That G-word again

This week, the appeals chamber of the International Criminal Court came out with a curious ruling. Which may or may not turn out to be significant. Depending.

To read the headlines in most of the papers on Thursday, one would have thought it was most certainly significant. Sudanese President Omar al-Bashir is about to be hung, drawn and quartered.

This isn’t actually what the appeals chamber said. What the judges actually ruled is far more mundane. Basically, they said that the ICC judges, which said Omar al-Bashir could not be charged with genocide, erred when they made such a decision. The original decision not to charge Bashir with genocide was based on the fact that it could not be categorically proved that he acted with genocidal intent. But the appeals chamber said that such a burden of proof was set too high, and that it would be enough just to have a suspicion of that proof.

And all this means… what exactly?

Well, that the judges now have to re-evaluate their decision, based on the latest “burden of proof” ruling delivered by the appeals court judges.

It does not mean Bashir will be charged with genocide – as some British publications embarrasingly had it after the verdict – but it does mean that he now could be.

But the question remains: who the hell cares?

One might, at this point, like to refer to two of my previous posts: why Darfur is not genocide and why Darfur might just be genocide.

In these postings, I argue that, whilst legally-speaking genocide has been taking place in Darfur, politically genocide is a very dangerous label to apply to the conflict.

The United States stubbonly refused to call the Rwanda “genocide” a genocide – so why do they insist on applying this label to Darfur? And why does the EU still refuse to use the G-word. It’s all down to politics.

And this is why the ruling this week is, to my mind, even more inconsequential than it appears. Some really terrible stuff has been happening in Darfur – and continues to be happening. Bashir has been indicted for terrible crimes against humanity – crimes that relate to horrible goings-on in Darfur, such as mass torture and gang rapes. Does it matter that we are now going to call this genocide?

For some people in the Hague who actually care about such court cases, it does. These legal beagles – legal beagles who arguably should know better – are now jumping up and down in excitement, and saying that finally the genocide label could be placed on Bashir.

Forget all the terrible things that have going on in Darfur for many years. Now people are prepared to take notice.

Okay, fair enough, there is the argument that calling the Darfur conflict a genocide at least gets it noticed. This is an argument likely to appeal to Save Darfur or other NGOs that pull in a lot of money because Darfur is always in the news.

But I still feel that calling using the G-word clouds people’s mind, and makes people think of Nazi Germany or the killing fields of Vietnam. To equate Darfur with these horrendous conflicts displays a fundamental misunderstanding of what has been happening in the region.

Personally, I do not think that Bashir should have been indicted – and I would love to see how the prosecution intends to prove the chain-of-command that links him with genocide.

But since he has been indicted, accusing him of heinous crimes against humanity or genocide changes very little. Only in people’s minds. And that is not necessarily a good thing.

Lubanga turns interesting

Usually, court proceedings in The Hague are mindbogglingly boring.

With lawyers rambling on for hours on ends about one minor element in some poor witnesses testimony, which I am sure has some relevance somewhere (in someone’s mind) but for us mere mortals, not of the legal persuasion, appears utterly pointless.

Sometimes, listening to witness testimony at the International Criminal Court can be worse than sitting through a session of the European Parliament. Or grinding your balls in a nutcracker.

A colleague of mine thinks this could be because I mainly listen to the French cases – namely that of Thomas Lubanga and the separate one of Germain Katanga and Mathieu Ngudjolo.

True, when I did tune in some weeks ago to the Charles Taylor one – taking place before the Special Court of Sierra Leone – it did seem measurably more captivating. But this might have been because they were talking about the natives eating one another, rather than because Charles – good looking and charming – was speaking in English.

Anyway, all this is by way of warming up to say that, this week, the Lubanga trial did finally turn interesting.

You can read about it here, the main highlight being that the Lubanga’s defence lawyers directly accused the prosecution of grooming the witnesses beforehand. With this (pretty serious) accusation, they are hoping to discredit all of the witnesses called and move for a discontinuation of the trial.

Gritty stuff. And fairly substantial allegations.

The trouble with peace

Peace can be a blasted annoyance sometimes.

Whilst I am being deluged by all sorts of interesting justice-related stories from the Democratic Republic of Congo and Sudan, it is becoming harder and harder to commission hard-hitting copy from Uganda.

