The STL and the myth of judicial virginity

The myth propagated by supporters of the various “international” criminal tribunals established since 1992 has been that somehow a judicial proceeding could rise completely above the sordid field of politics and follow its own complete integrity. I used to subscribe to that myth. But in 2000-01, as I started to investigate more closely the work of the two ad-hoc tribunals created by the UN during the mid-1990s, it became clear that “international” criminal tribunals can never, ever, be separated either from the politics of the countries whose developments they probe (and whose politics are inevitably affected by the work of the tribunals themselves)– or, from the politics of the “international” constellation of governments that establish, fund, and provide continued support for these tribunals’ work.
My 2006 book Amnesty After Atrocity? provided copious evidence of this, with regard to the work of the International Criminal Tribunal for Rwanda. But it is not only the ICTR whose work is irredeemably politicized. So has been the work of all “international” tribunals running from the Ur-example in Nuremberg through to today’s “International Criminal Court.” As longtime JWN readers know, I’ve written a lot about this issue, both here and (earlier) on the now nearly-defunct “Transitional Justice Forum” blog. Check over there for, in particular the field reports of the reporting trip I made to northern Uganda in 2006, to assess the very harmful effects that the work of the ICC was having on peacemaking there.
And then, there was the travesty of the (heavily U.S.-supported) Saddam Hussein trial…
Plus, the fact that the government leaders in Washington responsible for launching the completely unjustified invasion of Iraq in 2003, and therefore also all the deaths and violence that ensued from that invasion and occupation, were easily able to evade ever being held to account for that act of aggression (an act that was, at Nuremberg, certainly prosecutable– and prosecuted.) This, while the U.S. has also stood quite aside from all entreaties that it join the ICC– though over recent years it has given extensive logistic and financial support to some, but not all, of the ICC’s investigations and prosecutions… when this suited Washington’s own, inevitably political, purpose.
The neutrality of these judicial bodies before an “impartial” international law? That is nowhere to be seen.
… And then, there is the Special Tribunal for Lebanon,a body that has been irrevocably “politicized” and “political” ever since its establishment in 2006-07. It is a joint project of both the U.N. Security Council and the Government of Lebanon, established at a time when the U.S. still held important sway over both bodies.
Now, Hillary Clinton and her people are busy talking about the need to allow the STL to continue doing its allegedly quite “impartial” work. The STL has been the focus of considerable controversy and swirling allegations and counter-allegations over its years in existence, and I confess I have not followed these with enough diligence to be able to make clearcut judgments regarding them.
What I can say with a high degree of confidence, based on my own work on this issue of international tribunals over the past decade is that no criminal court, within a country or at the global level, can ever have its work divorced from politics. Criminal prosecutions at a national level involve the state using the laws that already exist within the country to bring a prosecution against a defendant, who may upon being found guilty be subjected to serious sanction by the state– even, in the U.S. and elsewhere, the death penalty.
At the national level, too, the head of state or government always has the power to give clemency or pardon to convicted criminals (as in the case of Elliott Abrams in the U.S.), and leaders often use these powers with the goal of fostering national unity, or other worthwhile political goals.
And at the global level? Where is the agreed-upon, duly legislated, and equality-respecting legal basis for the work of international prosecutors? Where is the opportunity for global political leaders to issue pardons or enact clemency? Where, in short, is the supra-“judicial” legal-political infrastructure that can assure the impartiality as well as general social utility of the work of prosecutors and judges?
It doesn’t exist. In a world marked by striking political inequalities– especially between countries that have P-5 status on the Security Council, and those that don’t; and between countries that have at least submitted themselves to the judgments of the ICC, and those that haven’t– the “impartiality” of international criminal courts is a myth.
I wish it weren’t so. I wish we had the kind of global system in which all national leaders and other significant political actors could be held equally accountable for their actions. But we don’t. Rights activists from around the world who have put so much energy into fighting for the establishment and support of the existing international courts really also need to examine closely the effects that these courts have had on the lives, livelihoods, and wellbeing of the millions of citizens of the countries that have been their targets. In Amnesty After Atrocity? I looked at the effects on the citizenries of Rwanda, South Africa, and Mozambique of the widely differing approaches those three countries adopted to the issue of seeking “accountability” for past war crimes, crimes against humanity, and genocide. The two countries that decided against using criminal courts to deal with perpetrators of atrocities during the episodes of severe violence that all of them had suffered were the ones that came out with their social cohesion, political purpose, and the rights situation of their citizenries the best assured.
It is not only in Lebanon that a crucial “trade-off” exists between the work of (an inevitably “political” and backward-looking) international tribunal and the prospects for peace and people’s wellbeing going forward. Look at some of my own past work on this issue. Look at what the Obama administration is now actively considering doing in the context of Sudan, for goodness sake! Today, White House officials including “Ms. Anti-Genocide” herself, Samantha Power, are openly talking about the possibility of easing up the pressure that Pres. Omar Hassan al-Bashir has been subjected to from the ICC, in exchange for his cooperation with implementing the results of the South Sudan referendum.
It surely should not be that only in Lebanon does Washington pursue the chimera of the “impartiality” of a tribunal with strong international dimensions at the expense of the wellbeing of the target country’s citizenry.
Accountability for Rafiq Hariri’s killing? One day, let’s hope, the facts will all emerge. But this highly politicized judicial process centered in The Hague looks unlikely to be able credibly to uncover them. And if it does issue indictments, what then? STL prosecutor Daniel Bellemare and whose army will arrest those indicted? What of the Lebanese government’s supposedly co-equal role in managing this whole “criminal justice” project?
The next time Sec. Clinton or a State Department spokesman starts talking about the need to preserve the “impartiality” of this court, the STL, they should be asked about some of these very important questions…

Gaza, the Obama administration, and the present

I was reading this account from Reuters of the way that Obama’s ambassador to the UN, Susan Rice, today tried to sideline and bury the important report of the Goldstone Commission.
Firstly, she brushed aside the report’s recommendation that the Security Council should remain actively involved in the follow-up efforts to win accountability from the accused perpetrators of atrocities on both sides during Israel’s December-January assault on Gaza.
Then, this:

    Rice said the focus should be the future.
    “This is a time to work to cement progress toward the resumption of (Israeli-Palestinian peace) negotiations and their early and successful conclusion,” she said.

At first blush this looks like a classic “peace versus justice” dilemma, of the kind I’ve written about extensively in my work on conflict termination and the “justice” issues deriving therefrom.
But then I thought there is already a very, very long history of Palestinians having their “justice” claims brusquely pushed aside in favor of the promise of a future, western-led peacemaking effort… And throughout the past 61 years those efforts have never, ever led anywhere.
So today, the Palestinians are once again asked to forget about their past grievances, and to focus on a promise of some kind of a future peace settlement that, if the past is any kind of a reliable guide, may well prove quite illusory.
Lost in all this, however, is the situation of the Palestinians– in Gaza, but also elsewhere– in the present.
Is there anything the US could do about this?
Of course there is! And it’s not only the case that the US could do something to help the Gazans in the present– the US also should be doing a whole lot more than it has to date to alleviate the harm that they continue to suffer on a daily and continuing basis, since it has enormous leverage over the government of Israel.
But Washington has used not one iota of that leverage to force Israel to open Gaza’s borders up for the passage of the freight that the Strip’s 1.4 million people sorely need in order to conduct a normal, safe, and dignified life.
Winter is approaching in Gaza, where it can bring rain and some bitterly cold winds. And despite all the representations that various do-gooders have made since the parallel ceasefires wet into effect on January 18, Israel has not allowed into the Strip any of the most basic construction materials that are needed to repair the extensive damage that the IDF caused during last winter’s war, in many cases quite intentionally, to housing, schools, factories, and public infrastructure.
So maybe now is not the time to pull together a huge series of international court cases to look into the atrocities of the past. (Or maybe it is.)
And maybe we should give the US-led diplomacy one last chance to build a better future. (Or maybe not.)
But if we look only at the continuously unfolding present, then if the US does nothing to force Israel to open Gaza’s borders to the passage of vitally needed freight, then Washington will be directly complicit in the additional harms that Gaza’s people will suffer this winter.
(Meantime, in today’s statement, Rice criticized the mandate of the Goldstone Commission, and she criticized its policy recommendations. But I don’t think she questioned any of its actual findings. And those findings surely stand as the best draft we have to date of the historical record of who did what to whom in the Israel-Palestine theater in the time of the 2008-09 Gaza War. Even just as a record, the work of the Commission will be invaluable– and it can provide the basis for all kinds of court cases in the future.)

Moreno-Ocampo and the future of the ICC

The International Criminal Court started its work in 2002 with great fanfare and expectations. The hopes of its many supporters around the world (but concentrated particularly in rich western countries) was that this new court could bring a new day of “accountability” to the perpetrators of some of the most heinous mass crimes of our day.
Sadly, those hopes have not been realized. And not just because of the complete inability of the ICC to even start grappling with Pres. Bush’s perpetration of a monstrous Crime Against the Peace in 2003, and his administration’s perpetration of numerous serious war crimes subsequent to that big original crime.
But beyond that big lacuna, the way the ICC itself has gone about its business since 2002 has also been deeply, perhaps fatally, flawed… And one person who has certainly contributed to these mistakes has been the Chief Prosecutor, Argentina’s Luis Moreno-Ocampo.
Tragically, one of the main problems for this court that was meant to usher in this new era of “accountability” has been that the degree to which the court’s own major organs are– or even, can be– held accountable to the public they purport to serve is extremely limited; or, almost non-existent.

Continue reading “Moreno-Ocampo and the future of the ICC”

The ICC issue delays peace in N. Uganda (Again!)

In recent days the 1.5 million people of northern Uganda have come so close to getting their extremely harmful 22-year civil war resolved… But now, the perennially disruptive issue of what to do about the indictments and arrest warrants that the International Criminal Court (ICC) has outstanding against the leaders of the oppositionist (“insurgent”) is yet again stalling– and may yet completely prevent– conclusion of the final deal.
This report from New Vision’s Milton Olupot in Juba, South Sudan, where the peace talks have been going on, tells us that:

    The peace talks in Juba hit a snag yesterday when the Government delegation rejected the LRA demand to include a guarantee in the final peace agreement that the ICC indictments against rebel leader Joseph Kony and his top commanders will be lifted.

The ICC’s indictments against Kony and four of his associates categorize in dry manner the accusations against him. The LRA has been reliably reported to have committed a large number of very shocking war crimes and crimes against humanity. On the other hand, the Ugandan government’s security forces have also, in this confrontation, committed numerous excesses and violations of the laws of war that, while perhaps not as immediately “shocking” to western sensibilities as those of the LRA, have nevertheless probably inflicted a greater total amount of harm on the families of northern Uganda.
Yet the ICC’s indictments– which came at the end of an investigation into “the situation in Northern Uganda” that was initiated by the Government of Uganda– were only against the one side: the LRA. Of course, since the Ugandan government is the sovereign government of the whole relevant terrain and exercises strong control over access to the terrain and to the witnesses and documentation located thereon, that does kind of skew things for the ICC investigators, don’t you think?
(Unlike in Darfur, where the Sudanese government has not been able totally to control access to the contested area or to the witnesses and documentation.)
… Be that as it may, I think it is still of the utmost importance for the people of northern Uganda and indeed the whole of that country that the very damaging conflict with the LRA be resolved– soon, through negotiation, and in a way that is both politically sustainable and lays out a good path for the future.
“Amnesty after Atrocity??” you may ask in horror. If so, then go buy my 2006 book with that title, and read in particular the chapter on how the 1977-92 civil war in Mozambique was very successfully brought to an end precisely with the conclusion of a comprehensive peace agreement that– along with many other forward-looking elements– included a blanket amnesty. (The president of Mozambique is now the UN’s lead representative at the Juba talks.)
On Monday, I had the pleasure of going to talk about these issues at Washington & Lee University Law School, in Lexington, Virginia. Now, I knew that the “Lee” in the name had been Robert E. Lee, the commander of the secessionist “confederate” forces in the US civil war of 1861-65. Just as the “Washington” was George Washington, commander of the perhaps equally secessionist “American” forces during the US colonists’ more successful attempt at a UDI, back in 1776. What I hadn’t realized was that, after he surrendered his forces to Lincoln’s leading general Ulysses Grant in 1865, Lee actually became the president of this college in Lexington. My hosts there drove me past the small brick chapel where he is buried.
What does Robert E. Lee have to do with all this? Well, the Confederate (southern) forces in the US civil war also committed their share of atrocities. Both those directly related to the war (war crimes) and those perhaps not directly related to it (their attempt to uphold the institution of slavery, in general; which we can certainly classify as a large-scale crime against humanity.)
Concerning war crimes, the most egregious was probably the large-scale series of atrocities connected with the maladministration of the large POW camp the Confederates maintained at Andersonville, in Georgia. Of the almost 45,000 prisoners recorded as having been received at the camp, 12,913 died. I believe– though I don’t have the source for this to hand– that no Black soldiers from the northern forces were ever even formally “received” or registered at the camp; they were simply shot or killed in more grisly fashion, on sight. Therefore, the 12,913 deaths recorded at Andersonville considerably undercounts the number of deaths/killings of captured or surrendered northern soldiers undertaken at the hands of the CSA forces.
And yet, at the end of the civil war, Robert E. Lee was allowed to go on and live out his life as a free man, and indeed as a college president; and all the forces under his command were similarly given a “parole”, that is an amnesty, by the victorious northern government. And more or less, that approach worked, though of course the institutional disadvantagement of the the formerly enslaved African-American population of the south (and north) of the country continued for many decades further. And there were some (by comparison, fairly minor) excesses committed in the southern states by the officials sent down to the south by the north in the name of “Reconstruction.”
But yes, more or less, the blanket amnesty embedded in a political settlement of outstanding differences (in particular, the one over the ending of slavery) worked at the end of the US civil war– as it has at the end of civil wars and even international wars, throughout many centuries…
But now, the officers of the ICC, sitting in their elegant offices in the very peaceful environs of The Hague, thinking perhaps about which lovely restaurant to feast at tonight or how their generous, European-style pension plans are steadily accruing as they work, have been given the power to interrupt the process of peace negotiating in the desperate and desperately poor environs of Northern Uganda… And by and large, the “rights” activists of the western world continue to applaud the ICC.
It is a funny old world we live in. But let’s continue to back all efforts for the speedy conclusion of a peace agreement ion Northern Uganda. It is time for the many hundreds of thousands of Acholi civilians who have been confined to “IDP camps” (concentration camps) by the government, in the name of war-fighting, to be able to return to their homes.

Uganda very close to peace with the LRA?

AFP is reporting from Kampala that the Ugandan government has signed a permanent ceasefire agreement with the Lords Resistance Army (LRA). This is apparently not the total final peace agreement, though that now looks very close indeed. (“In the coming days,” according to AFP.)
The conflict between the government and the LRA, who are nearly all ethnic Acholi from the north of the country, has raged for 20 years– or much longer than that, depending how and what you count. It has been very intense for the past 12 years. Many, many years ago the government side cleared nearly all the Acholis off their lands and farms and herded them into “strategic hamlets / concentration camps” marked by extremely poor living conditions and many abuses by government soldiers. The LRA, for their part, for many years undertook repeated hit-and-run raids against both government forces and civilian populations, including the kidnapping of numerous children whom they impressed as child soldiers, sex slaves, or porters.
The challenge of resettling the war-scarred populations (Acholi and others) will be huge. The whole process of making and then building the required peace process is an enormous challenge; and it has been considerably complicated by the insistence of the International Criminal Court on prosecuting the leaders of the LRA.
You can read some of my comments about this complication– and those of other analysts far better informed than me– over at the Transitional Justice Forum blog, here.
The negotiators have been doing their work in Juba, South Sudan, where the regional South Sudan Government and its vice-president, Dr. Riek Machar, have done a lot to facilitate the peace talks. Also playing a great role has been the past president of Mozambique, Joaquim Chissano, who has been serving as the UN Secretary-General’s Special representative in the talks.
Both these leaders come from countries burdened by extreme poverty and very lengthy recent civil wars. Both have played important roles in helping to end those civil wars. So it is certainly fair to say that they know considerably more about how to make such a peace process work than either ICC bureaucrats sitting in their comfortable offices in long-peaceful European capitals or the (often very comfortably paid) westerners who work for US-based “rights” organizations.
On Tuesday, the negotiators in Juba reportedly reached an agreement on how the issue of dealing with the atrocities committed during the war will be dealt with. New Vision of Kampala reports this:

    “We have agreed that severe crimes committed by the LRA during the war will be tried under a special division of the High Court in Uganda,” said government spokesman Capt. Chris Magezi.
    The agreement said the special court division would also facilitate the protection and participation of witnesses, victims, women and children.
    “Less severe crimes can be dealt with using Mato Oput (traditional Acholi reconciliation mechanism) or even junior courts,” Magezi said.
    The LRA said it was happy with the document. “This is a very good development,” said LRA team leader David Nyekorach Matsanga.

There still seemed to be some disagreement between the two sides as to whether the ICC indictments against LRA leader Joseph Kony would actually be dropped– though the ICC’s stance that its work is “complementary” to that of the national courts as opposed to having “primacy” of jurisdiction over them indicates that they would be.
Here is another account of how the war-crimes issues will be dealt with, from the UN’s IRIN system.
The next few days look as though they will be key to getting this entire peace accord completed. Let’s hope it works out. I am still haunted by the conversation I had with a group of residents of the Unyama IDP near Gulu, back in July 2006. In the course of that, one of the participants, a peasant farmer called Angelo, said:

    Why doesn’t the ICC speed up its process and be done by August so we can can all get back to our lands for the new planting season?

That was more than 18 months (= three planting seasons) ago.
Btw, big hat-tip to Jonathan Edelstein for pointing me to some of these articles.

Let’s put Jonathan over the top!

Jonathan Edelstein, the ever-wise author of the “Head Heeb” blog and a frequent commenter here, is making yet another contribution to human betterment in the days ahead… He and his wife Naomi are both participating in a 20-mile sponsored walk on June 9-10 to raise funds for the American Foundation for Suicide Prevention.
This is a cause that’s particularly dear to my heart.
Jonathan and I both put lots of time into our participation in the blogosphere, and neither he nor I have requested a penny of compensation for any of this. (Yet. The day may come… ) But if you’d like to honor Jonathan and his thoughtful contributions to the discourse– yes, even when he disagrees with me!– then please head on over to his fundraising page where, if you have a credit card or a debit card, you can make a donation that will “sponsor” him on the walk.
As of now, he still needs $455 more in sponsorship to reach his goal of $1,000. Every little truly helps. Could you help?

Peace, justice, and war-crimes courts: the view after Iraq

    This morning I was invigilating the exam my students were taking here in Lille, at the end of the short course I’ve been teaching here on Transitional Justice and Conflict Termination. My job was to sit there and supervise all these great young people as they wrote their hearts out. So the least I could do was sit there in front of them with my laptop and also try to do some serious writing…

    This is a topic I’ve been thinking about for a while. It’s sort of a response to all those eager-beaver law profs who so breathlessly proclaimed right after Saddam’s capture in December 2003 that his trial would constitute, as they said, “a ‘Grotian Moment’ — defined as a legal develop­ment that is so signi­fi­cant that it can create new customary inter­national law or radically transform the inter­preta­tion of treaty-based law.” (Note to self: dig out photo of self with Hugo Grotius’s box taken in Amsterdam last summer. Now that was truly a Grotian moment.)

    Anyway, I’m now in the throes of grading these students’ papers, and Monday I’m off on a quick jaunt to Yorkshire. So I probably won’t get this think-piece finished for quite a while yet. As a result, I’ve decided to serialize it. This has the added advantage that y’all can submit your comments and I can then ruthlessly use your wisdom–okay, with due attribution– to improve later portions of the text. So do please post some helpful comments!

    Here’s part 1.

The war-crimes courts infatuation after Saddam

Part 1.

The record so far of the special war-crimes court established in
post-invasion Iraq to try former President Saddam Hussein and his
confederates on charges of genocide, crimes against humanity, and war
crimes has been distasteful and of great concern even to many of those
who prior to 2003 argued strongly that all these men should be
prosecuted for their crimes.  This record, the tragic
mega-violence that continues in Iraq– and also, the uneven record of
many other war-crimes courts established since 1993– between them pose new and
urgent questions to all those around the world who have argued that
criminal prosecutions are the best way to deal with individuals accused
of high-level responsibility for acts of atrocity; and indeed, that
such prosecutions are a “duty” for all members of the international

The tragic course of events in Iraq has also urgently revived old
questions about the relationship between the claims of “peace” and
those of “justice”.  Indeed, it forces us to re-examine in some
depth what it is that we in the international community mean when we
talk about “justice.”  For too many people in the international
community, the term “justice” has until now been used as easy shorthand
for “the orderly operating of a war-crimes court.”  But in the
Iraq of the past three and a half years, virtually all Iraqis have been
faced with a situation in which their most basic social and economic
rights– rights to food, clean water, safe shelter, basic medical
care– have been grossly infringed; and even their fundamental right to
life and to the physical integrity of their persons has been put in
extreme jeopardy and far too often directly infringed.  Those
abuses can and should be described  in the discourse of justice,
as constituting grave injustices imposed on the Iraqi people by the
situation of civil strife and military occupation in which they live
(or don’t live.)  Those around the world concerned with questions of
justice and eager to hold accountable those with high-level
responsibility for widespread rights abuses should surely attend to
this situation, too…

Regarding the general relationship between the claims of peace and
those of justice, it has been  popular on the left in the United
States in recent years to argue that, “If you want peace, you should
work for justice.”  I would argue that if the situation in Iraq
shows us anything, it is that there is a counter-argument of equal
validity, to the effect that “If you want justice, work for
peace.”  For in Iraq we can see very clearly that every day of continuing
non-peace that comes around is a day in which injustices– too frequently
of a grossly lethal nature– continue.  The question as to how the
claims of peace and those of justice can both be pursued in a
synergistic and constructive way is a huge one, one that sages have
pondered throughout the millennia  (and one, I should note, that
nearly always has a workable answer, though it often takes considerable
diplomatic creativity, and a real commitment to the building of a
sustainable and right-respecting peace to find it.)  But simply to
privilege the claims of a– frequently only vaguely defined– “justice”
over those of peace too often ends up bringing neither peace nor justice to those
living in situations of chronic and unresolved conflict. 

(I note, too, that the discourse of  justice has another, even
more troubling relationship with questions of war and peace.  For
this discourse has a special, privileged role within the rhetoric of war-makers
everywhere– none of whom has ever gone to war in the publicly admitted
pursuit of unjust ends! And what’s more, if one war-maker deploys the
discourse of “justice” in his venture, then you can be sure that the
leaders on the opposing side are doing exactly the same.  Given
the undeniable fact that the consequences of war always include
tremendous human suffering, this role that the discourse of justice
plays in “justifying” the acts of the war-makers should itself be
sufficient to give one pause about all absolutist claims of “justice”.)

For the US decisionmakers who took the extremely weighty decision to
invade Iraq in 2003, the venture was not supposed to turn out this
way.  There has been some debate about whether  some of these
decisionmakers in fact sought a significant diminution of the power of
the Iraq state– a supposition which remains unproven until now. 
But even those who sought that surely cannot have wanted to see the
Iraqi people suffer from the collapse of state power in their country
to anything like the degree that they have.  There is some
evidence, meanwhile, that at least some of the top US decisionmakers
viewed the occupation of Iraq as providing an opportunity similar to
the the victorious Allies had in occupied Germany and occupied Japan at
the end of World War 2: an opportunity to rebuild the occupied country
as a democratic, tolerant, and pro-American polity whose
soon-to-be-evident success would strengthen the US-led order around the
world.  On the “tolerant” bit, Japan was notably less successful
than Germany; but in general terms, both those occupation-for-democratization projects of 1945-50 were remarkably

In Iraq, pursuing that “model from 1945” seemed to the country’s US
occupiers to indicate a number of urgent policy initaitives.  It
indicated rapid de-Ba’athification,  the establishment of a
high-level (and preferably international?) court to try the top leaders
of the former Ba’athist regime, and the rapid disbanding of the
national army…

Well, actually, regarding the status of the Iraqi army after the US
victory in Baghdad, this was related to one of the three key areas in
which the situation of the US-led occupation force in Iraq differed
from that of its predecessors in Germany and Japan.

These three key differences were:

    1.  In 1945, in both Germany and Japan, the national society
    and the national state had alike been devasted by long years of
    devastating war (which included extremely fierce and lethal Allied
    bombardments of most major cities in both countries.)  In Japan, a
    weakened Emperor still survived and was able to submit a surrender and
    negotiate its terms, though from a very weak position.  In
    Germany, no national command authority survived to surrender; and in
    addition, nearly all the big military formations crumbled under the
    final assault.  There was little need to “disband” the German
    army, since it had effectively fallen apart; all that remained in the
    various parts of Germany to which demoralized small units had fled was
    to gather them up and put them into POW camps as the Allies swept in
    for their final advance.  In Iraq, by contrast, most of the Iraqi
    Army’s big units had done little or nothing to resist the Allies’
    advance.  They still existed– and equally importantly, most of
    their armories still remained intact.  When Bremer summarily
    ordered the disbanding of the entire Iraqi Army he overnight caused the
    disaffection of the hundreds of thousands of Iraqi men who had served
    in the army until then, as well as of all the family members who had
    been dependent on that man’s salary.  Moreover, these disaffected
    men had fairly good military training.  They often retained
    unbroken ties with their former comrades-in-arms.  And they had
    access to huge amounts of weapons and explosives lying in the armories
    that the occupation forces– mysteriously–did little or nothing to
    secure.  The potential in Iraq for the emergence of well-armed,
    well-trained forces that would resist the occupation regime made this
    occupation, from the beginning, very different frm that in Germany or

    2.  The US-led force that occupied Iraq in 2003 was extremely
    small compared with the forces that had occupied Germany and Japan 58
    years earlier. A study by the US Army’s Center for Military History
    records that,

On V-E Day, Eisenhower had sixty-one
U.S. divisions, 1,622,000 men, in Germany, and a total force in Europe
numbering 3,077,000.
When the shooting ended, the divisions in the field became the
occupation troops, charged with maintaining law and order and
establishing the Allied military presence in the defeated nation. This
was the army-type occupation. A counterpart of the military government
carpet, its object was to control the population and stifle resistance
by putting troops into every nook and cranny.
    In Iraq, by contrast, using as small a force as
    possible had been a big part of the war-plan developed by Donald
    Rumsfeld, who wanted to use the invasion of Iraq to demonstrate the
    effectiveness of the “small, highly mobile” forces that he
    favored.  Keeping the invasion force small also had political
    advantages for the administration both at home and abroad. 
    However, ending up trying to administer the occupation regime in Iraq
    with a force that was far, far too small for the task was another very
    consequential way in which this occupation differed from that of the
    occupations of 1945.

    3.  Finally, the US occupation regime in Iraq differed from those
    of 1945 in that it did not have within its cadre anything like the
    required amount of expertise on how to run the occupied country. 
    One example:  My father, a German speaker, had worked in British
    military intelligence since the early days of World War 2.  He
    worked on planning the landings in Normandy in June 1944; and
    immediately after those landings he was transferred to the unit that
    was already planning how to administer the occupation of Germany that
    now, after the success of D-Day, seemed clearly within the Allies’
    reach.  In 1945, as the British forces advanced into Germany, he
    moved forward just behind the first wave to start setting up the
    required structures of civil administration in the newly occupied
    areas.  He did so on the basis of his knowledge of Germany, its
    language and its people, and on the basis of having studied the
    specifics of running a military administration intensively, for the
    past year.  The US Army’s occupation officers with whom he worked
    seemed similarly well prepared.  In Iraq, by contrast, though the
    State Department had done quite a lot of earlier planning for running
    the occupation, those plans were all summarily jettisoned by Rumsfeld
    and his aides; and beyond that, Rumsfeld and his aides in the Pentagon
    made a point of trying to staff their entire occupation administration
    with people who were not
    Arabic speakers or experts on Iraqi affairs.  Instead, in line
    with many philosphical predilections of the Bushists, they outsourced
    most of the tasks of planning for an running the occupation– a job
    that was outsourced largely to the small coterie of  Iraqi exiles
    convened by Ahmad Chalabi…

The combination of these three factors meant that the
political/security environment in which the US government was trying to
run the occupation of Iraq after March 2003 was very different from the
political/security environment in occupied Germany and Japan after
1945.  So, too, was the potential for the eruption of very serious
organized violence, whether violence aimed at the occupation troops or
fratricidal violence among different segments of the occupied
population itself.  The threat and then the growing fact of both
these kinds of violence caused considerable further complications to
the project of  easily staging, in occupied Baghdad, a
re-enactment of the earlier trials in Nuremberg or Tokyo…

What do we mean by ‘Justice’ and ‘Accountability’?

    (This post has been cross-posted at ‘Transitional Justice Forum’)

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
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
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 Idiscovered the

Continue reading “What do we mean by ‘Justice’ and ‘Accountability’?”

Dave Zarembka on “Healing from slavery, war, and genocide”

David Zarembka is the coordinator of the African Great Lakes Initiative (AGLI) of the Friends Peace Teams. He has been involved with peace work in Africa since 1964. Recently, he sent me the text of an extremely insightful lecture he gave last October, titled Healing from Slavery, War, and Genocide: Lessons from John Woolman and Friends in Rwanda and Burundi.
(That latter link there is to a beautifully formatted PDF version of the text. If you want an HTML version that is faster to download, but is largely unformatted and therefore harder to read, you’ll find it here.)
I’ve known Dave a few years now. Like me, he’s a member of a Friends Meeting (Quaker congregation) that’s part of Baltimore Yearly Meeting of the Religious Society of Friends. Unlike me, he’s devoted large portions of his life to fully living out the traditional Quaker testimonies of peace-seeking and simplicity. For the past eight years he’s been working with the thousands of Quakers who live in the violence-wracked areas of Rwanda, Burundi, and eastern Democratic Republic of Congo, helping build up their capacity to do effective peacebuilding work in the extremely difficult circumstances in which they live. (You can find more information about the Quaker congregations in Africa here.) Dave, and other members of the US-based organization Friends Peace Teams, have done this by establishing and running AGLI; and in the course of this work Dave has been traveling to the AGL region twice a year or so since 1998.
The Woolman lecture is, largely, Dave’s reflection on what he has learned from this work. The whole text of the lecture is very worth reading. It contains many great stories, some deeply spiritual testimonies (and some fond things Dave says about his daughter Joy Zarembka, who’s a hardworking anti-slavery campaigner.) But at the end of the lecture, Dave sums up the lessons he has taken from his experience working with his Central African colleagues in AGLI:

    To end, let us review the lessons I have learned from these various people:
    1. Rather than run from those in conflict, let us visit them.
    2. Do not let danger deter us.
    3. Let us confront the violence in the United States so that we lessen the wars, conflicts, and economic exploitation that the United States brings to other parts of the world.
    4. Let love replace hatred. Let us restore that of God in those who have done bad things.
    5. Let us address the roots of violence in order to reduce societal and domestic violence.
    6. Let us bring enemies together to “look each other in the eye.”
    7. Let us stop judging people as “good” or “bad” but answer to that of God in absolutely everyone.
    And the unifying lesson:
    8. Let us dwell deep that we may feel and understand the spirits of people.
    Twice each year I visit the AGLI sponsored HROC programs in Rwanda and Burundi. People frequently ask me if it is depressing to visit places with such recent violent histories. There is no doubt that Rwanda, in particular, is not a happy place—people are tense, reserved, cautious, and wary rather than open, welcoming, and happy as they are in Kenya, for example. Yet I always come back, not dejected and sad, but rejuvenated and optimistic. Each time I see how Adrien, Solange, Theoneste, Sizeli, and so many, many others are working to heal the gashing wounds in their society, to bring reconciliation and even friendship to enemies, and to restore their society to a peaceful whole. Frankly when I return to the United States and see this country moving so, so swiftly in the opposite direction, that is when I feel discouraged. My calling is to work with Friends in the Great Lakes region of Africa. I have to leave it to others, like each of you who have been so kind as to listen to me this afternoon, to bring healing and reconciliation in this country.

All this is deeply in the spirit of John Woolman, an 18th century Quaker in what later became the US who was an early campaigner against slavery and a witness to the disastrous effects European colonization was having on the native peoples of North America.
I have been thinking a bit about putting a Paypal button onto this blog, and inviting readers to contribute to some of the expenses I have in my work on it. I might still do that at some point. But right now I would prefer to urge you to consider digging as deep as you can to contribute to Dave’s work with AGLI. You can do so securely online, by clicking HERE. (Or if you prefer to send a check, you’ll find the address for that on that page, too.)
And Dave: thanks so much for what you and your colleagues there at AGLI do. It is truly transformational and inspiring.

Kenyan survivors of British colonial brutality strike back

The London law firm of Leigh Day, working with six survivors of the extreme brutality used by the british colonial authorities in their attempt to crush the Mau Mau insurgency in Kenya in the 1950s, has now sued the British government for damages in the matter, “based on the tort of negligence”.
(Legal filing: here; press release here; and here is an informative article on the matter from the Guardian in October.)
As I wrote in this recent article about the recent historiography on the anti-Mau Mau campaign, the timing of that campaign, and also of the recent work of compiling and exposing the historical facts about it, are both significant. The British authorities pursued this extremely brutal campaign– in which scores of thousands of suspected Mau Mau sympathizers were killed and hundreds of thousands more dispossessed, mutilated, and/or psychologically scarred for life– some years after the exposure of the atrocities of the Nazi concentration camps in Europe, and also after the adoption by Britain and other members of the “international community” of such foundational documents as the Universal Declaration on Human Rights, the Nuremberg Principles (regarding command responsibility), etc., etc.
These colonial atrocities were carried out, moreover, recently enough that many of the participants in them– from both the perpetrating and the victimized/survivors’ side– are still alive and still medically fit to take part in a legal proceeding.
Personally, I am delighted that some– though still pitiably few– of the atrocious crimes committed during the anti-nationalist “counter-insurgency” campaigns of the “last throes” of the British Empire are finally becoming subject to some form of meaningful accountability. In France, the parallel accountability attempts haven’t gotten very far, and indeed seem to have become entangled in the snares of present-day French anti-Islamism. But still, for some years now the French public has been quite unavoidably aware of the atrocious actions in 1950s Algeria proudly confessed to by former torturer Paul Aussaresses (1 and 2.)
In general, until recently, the agenda of people working in the big, highly funded field of ‘Transitional Justice’ has been very circumscribed, limiting itself to actions undertaken by perpetrators other than the big, European-heritage conglomerates of imperial/colonial rapine who devastated the non-European world for most of the past 350 years.
Where have been the big court cases and other “accountability” projects brought and won regarding British, French, Spanish, German, Portuguese, Dutch, or US imperial depradations in Africa or Asia (or, indeed, the Americas)? Where have been the big “accountability” projects against the European-heritage governments whose still-continuing control of the international financial system has imposed “structural adjustment” on impoverished populations around the world, inflicting the entirely predictable consequences of millions of avoidable deaths and widespread civil strife, while these same rich governments have continued to shovel huge subsidies to “their own” white farmers back home? Nowhere, since ‘Transitional Justice’ has not, by and large, addressed these issues. Instead, it has poured huge resources into pursuing inconclusive criminal prosecutions of a few tinpot African malefactors (acting, generally, in the context of the IMF-induced civil strife mentioned above) along with political losers from the fringes of the “white” world like Saddam Hussein or Slobodan Milosevic.
But now, we have a lawsuit that aims at the heart of one of the imperial beasts in question.
(I am interested to see that the legal claim filed there specifies that one of the elements of evidence it will introduce is the whistleblowing report that British Quaker Eileen Fletcher published in May 1956, after she resigned from work as a so-called “rehabilitation officer” in the British camps in Kenya, and exposed something of the brutality that was being practised there under the (truly Orwellian) guise of “rehabilitation”… And other evidence will draw on information used in questions asked in the British Parliament by my grandmother’s socialist cousin Fenner Brockway– though his name is sadly mis-spelled there on p.3.)
This lawsuit is big. And I hope it will lead to a much broader redirection of the whole field of ