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Monthly Archives: October 2013

On 12 October the African Union said that the International Criminal Court (ICC), which has 122 members, including 34 from Africa, should not prosecute a sitting head of state. This comes on the heels, most directly, of attempts by the ICC to prosecute Kenyan President Uhuru Kenyatta and Deputy President William Ruto for crimes committed during election violence in 2007. But the tension goes back several years more, with a dispute over the attempt to prosecute Sudanese President Omar Hassan al Bashir over the conflict in Darfur, as well as attempts, mostly by European states, to exercise universal jurisdiction and prosecute Africans, and in particular members of the Rwandan government, over violence after the end of the 2004 Rwandan genocide. The AU has repeatedly requested that the proceedings against Bashir and Kenyatta/Ruto be suspended, which only the UN Security Council can do. The AU has argued that the prosecution of Bashir makes it harder for peace to be negotiated in Darfur, although there is little evidence of this. More broader, there are accusations of bias since all prosecutions up until this point have been against Africans. Those making these accusations neglect to mention that some of these cases have come about as a result of African states themselves referring their countries to the ICC for investigation.

What these countries are looking for is, as Desmond Tutu has said, ‘a license to kill.‘ The Rome Statute of the ICC says clearly that one cannot claim immunity from prosecution based on their status as head of state or other official. The 34 African members of the ICC knew this when they ratified the Rome Statute, but now some are having second thoughts once the reality of such prosecutions has hit home. It must be pointed out that African states are not unanimous on this. And with the election of a new African Prosecutor, Fatou Bensouda, arguments of bias or anti-African conspiracies are even less warranted. As I argued in an article in May 2012 in Human Rights Quarterly entitled “‘Bashir is Dividing Us’: Africa and the International Criminal Court” Africa is dealing with four paradoxes or conflicts which are inherent in evolving discussions about human rights, sovereignty and the role of Africa in the world:

  1. Human rights vs. sovereignty – The international community as a whole has recognized that governments and leaders cannot claim the right to do whatever they want against their people, and the African Union has made a similar recognition in article 4h of its Constitutive Act, which said that the AU could intervene in African countries where the government was engaging in widespread human violations against its people. However, such fundamental shifts do not happen overnight, particularly in an organisation like the AU which still has many leaders which are less than democratic. And it is understandable that even Kenya, which is more democratic, would resist when its leaders are under threat.
  2. Human rights vs. Pan-Africanism – While there is significant support for human rights within Africa, the question of African identity is still very important, and there are situations where support for one’s fellow African leaders may trump support for human rights, in particular when neo-colonial arguments are used to argue against outside interference. This connects to the ‘African solutions for African problems’ which, while a positive statement of intent to deal with significant issues within African, can also be deployed to undermine potentially positive support from outside.
  3. Global vs. regional geopolitics – Africa is struggling to assert its place in the world, and in particular within the UN at the Security Council. It argues that the current make-up of the Security Council, and the global peace and security architecture more generally, is unfair and excludes African voices to a significant degree. This is undoubtedly true, and the AU has demanded, via the so-called Ezulwini Consensus of 2005, 2 permanent seats for Africa on the Security Council (which would likely be filled by South Africa and either Nigeria or Egypt), and an additional 5 non-permanent seats. The chances of this happening are slim, and in any event discussions over Security Council reform, which have been going on for many years, are agonisingly slow. Thus, Africa feels sidelined – even more so when its requests to defer the Bashir and Kenya prosecutions have been ignored. As a result, as I argued, ‘real concerns about the role and sequencing of human rights mechanisms in conflict management fall prey to ideology and geopolitics.’
  4. Peace vs. justice – While concerns that international prosecutions can undermine peace negotiations – as has been asserted in both Darfur and Uganda, for example – are real, they can also represent a false dichotomy. And it is not clear whether things would have been any different in Darfur if Bashir had had not had an arrest warrant issued against him by the ICC. In the case of Uganda, while the ICC warrants for Joseph Kony and his top lieutenants may have both driven the Lord’s Resistance Army to the bargaining table, and then away again, the dynamics are much more complex.

The vote on Saturday by the AU does not provide encouragement for those who want to end impunity for mass atrocities – in Africa or elsewhere. But it must be seen in a broader context and with a significant amount of nuance. Africa as a continent has not suddenly turned away from the ICC and human rights. But, this is evident a continuing argument over human rights and justice, which is ongoing not only in Africa but also in the broader international sphere where norms against impunity are still being developed, debated and discussed.

