development.

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This brings to light an important question: what is more important, justice or reconciliation? Had these individuals been sentenced to 10, 20, or 30 years imprisonment and not had the option for community service many communities in Rwanda would still be destroyed. Moreover, the continued segregation of perpetrators and victims by imprisonment does not foster reconciliation between these two groups. That is not to say that those who were higher up in the chain of command, those who orchestrated the genocide, should get off with mere community service as their punishment. But it should be noted that these were not the majority. The vast majority of genocidaires were individuals acting not out of malicious premeditation, but rather out of fear and uncertainty resulting from the context of civil war, state power, and pre-conceived notions of ethnicity as Strauss demonstrated in his book The Order of Genocide. For these individual who have sincerely repented their actions, is the unity of Rwanda not more important? In these cases, should reconciliation and post-conflict development not be the ultimate goal? It can be argued that Rwanda is where it is today because of programs such as TIG, so how can we argue with such success? Can justice and reconciliation be achieved simultaneously, or are the mutually exclusive?

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law.  Currently she is travelling to Rwanda with Georgetown’s School of Foreign Service in Qatar with the Zones of Conflict, Zones of Peace Program.  You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Taking a Stand Against Sexual Violence

Sexual violence is the unspoken story of war. Images of causalities, death, and destruction only tell part of the story. Many individuals, both men and women, are the silent victims of sexual violence in the context of violent conflict. There have been documented cases of sexual violence in the 1994 Rwandan genocide, the conflict in the Balkans, as well as the ongoing cases of Syria and Libya (to name a few). Many of the victims do not speak out for fear of being ostracized by their communities; however, eight individuals in Kenya have decided to speak out, fight for their rights, and strive to attain justice.

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In Kenya, the post-election violence following the December 2007 election resulted in the deaths of approximately 1,100 people and the displacement of 600,000 individuals. However, many were also victims of sexual violence, a violence that was conducted by police officers and looters in the wake of the chaos created by the contended election results. The acts of sexual violence included, but are not limited to, rape resulting in HIV and forced circumcision. The nature of this violence, its widespread and systematic nature, amounts these crime to the category of crimes against humanity; yet, justice has not been achieved for these victims. Having waited five years for a government response, eight Kenyans have decided sue the Kenya government.

The Nairobi High Court will hear the case in which eight survivors of the sexual violence (two men and six women) are suing the Kenyan government. The grounds upon which this case is being prosecuted is on two counts: the failure of the Kenyan government to prosecute perpetrators of sexual violence and failure to both protect victims from the violence and to provide ex post facto services to the victims. Civil society organizations including the Coalition on Violence Against Women, the Independent Medico-Legal Unity, the Kenyan Section of the International Commission of Jurists, and Physicians for Human Rights, have been instrumental in supporting these victims in their search for justice. The trial commenced in February 2013. To date, the Kenyan government has not issued a formal apology nor have reparations been offered to these victims.

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Violent conflict creates a situation of mass chaos, insecurity, and uncertainty. There are those that take advantage of situations such as these, using it as an opportunity to perpetrate other criminal acts, including sexual violence. The problem is, however, that those being victimized by acts of sexual violence are civilians, innocent bystanders. The fact that these eight individuals are choosing to speak up is groundbreaking in three ways.

First, these individuals are spreading awareness of the prevalence of sexual violence in the midst of conflict, and in doing so, they are reducing the stigmatization of victimization by these acts. These individuals are entitled to the same rights as any other victim and in choosing to claim these rights, these victims are trailblazers in the fight to combat sexual violence.

Second, men as well as women are claiming victimhood. The fact that men have chosen to speak out is incredibly important because sexual violence against men carries a higher stigma than sexual violence against women. Moreover, in the criminal law of many countries sexual violence is written as a crime that can only be committed against a woman. Thus, the voice of these men is giving voice to the other side of this victimhood and is tremendously important in changing the way sexual violence is understood.

Third, the utilization of the Kenyan court, rather than resorting to violent conflict, demonstrates a movement towards faith in the Kenyan judicial system. Historically, the Kenyan judicial system has been criticized as highly corrupt, plagued with rampant impunity. However, since the last election, the Kenyan Constitution has been rewritten given complete independence to the judiciary. The restructuring of the court system was lead by Chief Justice Willy Mutunga who took great pains to insure the independence of the judiciary, retrain judges to eliminate impunity, and educate the general population as to the workings of justice system. The fact that these sexual violence victims are choosing to utilize the justice system demonstrates a movement towards increased trust in Kenya’s judiciary.

For more on sexual violence, see the following links on PeaceMedia:

http://peacemedia.usip.org/resource/weapon-war-%E2%80%93-women-make-movies

http://peacemedia.usip.org/resource/curbing-sexual-violence-drc-search-common-ground

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340