“Hunger for Justice:” A Tale of Three Cities

 

Berlin, Germany—September/October 2007

It is the most indescribable feeling to walk on the same cobble-stoned streets where soldiers once marched to the cry of Heil Hitler! over sixty years ago as you make your way to the Berlin Parliament—the quietly grand and beautiful Abgeordnetenaus—to participate in a conference dedicated to the International Criminal Court’s (ICC) fight against impunity for the world’s worst crimes. It is nothing short of marveling awe as you recall the recent history of today’s breathtakingly diverse, bold, and beautiful Berlin—a city once torn in two with a divisive, glaring Wall separating East and West after World War II. It is simply astounding to see this city—once the headquarters of the Nazi government responsible for the calculated mass slaughter of millions—now the proud and deserving second home of international justice (IJ). For those of you who asked me why the conference on the ICC’s challenges and successes was being held in Berlin (as opposed to IJ’s first home—The Hague), I can only say that Germany’s capital city is living proof of the advancement of international law and justice.

And where are we—Americans—on the advancement of IJ? Has the U.S. shifted its reactionary and counterproductive policy toward a now adolescent ICC? That was, essentially, the topic of my speech at the Berlin Conference. Imagine trying to explain to a hall full of international organizations, civil society leaders, and German officials why the U.S. government, once responsible for the Nuremberg Trials prosecuting Nazis for their crimes, is now a challenge to a Court that is the natural and necessary evolution of Nuremberg. Not a simple task. Far less simple with only twelve minutes at the podium.

As promised, I emailed a number of you snippets of my speech. I will not regurgitate it here—I have made my position and supporting analysis of whether the U.S. is in fact shifting its policy toward the ICC clear in previous blog entries. Sufficed to say that my goal in Berlin surpassed a simple explanation of U.S. foreign policy. I was far more eager to articulate a fundamental truth that seldom makes it past the alienating foreign policies our government enforces in the IJ world: when it comes to the American public, there is majority support for the ICC. There is recognition of our moral backsliding, in particular in the years following September 11, 2001. And above all else, in the moving and eloquent words of ICC Judge Hans Peter Kaul on the last day of the Berlin Conference, there is a hunger for justice.

As I said in Berlin, I believe the American people are not only passionate but equally compassionate. We too are showing a ferocious appetite for peace, justice, and accountability. Engage us on the crises Darfur or Northern Uganda and you will experience our resolve and compassion. Galvanize us through targeted advocacy and you see our empathy and action. Challenge us and behold a people who are not willing to give up on their country’s once proud commitment to the rule of law. After trekking through the political analysis, I wanted the audience to know that if our current Administration has thus far failed to grasp the common goals and values that the United States has historically shared with those of the ICC, this has been far less the case with the American people, and increasingly, members of the 110th Congress who represent them.

Washington, D.C.—November 2007

Fall is by far the most beautiful season in Washington, D.C. One need only take in the rich colors of falling leaves amidst the dizzying aesthetic juxtaposition of national monuments, quiet, rowhouse-lined streets, a bustling downtown, and an ever calm Potomac River to see why this short lived season beats a universally admired, cherry blossom-adorned spring.

Never has there been a more exciting fall in D.C. for an IJ advocate. In Berlin I had announced to the audience that the 110th Congress was on fire. Upon my return to D.C., I was happy to see I had not overstated the case to my European peers. All year we have seen Congressional leaders push for a number of bills including but not limited to the Child Soldier Prevention Act, the Darfur Accountability and Divestment Act, and the Genocide Accountbility Act; introduce and co-sponsor a resolution calling for the recognition of the Armenian Genocide (more on this soon); and hold a slew of Congressional hearings tackling questions such as, why are such a large number of war criminals (that’s right—war criminals) living and prospering in the U.S.? (my guess: palm trees + no domestic laws to end impunity = great place to retire).

Regardless of which side of the Atlantic we’re on, it looks like this fall the prevailing trend is a renewed call to fight the good fight: the fight against impunity. In the equally eloquent words of Senator Dick Durbin who chairs the Senate Judiciary Committee’s Human Rights and the Law Subcommittee,

“Repressive regimes that violate human rights create fertile breeding grounds for suffering, terrorism, war, and instability. In our time, the world is a much smaller place, and the social ills caused by human rights abuses know no borders. We will never be truly secure as long as fundamental human rights are not respected.”

New York, New York—December 2007

Comprised of one delegation from each country that has joined the Court, the Assembly of States Parties (ASP) currently boasts 105 ICC member states and serves as the Court’s oversight body. Since the Court’s inception in 2002, the annual ASP meeting has been held in The Hague, Netherlands, where the Court sits. This year it’s being held in right here in the U.S., at the United Nations (U.N.) in another seminal IJ city: New York. For the next two weeks, my IJ colleagues and I will join government delegates from over 150 countries to participate in an ambitious agenda adopted by this 6th ASP. From the election of three new judges to kick-starting the work of the Trust Fund for Victims, preparing for the highly anticipated Review Conference to take place in 2009, and fittingly, addressing US-ICC relations, this ASP embodies the urgent energy we all feel as the Court grows, Americans prepare to vote, and the world waits to welcome a new year with the greatest promise of justice yet.

