July 9, 2007 3:34 PM EST | Link

Hard-hitting commentary from Uganda's Moses Okello

Moses Chrispus Okello, who is head of the Research and Advocacy Dept. at Kampala's excellent Refugee Law Project, voiced some hard-hitting criticisms of the ICC in the presentation he gave at the international conference recently held in Nuremberg on the interactions between peace and justice.

He said this (please note that the italics and bolding in what follows are in the RLP version of the text, while the underlines are mine):

Over the last twenty years a deadly trail of heinous human rights violations has been committed by both the Government of Uganda and the rebels of the Lords Resistance Army. Uncountable numbers of people have lost their lives or been maimed, and almost the entire population has been uprooted and displaced at one point or another.

At times it seems as though no amount of stocktaking could ever come to terms with the magnitude of what has happened – but should that stop us from trying?

We at the Refugee Law Project think not. Yet, ever since the International Criminal Court seized itself of the situation in northern Uganda, many within the international and local communities have been complicit in shifting attention away from the true scale of what has been done to people and the range of actors involved, focusing instead on the infinitely more manageable task of prosecuting a handful of individuals from only one of the many parties to the conflict – and in the process ensuring the institutional interests of a fledgling global governance mechanism, the ICC.

Sadly, the proponents of the ICC have made their case in a way which has resulted in the creation of a false opposition between peace and justice.

They have pitted those of us who, on the basis of many years of on-going interaction with the many stakeholders in the conflict, argue that peace should always come first, and justice later, against a largely external set of actors who claim in a somewhat selfrighteous manner that peace will be the eventual outcome of justice.

We in the former category have been accused of condoning impunity - yet we could equally argue that justice along the lines pursued by the ICC also condones impunity, not least that of the government actors.

In ordinary circumstances, it would appear quite natural that peace and justice go hand-in-hand, following the argument that peace and justice are inseparable and one is a subcomponent of the other.

But this argument does not hold in a situation such as northern Uganda, where conflict is on-going and where the simultaneous pursuit of peace and justice only delays a peaceful resolution of the conflict (as we see in the current Juba peace talks) and contributes, in a very real and visible sense, to the continued internment of people in squalid camps for the internally displaced.

In the case of Uganda, the ICC indictments issued against the five top commanders of the Lords Resistance Army are always cited as evidence that the "peace with justice" position is tenable, based upon the claim that the threat of these indictments brought the LRA to the negotiating table.

While it may be the case that the carrot-and-stick threat of the indictments led the LRA to the negotiating table, this is merely speculation informed by opportunism. This is, after all, not the first time in the history of the conflict that the LRA and the government have attempted to talk peace. There were peace talks in 1994 and again in 2004. These talks were frustrated by the same government which referred the situation in northern Uganda to the ICC.

On the other hand, the rationale for a "peace first, justice later" position is quite simple: It is a matter of sequencing. And, sequencing should be distinguished from prioritization. If the preferred sequencing is peace followed by justice, this in no way signals that justice is a lower priority than peace – quite the opposite, in fact.

Whichever way you look at it, trying to ensure that the environment is conducive for a comprehensive pursuit of justice (i.e., that a peace deal has been struck, civilian authorities are back in place, clan structures responsible for traditional justice have re-grouped after decades of forcible dispersal, people are no longer living hand to mouth and are therefore better able to pursue justice for themselves) is definitive proof that you want real justice to be done. Rushing in a fashion which jeopardises the whole enterprise, on the other hand, must raise serious questions about the underlying objectives of those who claim to be pursuing justice and peace simultaneously.

...Many human rights activists seem unable to approach grave human rights violations without yielding to a retributive impulse; what else would justify developing sophisticated international tribunals, with their sometimes perplexing rules for the administration of justice, and attempting to apply these rules to all situations regardless of contextual specificities?

Rarely – if ever – have we invested in developing restorative mechanisms for addressing grave human rights violations, ostensibly because they are "incapable" of meeting the due process standards retributivists have invested so much in entrenching.