This is, quite frankly, because things really are looking up in the country. The dreadful Lord’s Resistence Army (LRA) have now been chased out of Uganda, hopefully for good. War-affected society is starting to heal its wounds. Uganda is even talking about being in a stable enough position to start trying its war criminals, rather than handing them over to the International Criminal Court – an ICC bill, now wending its way through the Uganda Parliament, is set to make that an even more likely possibility.

In short, the injustice, war and misery upon which our organisation thrives is fast disappearing. It’s great for the local communities but less good for those that want to write interesting stories.

But this, for me, is always the dilema with NGOs. If an NGO is truly doing its job well, it should be working towards its own destruction. An NGO has succeeded when there is no more use for the role that it was performing.

At a conference the other day, I met someone from the UN Observer, who was talking about the need for the UN to change its way of working. I couldn’t agree more.

One thing that we started discussing was how ridiculous it is that the UN’s Mission in Sudan (UNMIS) still has a staggering 2,500 personnel in Khartoum alone.

Again, if UNMIS is doing a decent job in Sudan – and I have strong doubts that it is – then it should really be working towards a time when it is no longer needed in the country.

Which is part of the problem, since there are significant benefits to being based in Khartoum as opposed to, say, Afghanistan. Namely that you get good money without the risk of being blown to pieces. Khartoum is classified as a high-risk, non-family destination. (Yeah, right!) Which means you get lots of holiday and lots of money.

So, the problem has always been, in my eyes, that people in the UN have things very comfortably and so aren’t all that keen for things to end.

But the UN Observer chap had a good point. What if, instead of concentrating the 2,500 personnel in Khartoum, they were liberally scattered in the countries surrounding Sudan. I’m sure Somalia could do with a good handful.

This is an excellent idea – and one that the UN should listen to. It’s all about adaptation.

Just like we, as an organisation that covers war and suffering, should perhaps adapt to widen our remit in certain countries.

Then the purpose of an NGO moves beyond simply working towards its own destruction. It becomes one of working towards its evolution.

Tony Blair and the Iraq War

So, we are now faced with the news that Tony Blair acted illegally in involving Britain in the Iraqi war, at least according to Foreign Office legal advisers.

In memos to Downing Street, Michael Wood, then the chief legal adviser for the Foreign Office, warned that going to war without approval from the UN Security Council resolution would constitute a ‘crime of aggression’ under international law.

Such warnings were ignored by both Blair and the then foreign secretary Jack Straw.

This is significant.

The Nuremberg Trials, set up to prosecute Nazi war criminals and which I am studying quite closely at the moment, ruled that “to initiate a war of aggression…is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Going by this definition – which was specifically written with Nazi Germany in mind – one might be tempted to draw certain parallels with Snrs Blair and Straw. Such parallels may be unfair – Blair and Straw don’t really cut it as closet Nazis – but it the significance of fighting an illegal war should not be overlooked, if international justice is to mean anything.

Let’s not forget that, unlike the US, the UK is a signatory to the Rome Statute, which set up the International Criminal Court (ICC).

Interestingly, though, the Rome Statute was not so forthcoming in deciding what it should do about crimes of aggression. It holds that the crime of aggression is one of the “most serious crimes of concern to the international community”, and says that the crime should fall within the jurisdiction of the ICC.

However, negotiations to draw up the treaty stalled over how to define a crime of aggression and, until such time as a definition is given, then prosecutions are unlikely to take place.

There may be an opportunity for a definition for crimes of aggression to be introduced into the Statute during the ICC Review Conference, due to take place in May and June this year, in Kampala.

But don’t bank on it. Not all countries are totally sold on crimes of aggression being included. And, lets not forget, many of the ICC signatories still want to woo America into joining. They’re not going to be able to do that by getting the court to start investigating crimes that America itself may also be guilty of.

http://www.dailymail.co.uk/news/article-1246312/Chilcot-inquiry-Iraq-war-The-damning-verdict-Whitehall-lawyers-invading-Iraq-ministers-refused-accept.html

Humour of the Gods

Gods may not be all that partial to playing games of dice, but they certainly know how to crack a joke once in awhile

It seems, for example, somewhat amusing that news that Europe is currently experiencing its harshest winter in a decade comes so close on the heels of dire warnings from the Copenhagen Summit that global warming is going to spell the end of us all unless we take some urgent action.

Might this not be a sign of some Heavenly ruler looking down upon us with jest, and saying: “I’ll put an end to this human arrogance, who think that they are so important that their actions alone can possibly decide the future of the Earth!”

Then again, over the weekend, I got talking to a Portuguese lady. Reminiscing, as one does, about snow in Lisbon three years ago (the first time in decades), she suggested that perhaps Global Warming is a misnomer. Climate Change is so much better. Avoids all this nasty misunderstanding.

Still, I rather like my idea. I like to think that, somewhere up there, the Gods to have a sense of humour.

Extremely cold in The Hague at the moment!

http://www.google.co.uk/url?sa=t&source=web&ct=res&cd=1&ved=0CAcQFjAA&url=http%3A%2F%2Fnews.bbc.co.uk%2F2%2Fhi%2F8398510.stm&rct=j&q=copenhagen+climate+change+bbc&ei=26pdS_CGKcWF-AbYkpAE&usg=AFQjCNEcEZ5BihOCv9wnlrc6RbUXBwYG8w

Past injustices

It is some times difficult to know whether to take African newspapers seriously or not, but this article is amusing.

Apparently, the Bunyaro Kingdom in Uganda, which rather lost out under Brtish colonial rule, is threatening to refer the Queen of England to the International Criminal Court (ICC).

Aside from the fact that the suggestion is blatently ludicrous, it displays a fundamental ignorence among the Ugandan population, as well as the journalists who wrote the article, about how the ICC actually works. Which is slightly worrying.

The ICC’s purpose is not to rectify the wrongs of colonialism, which happened decades ago. It is designed to prevent injustices occurring in the future.

To this end, it can’t take action against anything that happened before 2003.

Which is one of the reasons it never weighed in to the whole Saddam Hussein affair.

Reading this article, I did have to venture a quick glance at the calendar to see if it was April 1.

I don’t think it is, though.

The long road to justice

The International Criminal Court (ICC) has now been in existence for almost eight years.

It finally came into being in 2002, four years after the official signing of the Rome Statute – they had to wait until the 60th country joined.

Bosnia & Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia all claim that place – since they all ratified at the same time.

So far, it’s achievements have been less than noticeable.

Okay, no one has so far died whilst in prison – as happened to Slobadan Milosovich at the International Criminal Tribunal for Yugoslavia.

But, equally, justice seems as far away as ever for the people that have suffered such appalling attrocities in the places that the ICC is trying to deal with.

Only a handful of indictees have so far been arrested, mainly from the Democratic Republic of Congo (DRC), although one Congolese was arrested for his involvement in the Central African Republic.

Abu Garda, a rebel from Sudan, has also voluntarily presented himself before the Court – although he has not yet been arrested, and so could always abscond into the Darfuri bush.

Many of the warlords of Uganda, which have committed some appalling acts, still remain at large. Others have died. None have been arrested.

The first trial before the ICC – that of Thomas Lubanga – only began at the start of this year and has since been beset by delays. It should resume in January for another protracted session.

It is small wonder that the signatories to the Rome Statute seem to be getting a little weary of supporting the Court, since they can’t actually see what it is doing.

Of course, one must always be careful with any judicial proceedings that there is no miscarriage of justice. Which explains the delays, I suppose.

But there are even a few lawyers that are privately muttering that the whole process does seem to be taking rather a long time – and if even they are saying that, then one has to start to wonder…

The persistent delays of the ICC are worrying for another reason.

Victims of a crime in Europe or America might understandably become frustrated with such a lengthy delay before they could see justice. But they could wait.

But, in Africa, where  life expectancy in many places tends to be around the 40 mark, there is a real danger that many of the victims’ families who now calling for justice may not live long enough to see such justice meted out.

Is the ICC suffering a crisis of confidence?

Like many institutions these days, the International Criminal Court (ICC) has something of a problem with lack of funds.

A colleague of mine wrote a very good article about this, which is the hardest one that I have so far had to try to get past editors in London, since it was certain to irk the court.

And an irked court is something that I really could do without, since I need their co-operation in the book I am writing.

But sometimes the court is it’s own worst enemy – see the ill-thought-out comment that they made in the article, which disingenuously said that they could dip into the “contingency fund” that is reserved for unseen circumstances, should they run out of money.

Doh! Is it actually a surprise to anyone that the court has to, ach-hem, actually run some trials next year.

Anyway, the problem all lies with the Assembly of State Parties (ASP), which are the financial backers of the court – i.e., representatives of the signatories to the Rome Statute.

The other week, they had a meeting in The Hague to discuss the ICC budget, and came to the conclusion that they would cut it. Not significantly, but enough to send out a rather disturbing message for those that believe in the permanency of the court.

Part of this, of course, has to do with the relentless economic troubles that member states are facing.

But another aspect of this may be that member states are starting to lose faith in the whole process. Which may be decidedly unnerving for the court, which is supposed to be a permanent fixture on the global landscape, and indeed is expecting to move into permanent digs by 2015 (predictably later than anticipated).

The problem, I think, is the slowness at which the court – and member states have so far seen no real value for their buck. Okay, a few chaps have been arrested (though many are still at large), and that sends out a clear message to other folk in their countries – don’t be bad or the ICC’ll get you, a little like a scary children’s fairytale. But, almost eight years after the ICC came into being (and more than 10 years after the signing of the Rome Statute), not a single trial has run to completion – and probably won’t next year.

Such is the slow pace of internation justice.

Just for the record, because I so often bash the ICC, I don’t disagree with the overall validity of the project. The main purpose of the court, of course, is not to prosecute all of the world’s evildoers, but to send out a very clear message to current evildoers that, should their evil keep being done, they face a very real possibility of ending up before the court.

Like Lubanga. Like Katanga. Like Bemba.

No. My real gripe with the court is the ridiculous political machinations at work behind the scenes. It’s called the Security Council, for the most part. And America, of course, has a permanent seat on that particular body – though is still not a member of the ICC.

Not that such political machinations are necessarily a bad thing. It’s just that some degree of honesty – and communication, Dear Information Department – is needed about exactly what the ICC is trying to do.

And, until that is made totally clear, expect many cash-strapped States to want to bail when the ICC goes begging to them, cap in hand.

Which it must, for some bizarre reason, do every year. How can a permanent international criminal court, whose trials can take years to run to completion, have a budget of just one year? Why not three? Or five?

Does that point, once again, to the lack of faith that signatories to the Rome Statute have about the process?

Charles Taylor

It’s not really in the remit of what I’m covering these days, but, since I am researching a book on international justice, thought I’d tune in to the Charles Taylor trial this lunchtime.

Nothing like a question-and-answer session over which body parts are the juciest to help the tomato-and-aubergine pasta sauce settle in the stomach.

I had two observations about the trial.

One: that it is a helluva lot more interesting than the trials of Congolese warlords that are taking place. No one from the Congo, who has been indicted, seemed to have much of a hankering for human flesh.

Two: Charles Taylor, smartly dressed in suit and tie, seems far less your average warlord and more like a loveable granddad. I was particularly struck by his quick wit and intelligence, as he challenged what the prosecuting lawyer was saying and quite convincingly gave his side of the story. He certainly seemed to have a degree of charisma about him.

More delays at court

Just when things had the slim possibility of getting more interesting than they had been in the Germain Katanga and Mathieu Ngudjolo Chui trials at the ICC (both being accused of crimes against humanity in the Democratic Republic of Congo), one the judges – Christine Van den Wyngaert, from Belgium – gets herself involved in a car accident and the whole trial has to be postponed until January.

The first week in the Katanga/Ngudjolo trial has been a little ludicrous.

First of all, technical hitches meant that the proceedings were not broadcast to the DRC, which certainly did little to boost the Court’s standing in the region. This meant that one of the first appearances in the court was of Sonia Robla, head of information, who apologised for this hic-cup.

Then the first witness, called by the prosecution, seemed to give rather contradictory answers and had certain problems defining what a kilometre is (he was adamant it was 100 metres), which apparently was quite pertinent to the trial. Or who was actually attacking the camp.

The pertinance of all of this was, however, lost on me and I was left wondering why the prosecution chose to led with such an apparently confused witness. Perhaps it was just to set the scene. Or something like that.

But we’re not going to find out until January now.

There was supposed to be a second witness testifying today, who was bound to be infinitely more interesting and perhaps even more helpful to the prosecution, but I guess he’s going to be sent home until after Christmas.

More delays at court.