Before the holiday rush sets in and dinner parties take precedence over political will, I hope you take a moment and reflect on the significance of this past year. With the imminent arrival of 2008, we will once again have the opportunity to demand our voices be heard on Capitol Hill and at the White House. If we are sincere in our efforts to end the genocide in Darfur—if we are genuine in our outrage when we see children with amputated limbs in war-torn Congo—if we truly believe that the U.S. must contribute to future IJ successes, not challenges, then we need to ensure that this hunger for justice we feel does not fall to the wayside amidst the frenzy of elections and party politics next year. Many of the presidential candidates have made positive and promising references to justice, accountability, and the ICC—let’s make sure these references turn into an unwavering resolution to reunite us with the rest of the world on a cause that we should have been championing all along.

I wish you all a safe, peaceful, and beautiful fall.

 

 

 

 

 

 

 

 

 

 

With Gratitude and Souvenirs

After weeks of flying between time zones and being convinced that goose bumps will become a permanent part of my physiological state if I continue this line of advocacy, I am back home in D.C. with two very important things: gratitude and souvenirs.

My profound gratitude for all of you who asked questions and shared your comments through my Contact page after my first Berlin posting. Your honesty, articulate curiosity, and general well wishes added a rich substantive depth and moral character to the entire trip. And as for the souvenirs, I humbly offer you airline napkins, notepads from tables in Berlin’s Potsdamer Platz coffee shops, and random receipts for chocolates, all scribbled with notes and bullet points for my next posting…bear with me as I put them all together along with speech snippets, pictures, and answers to your questions in an attempt to capture an indescribably inspirational ICC Conference in the equally indescribable and inspirational city of Berlin—now officially the second home of international justice. Much more, very soon!

I’m taking you to Berlin

Berlin, Germany, that is (apparently there is also a Berlin, Pennsylvania).

I will shortly be off to speak at a conference titled, The International Criminal Court at Work: Challenges and Successes in the Fight Against Impunity, hosted by Human Rights Watch, Amnesty International, the German Red Cross, and the Unite Nations Association of Germany. Over the last few months I’ve thought long and hard about my speech, the topic of which is “shifts in U.S. attitudes toward the International Criminal Court(ICC).” As you may have noticed, I have a view or two on this topic. But I’d like to hear your views as Americans on the ICC and take them with me to Berlin. So take a moment to email me and stay tuned…

Air or Water, Part II

Click here for Part I

Part II: Vital Voices

“Justice is an indispensable ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution. Thus Peace and Justice go hand-in-hand.”

–Antonio Cassesse, former President of the International Criminal Tribunal for the former Yugoslavia (ICTY) , November 1995.

Fast forward twelve years and two continents since Judge Cassesse’s famous words at the signing of the Dayton Peace Accords. Northerners want justice for past atrocities. Victims continue to demand justice. Female victims demand justice. These were the news headlines after the release of two field studies conducted by the United Nations (U.N.) and the International Center for Transitional Justice (ICTJ) on Northern Ugandans’ attitudes toward peace and justice. Both reports found through interviews and other firsthand fact-finding that the vast majority of Northern Ugandans are not willing to go without justice as their government and the Lord’s Resistance Army (LRA) participate in on-again, off-again peace talks to end the twenty-year civil war. Let me repeat that for all of those well-intentioned folks who have been fueling the misleading and counterproductive peace versus justice debate: No peace without justice. And equally true, no justice without peace. Demanded by Northern Ugandans themselves. Perhaps now we can move on to a more nuanced debate, starting with what kind of justice do Northern Ugandans want?

Here again peace and justice advocates alike should pause before repeating the mistake of speaking on behalf of Northern Ugandans as we push for our respective agendas from our neat little offices in D.C., New York, and London. Any conflict resolution expert worth his/her salt will tell you that a sustainable, deep-rooted peace must first and foremost give voice to the affected population. The U.N. and ICTJ reports make this point clear and depict the painfully obvious need for peace and justice advocates to step outside of a black and white approach to this incredibly complex conflict and focus instead on the synergy between peace and justice (that’s and, not or). For an international justice (IJ) advocate, this means recognizing that nowhere in the reports does any one justice mechanism—from criminal prosecutions at the International Criminal Court (ICC) to traditional Acholi cleansing rituals—fully satisfy Northern Ugandans. The ICC has been investigating LRA atrocities for three years now and has issued arrest warrants for the LRA leadership, including founder Joseph Kony. According to the ICTJ report,

“Prosecutions were seen [by Northern Ugandans] as the best mechanisms to deal with those responsible for the [gravest] crimes, including domestic prosecutions (28%) and prosecution by the International Criminal Court (29%). Approximately 60% of respondents had previously heard of the ICC, and 67% believed that the ICC should be involved in responding to the atrocities that have been committed in Northern Uganda.”

But thanks to Ugandan President Museveni’s political craftiness and the LRA’s manipulation of the ongoing peace talks, a significant percentage of Northern Ugandans also worry that the ICC’s arrest warrants for the top LRA leadership will interfere with the current peace talks. This very real and understandable sentiment should not, however, be exploited by others to justify an anti-ICC stance—Northern Ugandans themselves have made clear that justice delayed is justice denied. The problem here is not an impartial international criminal court that is committed to making Northern Ugandans’ demands for justice a reality. The problem here is the brazen lack of genuineness with which both President Museveni and the LRA are “negotiating” peace on behalf of Northern Ugandans.

The LRA’s continued demands for the ICC arrest warrants to be dropped cannot come as a surprise to anyone. After all, which war criminal has ever wanted to end up in a jail cell for twenty years’ worth of amputated limbs, summary executions, and the mass terrorizing of an entire region??? But less obvious is President Museveni’s agenda—a former rebel turned leader whose presidential tenure is as long as his war with the rival LRA. Since the involvement of the ICC, President Museveni has pushed for the LRA’s prosecution at the ICC, then retreated to promising blanket amnesty to the LRA leadership, and now proposes domestic “courts” in lieu of the ICC to try the LRA. Why is that? Well there is the pesky little detail of Museveni’s own military, the Uganda People’s Defense Forces (UPDF), being just as complicit in the civil war in the Northern as the LRA has been. So much so that in both the U.N. and ICTY reports, Northern Ugandans overwhelmingly demanded UPDF perpetrators to be held accountable for their crimes as well.

But Museveni has made no mention of accountability for his own forces. Rather, he has continued to portray the ICC arrest warrants—which he himself sought when he referred the case to the ICC—as the major obstacle now to securing a peace agreement with the LRA. And yet Article 16 of the ICC’s treaty expressly allows for a U.N. Security Council-invoked renewable suspension of any ICC investigation. So if President Museveni truly believes that the Court’s arrest warrants are impeding the peace talks, he is well within his legal rights to invoke Article 16. Instead, in the two years since the ICC’s issuance of the arrest warrants, President Museveni has never attempted to follow a simple legal procedure that would demonstrate his good faith to both the Ugandan people and the international community. These days Museveni has abandoned his rhetoric of amnesty and is instead suggesting the creation of domestic courts to try the LRA leadership and other lower-ranking perpetrators. Creating domestic Ugandan courts to try the LRA would be a welcome development–ideal in fact, given the limited mandate of the ICC. But in the words of Human Rights Watch’s Elise Keppler and Richard Dicker,

“[A]ny national alternative to an ICC trial must demonstrate a genuine ability and willingness to conduct the investigation or prosecution. There will also be a need for other mechanisms to ensure accountability: trials for lesser offenses, a truth commission, and, where appropriate, traditional justice measures.”

“Genuine ability and willingness” means putting the needs of Northern Ugandans first. It means recognizing that when it comes to those LRA leaders most responsible for the worst crimes committed during the civil war, the ICC is still the most viable (and impartial) venue. It means committing to investigating and prosecuting UPDF war crimes in addition to the slew of lower-ranking LRA rebels in any future domestic court. And it means special considerations for child soldiers and others forcibly recruited by the LRA. Simply put, it means good faith on the part of Museveni’s government to deliver its people both peace and justice. But my guess is that a government that can’t demonstrate its commitment to the rule of law—another cornerstone of peaceful societies—cannot be trusted to negotiate or honor a peace agreement, much less provide justice for a people who desire and deserve it most.

Last week, the State Department’s Assistant Secretary for African Affairs, Dr. Jendayi E. Frazer, remarked on growing U.S. impatience with the Northern Uganda peace talks and remarked that if the talks fail, then the U.S. will support the LRA leadership’s arrest and transfer to the ICC. I would like to humbly point out to Dr. Frazer that we should already be cooperating with the ICC to enforce the arrest warrants against four of the most brutal war criminals in the world—the LRA leadership is no less guilty of war crimes simply because it is humoring peace talks at the moment. Furthermore, President Museveni himself has repeatedly made the same “if no peace then ICC warrants” argument. But using the ICC arrest warrants as a stick when they suit you and discrediting them when they don’t isn’t doing anyone justice. Still, I commend Dr. Frazer for recognizing the significant role that the ICC arrest warrants can play in ending the violence in Northern Uganda—allowing Museveni and the LRA to exploit the peace talks for more time and bargaining chips would be tantamount to seeking Northern Ugandans’ voices only to have them fall on deaf ears.

If human beings are to survive and thrive, we must have our most basic needs: air, water, peace and justice. For the people of Northern Uganda, twenty years is too long to go without the last two. The peace versus justice debate is a classic red herring used by rebels and leaders alike who don’t find either peace or justice to suit their interests. It’s time to stop indulging them.

• Click here to read the full ICTJ Report, “Attitudes about Peace and Justice in Northern Uganda.”
• Click here to read the full U.N. Report, “Making Peace Our Own: Victims’ Perceptions of Accountability, Reconciliation, and Transitional Justice in Northern Uganda.”
• Check out IJ Wire for latest news on the Northern Uganda situation.

Goose Bumps

We seem to hear the word “prosecutor” all the time here in the U.S. and our connotation of the word is seldom a positive one. Maybe it’s because names like Johnny Cochran, Kenneth Starr, and Mike Nifong end up on the six o’clock news on a far too frequent basis. But the often controversial reputations of individual prosecutors here in the States aside, being in charge of “putting the bad guys away” is not exactly easy. It’s even more challenging if, say, you’re a prosecutor in your early twenties and your very first case involves trying a group of war criminals for genocide. Or if you can’t picture that, imagine you know who the bad guys are, you have evidence of their crimes, and witnesses are eager to testify, but you don’t have a police force to actually arrest them. That would be like a Law and Order episode ending with the characteristically somber investigators walking away from the suspects they tried so hard to nab because the NYPD doesn’t answer to them. Tough job indeed.