But what does this bode for the meaning of justice, which is central to the dilemma confronting Ugandans today?

In a 2004 report on "The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,” the Secretary General of the United Nations referred to justice as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.

Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant [emphasis added]."

...It is ... intriguing that in the pursuit of both peace and justice, we consciously adopt retributivists' conceptions of justice, as embodied in the mandate of institutions such as the ICC.

Not that the latter is per se problematic. What is discouraging, however, is the failure to think outside such institutional frameworks. I wonder whether you have ever considered the injustice created by institutions such as the ICTY, the ICTR, and now the ICC?

Have we ever considered the impunity created by such actors and the role of others (such as donors) in supporting impunity?

Have we considered that retributivist conceptualisations of justice, with their focus on the visible leaders who ordered gross abuses to be committed, in fact enable international actors to conceal their role in fuelling conflict? What impunity!

Could it be the case that George Bush and Tony Blair - who both supported the Ugandan military while the latter decimated people - are as culpable for crimes committed in northern Uganda as Joseph Kony?

Lastly, while we could debate this forever (and, in particular, the irony that some of the most ardent supporters of retributive justice and the ICC preach their secular gospel from a country which sees itself as somehow exempted from international justice mechanisms), I think the greatest justice one can deliver to a people living in conflict is to enable them to enjoy some sort of peace, and then to enable them to have a say in how they think justice should be done – AND TO WHOM!

Thank you very much.

Great work, Moses!

By the way, last Thursday (July 5) Uganda's Internal Affairs Minister Ruhakana Rugunda told reporters on 4 July that the Ugandan penal code would have to be changed to include in it a provision to use Mato Oput, a system of "traditional" justice practised by the Acholi community of northern Uganda, whose incorporation into the national legal system should help Ugandans of all political stripes convince the ICC that their justice system indeed can hold the LRA in a nationally acceptable way (and therefore, the IUCC can drop its cases.)

Rugunda said,

"The parties committed themselves to ensuring accountability and reconciliation... This will require all those who committed crimes to admit the crimes they committed. They will be taken through a transparent justice mechanism to be agreed upon."

Those who confess to war crimes under the Mato Oput mechanism will be required to ask for forgiveness and pay reparations.

On Friday, LRA spokesman Godfrey Ayoo weighed in, urging the International Criminal Court to annul war crimes charges against its top leaders, warning that they would prevent a final peace accord.

And here we have the response from some of those western-based rights activists whom Okello was writing about... Today, Human Rights Watch issued a statement saying,

Provisions for trials in the June 29 agreement between Uganda and the Lord’s Resistance Army (LRA) are welcome, but any national trials for the most serious crimes should include penalties in the event of convictions that reflect the gravity of the crimes, Human Rights Watch said today. Punishments that are fair and fit the crime are critical for ensuring justice and peace in northern Uganda.

Here's a question for my colleagues in HRW, since I sit on the organization's Middle Easst Advisory Committee: Why do they insist so strongly on not only trials but also punishments in the case of the LRA leaders-- but they never mention these alleged "necessities" when they are writing reports and statements about, for example, issues related to Israeli-Palestinian peacemaking?

And honestly, can anyone envision any kind of a workable peace process between Israel and Palestine or Israel and Lebanon if every perpetrator of a grave human-rights or IHL violation in those theaters would have to face trials and punishments as part of that process?

So why should matters be so different in Uganda? Is there just a teeny-weeny bit of colonialist thinking seeping in here?

July 9, 2007 2:16 PM EST | Link

"Justice" issues in Sudanese peace processes

Concordis International, which is "a small British organisation working to help individuals and groups in conflict situations to seek out paths towards lasting peace", recently published (in PDF form) a 24-page account of a consultation they recently held on a number of the different conflicts that have roiled the vast country of Sudan in recent years. The publication is titled Promoting Sustainable Peace in Sudan through Post-Conflict Justice and Reconciliation. It addresses post-conflict challenges in South Sudan, East Sudan, and Darfur.