Below are comments I made on 26 September at a Roundtable on Syria, sponsored by the Glasgow Human Rights Network. It is unfortunate that the debate on how to address the widespread human suffering in Syria has been hijacked by the narrow focus on chemical weapons. While it is obviously good that Syria may get rid of its chemical weapons, this will not stop the war and the killing. 100,000 people have been killed in Syria without chemical weapons.

 

26 September 2013

The global discussion on Syria over the past few weeks has been wide ranging, but in the end it comes down to one question – Do we or don’t we? Do we use miltary force to intervene in a conflict where civilians are dying? We seem to be faced with this question on a regular basis, as some new atrocity makes the headlines. Srebrenica. Rwanda. Kosovo. Darfur. Benghazi. Homs. Massacres or potential massacres enter the political lexicon with sickening regularity. Syria and chemical weapons will now be forever linked in political discourse.

The background to the current discussion over Syria is Iraq. This is both good and bad. It is good in that our representatives – and publics – are now more sceptical about claims made by our leaders. Iraq was a send-up job – a lie of historic and criminal proportions. It destroyed the credibility of the US and UK and made people more wary. This is a good thing, because we should always be wary when our politicians talk about war.

President Obama’s aggressive and illegal use of drones to assassinate suspected Islamic militants in Pakistan and Yemen and elsewhere – and the associated deaths of innocent civilians – hardly helps to allay the mistrust.

And yet, the legacy of Iraq is also damaging to the interests of people around the world who need protection. It creates a reflexive distrust which gets in the way of adequate consideration of the situation – and the people who are being slaughtered on a daily basis. It says NO every time a situation like Libya or Syria arises, with little discussion beyond the political discourse of anti-war rhetoric. Yes, there are many interests and considerations in the mix – Israel and Iran being two of the biggest – but Syria in 2013 is a lot different from Iraq in 2003.

Reference has already been made to the responsibility to protect. It is not international law. It does not create a legal obligation, but it certainly recognized a moral and political obligation which builds upon decades of global development of human rights norms. Absent a Security Council resolution, any intervention to protect the population would, in essence, be an instance of civil disobedience – knowingly violating the law for a greater good. Of course, protestors who engage in such behaviour recognize that they will be held accountable for their action and will have to justify it in court.

Unfortunately, the way the recent discussion about Syria has developed departs from this focus on protecting people. Instead, it is the use of chemical weapons which seems to have exercized our leaders, and this partly contributes to our cynicism. What President Obama should have said two days ago at the UN General Assembly meeting was:

‘We will intervene in Syria solely to protect human life and we will do it in such a way as to minimise additional human suffering. Our actions will be formally illegal under international law, but our international system is broken and the lives of civilians in Syria cannot be held hostage to an outdated system where human rights abusing regimes like China and Russia can condemn people to death by inaction. International law is evolving, but not fast enough, and the people of Syria cannot wait. Judge us for our actions now, not what happened 10 years ago in Iraq.’

That would have been dangerous and radical, and is precisely why it did not happen. Instead, the focus is on the use of chemical weapons. The excruciating death of 1,400 people from sarin is horrible, but by using such weapons as a justification for action – or now inaction, with an agreement by Syria to get rid of it chemical weapons, which it previously had denied owning – it obscures the much bigger picture. This includes the 100,000 dead I previously mentioned, who were not killed by chemical weapons, the 2 million refugees who have fled the country, or the millions of Syrians displaced within their own country – equivalent to shipping the vast majority of the population of mainland Scotland off to the islands. These are not insignificant numbers. Indeed it is a human rights and humanitarian catastrophe of gigantic proportions.

An agreement to get rid of Syria’s chemical weapons is a good thing. But it is hardly enough. It will take a long time, and there are plenty of opportunities for the regime to delay and undermine progress. And so far Russia has blocked a more robust resolution to encourage Syrian compliance. The threat of military force brought about this agreement. But it has not brought about the end of the killing. Both sides are responsible for the killing, but they are not equally responsible. Remember how this civil war started – the Assad regime killed and repressed people who were protesting peacefully. Further action is needed to degrade the Assad’s ability to massacre his own people and to directly protect civilians who are at risk – from whatever source. This might include strikes on military targets and creation of safe zones. Unfortunately, the most recent agreement, while a positive sign, is hardly adequate to fulfill the responsibility to protect agreed to by the member nations of the UN in 2005. Instead, it is being cynically used to undermine that responsibility.

The situation is much more complicated now, with a variety of actors on the ground, some of them particularly unsavory who very few would like to gain power in Syria. But this complicatedness should not lead us to just throw up our hands in despair. Rather, it should demonstrate, yet again, that by leaving such situations to fester we end up with bigger problems. It should also highlight the need for urgent institutional reform of the UN. Unfortunately, it seems that neither lesson is being learned.