Henry T. King Jr. is both an extraordinary and ordinary American.  He is extraordinary in that at 88 years of age, he is still the embodiment of the kind of fierce idealism that keeps us in humbling awe and admiration. And yet Mr. King is also incredibly ordinary—he is like every American who believes that rule of law, justice, and accountability are not just side issues that come and go with terms in office, but rather a core set of values upon which this country was built. Mr. King reminds all of us that sixty two years after the Nuremberg Trials, Americans still champion justice and accountability. This remarkable man is one of three surviving prosecutors who made history by trying Nazi criminals for the horrors of the Holocaust during World War II. That should get the hair on the back of your neck raised. Get ready for the rest of you.

Luis Moreno-Ocampo must wonder why a country that can boast of its Nuremberg legacy has taken such a bizarre, hyper-sensitive position vis-à-vis the International Criminal Court (ICC), where he’s employed as the Chief Prosecutor. A native Argentinean and the ICC’s first Prosecutor, Mr. Moreno-Ocampo has spent the last five years building cases against the leaders of the Lord’s Resistance Army in Northern Uganda, rebel warlord Thomas Lubanga Dyilo of the Democratic Republic of Congo, and two Sudanese suspects accused of perpetuating the Darfur genocide.

And Mr. Moreno-Ocampo remembers, like many international justice (IJ) advocates, a different (yet equally political) era where the U.S. didn’t make undermining the existence and functioning of the first ever international criminal court an actual foreign policy objective. But Mr. Moreno-Ocampo’s job is particularly hard—not because it’s a little difficult to gather evidence and interview survivors in four different countries. Or because the ICC is still young and there is too much to do with too little time, money, and staff to do it (notwithstanding their laudable efforts). No, Mr. Moreno-Ocampo faces a far greater challenge that would probably make most prosecutors retire to private practice: he doesn’t have a police force to execute the arrest warrants he issues.

What do I mean, you ask? Put simply, when the ICC’s treaty was negotiated back in 1998, the majority of countries (the U.S. included) decided that giving the ICC a police force would be conceding too much power. Instead, the ICC relies on member states and the international community at large to carry out arrest warrants of the world’s worst criminals. What happens if countries don’t step up or are committing the atrocities themselves? Well, then you get the sickening story of Ahmad Harun, the Sudanese Minister (of Humanitarian Affairs!), strolling through the same Darfur villages that he orders burned and their inhabitants raped, tortured, and killed.

Being an international justice nerd, I always wondered what it would be like if the world’s prosecutors—past and present—came together and said enough. Enough to genocide. Enough to pre-adolescent kids being forced to fight on the front lines as child soldiers. Enough to rampant sexual violence against women in conflict. And enough to time ticking as we all watch and do nothing. This past week, nine remarkable men with the toughest job in the IJ world did just that—they gathered at the First Chautauqua Conference in New York and issued the Chautauqua Declaration. So as to ensure my promise of goose bumps, I’ve taken the liberty of pasting (and bolding) the Declaration below (courtesy of the American Society of International Law(ASIL)).

The Assembled International Prosecutors, both Past and Present

Celebrating the 100th anniversary of the Hague Rules of 1907;

Remembering the legacy of our Nuremberg colleagues;

Recalling the principles of Nuremberg;

Noting the importance of the rule of law in facing down impunity;

Understanding the need for a family of nations united for peace;

Appreciating that the legal tools are now in place to prosecute those who bear the greatest responsibility;

Aware of the need to seek justice efficiently and effectively;

Noting that international humanitarian law still remains the cornerstone to controlling international and internal armed conflict;

Recognizing that both truth and justice create sustainable peace;

Highlighting that justice is not an impediment to peace, but in fact is its most certain guarantor;

Now do solemnly declare to the world  

That ending impunity by perpetrators of crimes of concern to the international community is a necessary part of preventing the recurrence of atrocities.  

That it is no longer about whether individuals agree or disagree with the pursuit of justice in political, moral or practical terms; now, it is the law.

That the challenge for States and for the international community is to fulfill the promise of the law they created; to ensure the arrest and surrender of individuals sought; and in that light;

That Ratko Mladic, Radovan Karadzic, Felician Kabuga, Joseph Kony, leader of the Lord’s Resistance Army in Uganda, Ahmed Harun,  the Sudanese Minister who organized the system of persecution and attacks against the civilians in Darfur, and all others not listed here and are sought by international justice, be arrested and  surrendered to the appropriate court, tribunal or chamber;

That States are reminded of the words of Martin Luther King Jr. that “the arc of moral justice is long but it bends towards justice.”

That the world community take note of the words of Justice Robert H. Jackson at Nuremberg: “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law.”

You’d have to be made out of stone not to feel the singular weight of this Declaration. It is the culmination of a century of international justice norms, mechanisms, and advocates. It captures the voices of three generations of hope, idealism, and an unwavering commitment to making “Never Again” a reality. True, the Declaration won’t make the Ahmad Haruns of the world appear in a cell in The Hague tomorrow. But something tells me if these nine men have anything to do with it, judgment day for the world’s most violent war criminals is a lot sooner than we think.  

But as remarkable and committed as the prosecutors are, they alone cannot fight and win against the kind of evil that leaves millions of innocent civilians in conflict displaced, starving, or dead. Thousands of miles away from the ICC and other international tribunals, we have to do our part too—it’s September and school isn’t the only thing back in session. The U.S. Congress will resume its legislative activities after the Labor Day weekend, and this fall is bound to be a flurry of activity on Capitol Hill. To that end, here are two quick and easy things you can do to stay informed, push for more constructive IJ policies, and make sure your voice is heard in D.C.:

1. Check out the website(s) of your presidential candidate(s) of choice and see if they support the ICC and core IJ laws such as the Geneva Conventions. If they don’t, send them an email—now is the time to get their attention on issues that matter.

2. Call your Representatives in the House and ask them to support the passage of the Genocide Accountability Act of 2007—a bill that will (finally) allow the U.S. to prosecute those who have committed genocide in other countries and are currently on U.S. soil. Click here for Senator Durbin’s summary of the Act and its implications if passed.

Some of these prosecutors are in their eighties. Some of them have stared into the eyes of the world’s most brutal war criminals. All of them still fight for a world free of war crimes, crimes against humanity, and genocide. So should we.

For news articles on the Chautauqua Conference and Declaration as well as Mr. King’s criticism of counterproductive U.S. policies on key IJ issues, check out IJ Wire.

Listen to Kate, people

Every once in a while I find myself reading an opinion piece that possesses the rare but very precious three C’s: clear, conscise, and compelling. Kate Karacay’s article on our Presidential candidates and the International Criminal Court (ICC) in the Des Moines Register today was just that.

While I fine-tune Part II of Air or Water (also known as my commentary on the peace vs. justice debate in Northern Uganda), check out Kate’s piece, also available on IJ Wire. As Kate points out, now is the time to let the candidates know that across party lines, we support justice and accountability for the world’s worst crimes. And if you’re not a resident of Iowa, you’re not off the hook—doing our part to let the Presidential hopefuls know that Americans want a more constructive, cooperative, and good-faith U.S. policy on the ICC is one more concrete step toward promoting justice and accountability for the world’s worst crimes. 

And if you come up with another “C” adjective (crisp? cogent? clarifying?)—let me know.

  

Time to Follow Brian on Darfur

When I met Brian Steidle in late 2005 at a conference in Santa Fe, New Mexico, I was struck by the singular gravity in his countenance. It seemed as if the collective anguish of an entire population thousands of miles away was etched in his quiet, earnest face. Brian had good reason to be somber: he had witnessed the Darfur genocide firsthand the year before.

Located in the Western part of Sudan, the Darfur region was once home to six million inhabitants known as the Fur people. By 2004, this previously unfamiliar place gained international infamy as an area devastated by a relentless, state-sponsored campaign of ethnic cleansing. Since January 2003, gangs of militia called the Janjaweed (meaning “men on horseback” in Arabic) have razed thousands of villages, systematically raped women and girls, stolen livestock and other forms of livelihood, and mutilated and killed men and boys. As many as 500 Darfurians die each day. Since the violence began, 400,000 Darfurians have been killed by the Janjaweed and 2.4 million have been displaced (often in neighboring and equally fragile Chad). Millions more are vulnerable to starvation and disease. Add up all the numbers and you’re left with nearly every person in an area the size of Texas affected by the violence.

The Sudanese government has long denied any involvement in the Darfur atrocities, but the international community knows otherwise. Still, for the first few years of the crisis, there was no solid proof of collaboration between the Sudanese government and the Janjaweed. That all changed this past spring—the International Criminal Court (ICC), which has been investigating the Darfur atrocities, has made a critical evidentiary link between Janjaweed leaders and the Sudanese government officials who support their crimes.

A U.S. Marine at the time, Brian went to Darfur in 2004 as one of three unarmed American observers accompanying the African Union’s (AU) understaffed and overstretched monitoring force on the ground. Once there, Brian took hundreds of pictures to document what he was witnessing: everyday Darfurians killed, maimed, or haunted by the death, mutilation, and murder of neighbors and family members. When he came back to the States, Brian brought the images with him and set out on a nationwide campaign to show his pictures and compel his own people and government to act. Last week a new documentary by Annie Sundberg and Ricki Stern of Break Thru Films was released, aptly titled “The Devil Came on Horseback”(you absolutely m.u.s.t. click on this link). The film captures Brian Steidle’s remarkable journey and shows audiences why Brian’s countenance is far more serious than most people his age. As for the rest of us, the film serves as a stark reminder of just how little has been done to stop a genocide that has gone for longer than a U.S. Presidential term.

Many Americans have followed in Brian’s footsteps. American students, journalists like Nicholas Kristof, activists, actors such as George Clooney, Mia Farrow, and Don Cheadle, and even officials like New Mexico’s governor (and Democratic Presidential candidate) Bill Richardson have traveled to Darfur and continue to galvanize American support to end the Darfur genocide. There are also grassroots organizations such as the Genocide Intervention Network (GI-Net) that work tirelessly to raise Americans’ awareness and push for concrete action on Darfur. With so many Americans seemingly engaged, why has the once emphatic promise of Never Again been reduced to over and over again in Darfur?

President Bush has referred to the ongoing atrocities in Darfur as genocide. But neither he nor his Administration has matched efforts such as Brian’s in the fight to end the Darfur crisis. In fact, some Administration actions have seemed downright shameful in the face of such violence and suffering.

In March 2005, over two years after the violence started, the United Nations Security Council (UNSC), on which the U.S. has a permanent seat, was preparing to consider referring the Darfur situation to the ICC under Chapter VII of the UN Charter and Article 13 of the ICC’s Rome Statute. A recently obtained Freedom of Information Act (FOIA) request suggests that the Administration went out of its way to keep the ICC referral option off the table due to its opposition to the Court. When its efforts failed to pay off with both its European and African counterparts, the Administration was faced with either vetoing the resolution or putting its dislike of the ICC aside long enough to give Darfurians a real shot for justice and accountability at the Court. In the end, the U.S. abstained from the vote altogether, along with permanent member China and rotating members Algeria and Brazil. Resolution 1593 passed on March 31, 2005, enabling the first-ever permanent international criminal court to do what no one has thus far done for Darfur: go after those most responsible for the worst atrocities.

Since the March 2005 referral, the ICC has conducted a painstaking investigation of the Darfur atrocities, often from refugee camps in neighboring Chad (the Sudanese government won’t allow Court officials in Darfur for obvious reasons). This past spring marked a milestone for Darfur as the ICC issued two arrest warrants for Ahmad Harun, a Sudanese Minister (of humanitarian affairs, no less) and Janjaweed leader Ali Kushayb. The men are accused of committing 51 counts of war crimes and crimes against humanity against the people of Darfur. And the investigation has just started gaining momentum. Chief Prosecutor Luis Moreno-Ocampo has made clear that he will go wherever the evidence takes him. Most importantly, Mr. Moreno-Ocampo has presented evidence that clearly links Harun and Kushayb in crimes committed between 2003 and 2004, meaning that the Sudanese government is complicit, if not outright orchestrating, the Darfur genocide.

Notwithstaning public declarations of the Darfur atrocities as genocide, senior Administration officials have failed to prioritize Darfur in U.S. foreign policy. A case in point: In 2006, U.S. officials met with Senior Security Minister Salih Gosh at least once on U.S. soil to discuss Sudanese cooperation with the Administration’s “war on terror” abroad. Mr. Gosh lucked out—the Genocide Accountablity Act that would have likely allowed for his capture and prosecution by U.S. courts was only introduced this year and has yet to pass the House of Representatives. Mr. Gosh is widely believed to be the No. 2 in command in Sudan and deeply involved in the ongoing campaign of ethnic cleansing in Darfur.

Last week the UNSC finally passed a long overdue resolution authorizing a 26,000 member strong hybrid UN/AU force to be deployed to Darfur. The catch? No cooperation with the ICC on executing its arrest warrants against Harun, Kushayb, and any perpetrators identified in the future. While the much stronger hybrid UN/AU force is sorely needed on the ground, the resolution has come at a maddeningly slow pace and has lacked any strong leadership from the Administration. Indeed, the Administration has dragged its feet on Darfur for so long that the use of the G-word by President Bush rings hollow and seems terribly disingenuous in light of the ongoing violence. Even as the Darfur case is at the ICC, the U.S. has done little to assist the Court and show a true commitment to ensuring peace, justice, and accountability for Darfurians. Simply put, the Administration’s largely discounted, highly counterproductive policy toward the ICC has resulted in a mind-boggling “come to us approach” executed in large part by the Department of State. Of course this isn’t the official Administration position—after all, Mr. John B. Bellinger III, the Legal Advisor to the Secretary of State, has recently been credited with expressing U.S. “openness” to Darfur-related U.S. assistance to the ICC. But in between the lines is the unofficial truth when it comes to U.S. support (of which there has been none thus far) on the ICC’s Darfur case. Pay close attention to the words I’ve bolded in an excerpt from a recent speech Mr. Bellinger gave in The Hague, the Netherlands:

“We did not oppose the Security Council’s referral of the Darfur situation to the ICC, and have expressed our willingness to consider assisting the ICC Prosecutor’s Darfur work should we receive an appropriate request.”

Mr. Bellinger, Darfurians don’t owe us a thank you for not vetoing the ICC referral. By abstaining from the vote, we only succeeded in showing the world that we are more paranoid about an ill-conceived threat from the ICC than we are committed to universal principles of justice, fairness, and accountability. And Darfurians definitely don’t have time for the “come to us” approach we’re favoring these days. This is a genocide, not a game of political strategery. The ICC is a legal body, not a political institution. That means that we should assist the ICC investigation in any way we can—from turning over satellite imagery of the Janjaweed’s aerial bombardments of Darfur villages with Sudanese government gunships to re-prioritizing the conflict as a whole in our foreign policy.

Even the staunchest ICC opponents must concede that specific assistance on the Darfur case is not the same as blanket approval for the ICC as an institution. With the Sudanese government transplanting new populations in place of the ones it has slaughtered in Darfur, time and evidence is running out. Did we not swear Never Again after World War II and the Rwandan and Bosnian genocides? How many more deaths must there be before our government’s inaction makes us complicit in genocide?

Thankfully, Congress has been much more proactive in addressing and redressing the Darfur crisis. Last week, with the help of groups like GI-Net, the House of Representatives passed the Darfur Accountability and Divestment Act (DADA) with 152 co-sponsors and a vote of 418 to 1 (don’t ask about the lone dissenter—(s)he gets to stay anonymous). GI-Net summed up the Bill best in its July 31st press release:

[…]this bill will authorize and protect states that divest from the culpable companies that support the genocidal government of Sudan and refuse to change their behavior..Despite existing bans prohibiting U.S. companies from conducting business operations in Sudan, institutions and even individuals throughout the United States are indirectly fueling the genocide by investing in foreign companies complicit in the bloodshed. The Darfur Accountability and Divestment Act will establish a federal list of the culpable foreign companies to better inform Americans regarding their investments. Furthermore, the bill forbids the U.S. federal government from entering into or renewing contracts with companies included on that list and authorizes state and local governments to do the same. H.R. 180 also protects these state and local governments and asset managers who divest. Since the government of Sudan relies heavily on foreign investment to fund its military, divestment is an effective strategic move against the crisis.”

DADA is now in the Senate and it’s time for us–everyday Americans like Brian Steidle—to take a stand. The dedicated folks at GI-NET have set up a hotline for us to call and tell our Senators to pass DADA: 1-800-GENOCIDE.

Brian Steidle has done his part ten times over to push for an end to the Darfur violence, but he is still one American. There are 300 million of us in this country, and we can’t afford to drag our feet. I’m not asking you to go to Darfur. I’m asking for a one-minute phone call. Never Again starts with us, and it starts now. After you call your Senator, check out the listings for Brian’s documentary. As they say, a picture is worth a thousands words. In Brian’s case, these pictures may be worth a thousand lives. Since the time you started reading this blog posting, three Darfurians have died from violence, starvation, or disease.

For the latest news on Darfur, check out my IJ Wire.

For my briefing paper, “No Peace without Justice: U.S. Must Cooperate with ICC on Darfur,” co-authored with colleague Julia Fitzpatrick, click here.

For more information on the Darfur crisis, check out these organizations’ websites:

Genocide Intervention Network

Save Darfur Coalition

Enough Project

 

 

The Week in Darfur

As much as I’d like to think that the two Sudanese suspects thus far identified by the International Criminal Court (ICC) are dead men walking, the Los Angeles Times’ Maggie Farley reports otherwise. In D.C., the House of Representatives overwhelmingly passed the Darfur Divestment and Accountability Act. Across the Atlantic, the Independent reports on the newest evidence submitted to the ICC: 500 drawings from children who fled the Darfur violence into neighboring Chad. And Conor Foley of the Guardian finally sets the record straight on why politics and justice at the ICC don’t mix.

Check out these latest Darfur news stories in IJ Wire.

U.S. and the ICC: Lukewarm is not warm

I’ve been an ICC advocate for almost seven years and there’s one question people ask that never seems to have a short answer: What’s the real deal with the current U.S. policy on the ICC? I am going to spare you the very long answer (in this blog, at least). But sufficed to say that characterizing U.S. policy on the ICC as one that is “warming up” these days would be, well, wrong. Don’t take my word for it though—take the word of the Secretary of State’s Senior Legal Advisor, John B. Bellinger III.

I gave a presentation on U.S.-ICC policy last November at the ICC’s fifth Assembly of States Parties in The Hague, and as tempting as it was to paint a rosy picture for the foreign officials, NGO representatives, and other stakeholders who were wondering about Washington’s mixed signals on the ICC, I refrained. When you’re a 29 year-old halfway across the world in a room full of diplomats and veteran ICC advocates, you remember your manners: Be attentive. Show respect by listening. Think before you speak. Don’t be overly confident. But I was there for a reason, and as one of (sadly) a handful of people who tracks U.S. policy on the ICC, I wasn’t about to misrepresent the facts on the U.S. side.

The reality was that I didn’t think the Administration was “warming up” to the ICC. Put another way, I didn’t believe that the recent congressional and presidential action was reflective of a deeper policy shift toward the ICC. Rather, the Administration was trying to triage the consequences of a policy that had been bad from the start: its Bilateral Immunity Agreement (BIA) campaign. More pragmatic voices inside the Administration had seemingly realized that the BIA campaign, which requires all ICC countries to sign blanket immunity agreements for Americans or face millions of dollars in aid cuts, was an ineffective policy at best. At worst (which in my view has come to pass), the BIA campaign has been a counterproductive policy that has burned much needed political capital with countries like Jordan (“our greatest Arab ally in the war against terror”), Kenya (“a linchpin of East African stability and security”), and a slew of Latin American countries (much to the delight of Venezuelan President Hugo Chavez).

For the last eight months, I’ve been hoping my assessment at The Hague was overly cautious. But Mr. Bellinger’s June speech in The Hague and July 12 interview with the Council on Foreign Relations (CFR) here in D.C. confirmed how lukewarm the U.S. government is when it comes to the ICC.

On June 6, Mr. Bellinger gave a speech titled “United States and the Law” in The Hague, the Netherlands. He opened his speech with this memorable line: “Some of you may think it rather bold of me to come to a city renowned for its institutions of international peace, justice, and security and talk about the United States’ commitment to international law.” (It’s no secret that our European friends are dumbfounded by U.S. policy toward the ICC, not to mention other issues like Guantanamo). He mentioned U.S. opposition to the ICC, saying that “we believe it important that ICC supporters take a…practical approach in working with us on these [international justice] issues, one that reflects respect for our decision not to become a party to the Rome Statute. It is in our common interest to find a modus vivendi on the ICC based on mutual respect for the positions of both sides.” (I put in the bold).

There’s no question that the U.S. is a sovereign country and as such can choose not to join the ICC. But this fact is precisely where he loses me—why doesn’t the reverse hold true for the U.S. government? Surely other sovereign countries have the same right to choose to join the ICC without fear of reprisal or strong-arming from us. This would be the “mutual respect” that Mr. Bellinger mentioned. But this has not been our policy. Mutual respect would not leave a country like Peru with a 2005 per capita GNI of $2610 with millions of dollars in aid cuts from the U.S. simply because it joined the ICC and doesn’t want to violate its own laws by signing a BIA.

In his July 12 interview with CFR’s Robert McMahon, Mr. Bellinger finally set the record straight: “I understand that this has been the view of many ICC supporters all along—that as long as the ICC as an institution continues to behave reasonably, the United States will warm to it. I don’t think that’s an accurate characterization” (my bold).

By the way, if you’re wondering why the U.S. is so opposed to the ICC, Mr. Bellinger described the Administration’s chief concern as the ICC having “purported jurisdiction over us.” I’m glad he used the word “purported”—sounds like he’s read the ICC Chief Prosecutor’s detailed communique in February 2006 explaining exactly why the ICC does not have jurisdiction over U.S. actions in situations like the war in Iraq. The communique wasn’t an isolated occurrence, either—ICC officials have stressed at every turn that in accordance with its treaty, the ICC is a court of last resort. This means each country’s domestic legal system has primary jurisdiction over its own nationals accused of committing war crimes, crimes against humanity, and genocide.

I understand Mr. Bellinger’s situation: to have a change of heart now would make the fiery rhetoric of opposition that the Administration and some members of congress have shown the ICC for the past seven years seem awfully silly. (My favorite is former Congressman Tom Delay’s characterization of the ICC as “Kofi Annan’s kangaroo court.” I should mention that the ICC is wholly independent from the U.N. and its Secretary Generals). Still, I really wish our officials were going about this differently. If the government has concerns about the ICC, which it has a right to do, it should go about expressing them in a much more constructive way. If you’re upset with someone, stewing in a corner and picking on others who speak to that person is only going to leave you angry and alone.

It’s recently been rumored that the State Department no longer views the BIA campaign as a priority. The reason? Apparently the Administration doesn’t consider the ICC as a threat anymore. Not exactly the warmth I was looking for. I’m having an increasingly difficult time letting Mr. Bellinger speak for me and other Americans. The fact is the majority of us in this country support the ICC—an international criminal court that is tasked with investigating and prosecuting the world’s worst crimes. The ICC isn’t about targeting the U.S. Characterizing the Court that way tells the millions of innocent civilians in Darfur, Democratic Republic of Congo, Uganda, and countless other places that we don’t care about ending genocide and impunity. Mr. Bellinger says our Administration shares the “overall ends” of justice and accountability, just not the ICC. It’s time for other American voices to be heard.

Japan comes in at 105th

As the newest member of the International Criminal Court (ICC), Japan had much to celebrate on July 17. Coming in at 105, Japan’s ratification of the ICC treaty makes it the 13th Asian country to join the Court and its top financial contributor, beating Germany with an annual contribution roughly equal to 19% of the ICC’s total budget of $124 million.

But the Japanese government can’t take all the credit. After all, governments rarely join international bodies without strong and consistent pushing at the local level. Enter Japanese civil society, and in particular, the Japanese Network for the ICC. I had a chance to speak with one of the Network’s representatives last November when I attended the fifth annual session of the Assembly of States Parties (ASP), the ICC’s legislative body, in The Hague, Netherlands. I was at Citizens for Global Solutions at the time and one of just a handful of American NGO representatives at the ASP (there were hundreds of NGO delegations from almost every country in the world in attendance). One evening after endless plenary sessions, NGO meetings, and interviews for the U.S. BIA analysis I was working on, I came across my Japanese counterpart.

I was curious—just two months earlier on September 12, the Japanese Foreign Ministry had announced Japan’s intention to join the ICC by July 2007, and I wanted to know if the two challenges facing ratification had been resolved: A Bilateral Immunity Agreement(BIA) with the U.S., and the hefty annual contribution that Japan would make to the Court based on its economy. Given the Foreign Ministry’s public announcement, it seemed that the financial issue was resolved. But the BIA issue was far less clear. (If you’re wondering what a BIA is, here’s the short version: it’s an agreement that the U.S. is requiring all countries to sign so it can immunize itself from the ICC. If countries refuse to sign, they have their aid cut every year. How much aid? Well, let’s just say more than the ICC’s annual budget of $124 million.)

Before I went to The Hague, there had been rumors that a BIA was already in place between the U.S. and Japan. While this was never confirmed, my new colleague did confirm that there was a lot of U.S. pressure to get Japan to sign a BIA.  Flash back to World War II for a minute. Do you remember which side Japan was on? Do you remember which side the U.S. was on? If I recall correctly, after WWII the U.S. was instrumental in providing justice for the millions of victims that had perished. And yet sixty years later, the leader of the Allied Powers is strong-arming an upstanding member of the international community—not to mention a key East Asian ally—to make sure the ICC doesn’t apply to Americans….?

Still, like clockwork, Japan joined the ICC this month—on International Justice Day to be exact. My Japanese colleague told me at the end of our conversation that the Japanese people marvel at the Americans’ insistence on BIAs. I told him that the Americans I knew—the ones who believed in justice and accountability—would never support U.S. exceptionalism.

There is a Japanese proverb that says, “after victory, tighten your helmet chord.” Japanese ICC advocates celebrated their victorious efforts to see their country join the ICC. But they know that more hard work lies ahead. Back here in the U.S. we have our work cut out for us too. The U.S. won’t be joining the ICC anytime soon (too many hyperlink options here, so just take my word for it). But we’re not off the hook: consistent U.S. polling shows that the majority of Americans favor the ICC, but our policymakers don’t represent our views when it comes time to legislate. I for one would at least like to put the helmet on. You too? More soon.