(Before I proceed to give you more details of this latest Concordis paper, I'd like to quickly note this excellent publication titled Peace by Piece: Addressing Sudan's conflicts, that was co-produced last year by Concordis and the London-based organization Conciliation Resources. Its 23 different articles constitute is a true treasure-trove of information and analysis for anyone interested in war and peace issues in Sudan.)

Participants in the consultation whose contributions are summarized in the most recent Concordis paper include Andrew Rigby of Coventry University, Phil Clark of the University of Ulster, Micah Laila (the Assistant Bishop of Juba-- denomination unstated, but in the context probably Anglican?), Adam Azzain of the University of Khartoum, and a few others.

Here are the Executive Summary, and later the Recommendations, of their consultation. Please note I have added numbers to the 'bulleted point' in both texts, to facilitate discussion):

Executive Summary

This Concordis Paper is based on the content of a consultation held in the UK in March 2007, the goal of which was to consider Sudanese approaches to peace-building through post-conflict justice and reconciliation. In other states in Africa - South Africa and Rwanda among others - transitional justice mechanisms have played a central role in post-conflict reconstruction. Participants considered the examples of numerous ‘experiments’ of this nature to inform their discussion about the Sudanese context. In turn, the lessons learnt from African and international experiences fed into their reflections and conclusions about the most appropriate approaches to the pursuit of justice and reconciliation in Sudan.

Some of the consultation’s central conclusions are outlined below:

1. Though not all of Sudan is yet ‘post-conflict’, it is timely to consider ways of dealing with the past in order to respond to the present and prepare for the future.

2. Ultimately, national reconciliation can only be achieved when the root causes of Sudan’s conflicts are addressed in an holistic and just manner, particularly in terms of addressing inequalities in the distribution of wealth and power.

3. Given the complexity of Sudan’s conflicts, a package of complementary and co-ordinated transitional justice measures at different levels of society is needed.

4. At a national level, processes of justice and reconciliation should be developed through an inclusive national consensus, so that they enjoy ownership and trust across the diverse groups making up Sudanese society.

5. Sudan’s religious and cultural traditions emphasise forgiveness. Community conflict resolution practices administered by traditional authorities and religious leaders have many strengths and should be encouraged by the government.

6. Truth-telling about the past and creating a national record are important to reduce temptations for revenge and promote the rule of law.

7. Unconditional amnesty could encourage a culture of impunity and is unlikely to be acceptable under current international human rights conventions.

8. Accountability - meaning both retributive, restorative and redistributive justice - is fundamental to the achievement of broad-based reconciliation and peace.

9. Transitional justice processes should recognise the disproportionate burden of suffering borne by women in past and current conflicts.

In my judgment, most of these-- especially the first and last!-- are excellent points. However, the one that leaps off the page for me as being very far from helpful is the assertion in #8 that retributive justice is " fundamental to the achievement of broad-based reconciliation and peace." Points 6 and 7 are value judgments. I don't have enough familiarity with Sudan's social norms and realities to be able to make an informed comment on them. But I can certainly say those judgments should remain open to some questioning.

In general, the authors of this summary seem to want to "have it all"-- in terms of sustainable peace and retributive justice and full truth-telling , and give little recognition of the fact that in every single real-life situation of "transitional" justice, trade-offs need to be made among these goals... And they therefore give little indication of the criteria according to which such tough choices should be made.

My own views on these matters have been articulated in my recent book on the topic-- and also in these two earlier posts on TJ Forum: on 'justice and accountability', and on the value of truth-telling.

So here are the Recommendations voiced in this Concordis paper:

Continue reading ""Justice" issues in Sudanese peace processes"

July 9, 2007 12:14 PM EST | Link

The SCSL's Charles Taylor trial

I had an opinion piece in in last Thursday's Christian Science Monitor on the trial of Charles Taylor by the Special Court for Sierra Leone. (The article is also here.) This trial is being conducted not in the SCSL's own seat in Freetown, but in one of the ICC's unused courtrooms in The Hague.

In the piece I write the following text... Be aware, though, that I's inserted he mark-ups, formating, and hyperlinks in what follows into the version of this post that I earlier puiblished on my home blog, Just World News:

In 2002, when the UN was figuring out how to deal with the aftermath of the many atrocities committed during Sierra Leone's civil war, they tried to correct flaws that had become evident during the work of Africa's oldest war-crimes court, the International Criminal Tribunal for Rwanda (ICTR). Serious criticisms of the ICTR have been expressed – by myself and others – on five main grounds. Despite the excellent motives of ICTR's founders and officials, it has been:

1. selective in its choice of cases...
2. disconnected, both geographically and conceptually, from the primary stakeholders whom it seeks to serve, inside Rwanda...
3. very expensive, gobbling up international aid dollars...
4. largely unaccountable, either to the survivors of the Rwandan genocide or to anyone else,
5. [a]nd it has strongly polarized Rwandan politics.

So in Sierra Leone, the UN located its new war-crimes court inside the country, and, by making it a "joint" court with the national justice system, they tried to maximize the good effects it would have on that system. Also, alongside the court, the UN established a Truth and Reconciliation Commission, that could – like its earlier model in South Africa – help build national reconciliation while getting the truth out about earlier atrocities. (The Sierra Leonean TRC finished its work in 2004, leaving a mixed record of achievement.)

Regarding the "selectivity of indictments" at the SCSL, I'll note that it has indicted Charles Taylor and ten other individuals, with all the others apparently being Sierra Leonians. It has not, however, indicted any representatives of the numerous international shady businesses-- arms dealers, etc-- whose decisions and support kept the SL civil war going for so many long years. Indeed, in the article I note that one of Charles Taylor's closest business partners was the US televangelist Pat Robertson. Maybe, to make a truly effective point that these modern-era war-crimes courts will make sure no-one, however well connected, is above the law, the SCSL could have indicted Robertson on a charge of "aiding and abetting", at the very least?

As it is, though, don't all these courts-- and especially the ICC-- look worryingly like European-dominated institutions that seek to haul over the coals some naughty Africans while completely ignoring the role that people of European heritage have played for centuries, and all too often continue to play, in fomenting, enabling, and conniving in the commission of atrocious violence in Africa?

Then, regarding the expense of the SCSL, I did try to do find out the size of its global budget. The best estimate I could come up with, from combining the figures in various annual reports and doing one needed act of interpolation (for FY2003-04), was that for its whole duration, 2002-2009, SCSL will have budgets totaling about $200 million... and that, to try a total of 11 indictees. Which would be a per-case processing cost of around $18 million. This would be a considerable improvement over the ICTR, whose per-case costs were at one point running at about $43 million... But the figure still looks outrageous and excessive.

(Per-case processing costs for the many, often very complex amnesty applications processed by South Africa's TRC came to just under $4,300-- see my Amnesty After Atrocity book, p.193.)

You might also want to take into consideration that in 2004 the GDP per capita in PPP$ for Sierra Leone's 5.3 million war-battered people was $561, while for Liberians it was literally unmeasurable because of the lengthy perpetuation of post-civil war impoverishment and social breakdown in the country. (In the Netherlands, meanwhile, it was a very comfortable $31,789.) In 2004, Sierra Leone received a total of $359.7 million of overseas aid.

In another note on the expenses of the Charles Taylor trial as such, AP reported on Friday that SCSL acting registrar Herman von Hebel had told reporters that the court had decided to allot Taylor a budget of some $100,000 per month to conduct his defense.

Tha report added:

"It is almost three times as high as the other cases at the special court and (up to) two times higher than at the Yugoslavia tribunal," Von Hebel told reporters in The Hague.

... Taylor is entitled to receive the money because the court has ruled he is indigent, meaning he cannot pay for his own defense, despite prosecutors and U.N. experts suggesting he has millions of dollars stashed in bank accounts around the world.

"We believe there are tens of millions," said prosecutor Stephen Rapp.

... Investigators are working to track down Taylor's alleged loot. If it is found and can be linked directly to him, the court has the power to make him pay back money he has been given to fund his defense.

Taylor's new defense team is expected to be in place in time for his trial's scheduled resumption on Aug. 20.

March 13, 2007 2:46 PM EST | Link

'Amnesty' book chapter now on the web

Katherine McNamara, the editor of the online magazine Archipelago has now published the concluding chapter of my book Amnesty after Atrocity?: Healing Nations after Genocide and War Crimes on the web, with my permission and that of the publisher. So now you can read it here.

The hope is, obviously, that you'll be so intrigued by the arguments that you'll go and buy the whole book. Then you can come and discuss it here.

March 12, 2007 10:25 AM EST | Link

What do we mean by 'justice' and 'accountability'?

Two of the key watchwords used by people who argue for war-crimes prosecutions in the aftermath of atrocity are the need for "justice" and "accountability."  Yet it seems to me that many of these people construe both these concepts in a narrow and essentially backward-looking way that often has the effect of keeping people in communities that are struggling to escape from very serious recent, or even ongoing, political conflict mired in the grievances and blame-games of the past rather than investing their energies in figuring out how to build a rule-of-law-resecting political system going forward and then working together to build it.

This is one of the major conclusions I have reached after reflecting deeply on the findings of my recent book Amnesty After Atrocity?: Healing Nations after Genocide and War Crimes.  In the book I compared the effectiveness of the policies that three sub-Saharan countries adopted at the point, in the early 1990s, when they were trying to bring to an end long-running political conflicts that had been marked by the widespread commission of very grave atrocities.  The three countries were Mozambique, whose two major political movements in late 1992 concluded a General Peace Agreement (GPA) that ended the civil war that had beset their country since 1977;  South Africa, whose major political movements agreed on the holding, in April 1994, of the country's first-ever one-person-one-vote democratic election, bringing to an end 40 years of apartheid and 350 strife-torn years of colonial rule; and Rwanda, where in July-August 1994 the Rwandan Patriotic Front (RPF) won a decisive battlefield victory that brought to an end four years of armed civil conflict that culminated in the three months of the anti-Tutsi genocide committed by their 'Hutu Power' opponents.

As each of those conflicts came to an end (or, more realistically, a conflict termination 'opportunity'), these countries' new, post-settlement rulers each pursued a very different approach to the challenge of dealing with the legacies of the recent atrocities.  In Rwanda, both the national government and the international community pursued policies dominated by the need for war-crimes prosecutions.  In Mozambqiue, the post-GPA government was bound by one of the provisions of the GPA that stipulated that a blanket amnesty be granted to all who had committed criminal acts during the civil war.  Instead of launching any war-related prosecutions, the government focused on disarming and demobilizing as many as possible of the former combatants from both sides and reintegrating them as quickly as possible into normal civilian life.  This policy, known as 'DDR' in standard U.N. jargon, was enthusiastically supported by the international community which underwrote most of the funding needed for it.  In South Africa, the post-democratization government was similarly bound by an agreement concluded during the pre-settlement negotiations that promised that an amnesty would be provided to all who had committed criminal acts during the conflict.  In South Africa's case, subsequent legislation spelled out that these amnesties, and the resulting immunity from criminal prosecution, would be offered only to those who individually applied for them to a special committee that was part of the country's post-apartheid Truth and Reconciliation Commission (TRC), and then only if they could satisfy that committee that (1) those acts had been been politically motivated, and (2) they had also shared fully with the committee everything they knew about such politically motivated criminal acts committed by themselves or others during the apartheid era.  So the deal there was amnesty in return for truth-telling.

In my book I examined these varying approaches to dealing with the perpetrators of past atrocities.  In addition, since I was doing this work some dozen years after those respective political transitions, I sought to to understand and analyze the effectiveness of those approaches over those crucial post-conflict years.  One early challenge I came up against was to enquire: effectiveness at doing what?  Now, I know that many lawyers and legal theorists are reluctant to apply extrinsic yardsticks to the work of juridical institutions, which they hold somehow to exist in a rarefied zone of pure deontology far from the grimy world of politics or history.  But for my part, since I am a long-time participant in the international human-rights movement, I would hope at the very least that the policies adopted by the government of any country still reeling from a period of widespread atrocity commission would lead to a measurable and sustained improvement in the rule of law situation within that country. 

As it happens, there is an institution in New York City that, on a world-wide, country-by-country basis measures this every year.  This is Freedom House, which each year assesses each country on a two-headed scale, giving it one number for "political rights" and another for "civil liberties".  It is a very specialized way of ranking.  The best score a country can win is "1; 1", and the worst is "7; 7"; therefore, there are potentially twelve total intervals of variability between the top score and the bottom score. I checked the Freedom House rankings for the the three countries I had studied, for the years 1994 and 2006 (and for several years between), and I discovered the following:

Continue reading "What do we mean by 'justice' and 'accountability'?"

October 27, 2006 4:27 PM EST | Link

Sins of the predecessors

Should the largely pauperized population of today's Iraq be held responsible for making 'reparation' payments to people and institutions in Kuwait and elsewhere that were damaged by Saddam Hussein's August 1990 invasion of Kuwait?

Should the extremely poor population of today's South Africa be held responsible for making 'reparation' payments to people and institutions in even poorer Mozambique, Angola, Namibia, and elsewhere that were damaged by the apartheid regime's decades-long aggressions against those countries?

Should the largely pauperized population of today's Iraq be held responsible for making 'reparation' payments to people and institutions in Iran that were damaged by Saddam Hussein's September 1980 invasion of Iran and the very lengthy war that ensued and that also involved Iraq's largescale use of chemical weapons against Iran?

I would say that the people damaged in all three of these cases have roughly equivalent moral claims to some form of 'reparation'. But the problem is, of course, that the people now governing in South Africa (and 'governing' as best they can in Iraq) are people who were themselves majorly the targets of the earlier, abusive governments in those two places. So it is hard to see how these new successor governments can be held responsible for the sins of their predecessors... And indeed, in South Africa, the question of the country paying financial recompense to the peoples of Mozambique, Namibia, and Angola has never really to my knowledge come up.

And neither has the question of Iraq paying reparations to Iran.

All of which makes it fairly disquieting for me to have learned recently that the UN Compensation Commission that was established in 1991 with the purpose of "process[ing] claims and pay[ing] compensation for losses and damage suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait" has continued until now on its course of turning over to Kuwait and other claimants regular payments funded by the UNCC's expropriation of five percent of the proceeds of Iraq's oil exports.

Just yesterday, the UNCC issued a press release describing proudly how in the current quarter it has disbursed $417.8 million to claimants in seven countries. The countries that got the biggest shares of those payments? Kuwait, which got $335.5 million, and Saudi Arabia, which got came in a distant second with $30.3 million.

A factsheet issued by the UNCC some time earlier reported that "Awards of approximately US$52.5 billion have been approved in respect of approximately 1.55 million ... claims", and at that point around $21 billion had been disbursed. As far as I can see from the charts I viewed, the lion's share of that money has gone to Kuwait.

Now I know Saddam's regime was bad, and caused much damage to Saudis and Kuwaitis. And it is possible (I suppose) that there, somewhere, some indigent Kuwaitis who benefit a lot from these reparations. But Kuwait's GDP per capita in 2005 was $17,421. It seems quite crazy to me to expect that Iraq's hard-pressed people should still today-- 15 years after the liberation of Kuwait from Saddam's rule, and more than three years after Saddam's overthrow at home-- be paying these reparations to Kuwait.

Doesn't anyone in the international "community" remember the effect the reparations exacted from Germany after WW1 had in helping to incubate Nazism among the Germans? Is this a good way to build stability in the Gulf region today?

[Cross-posted at Just World News.]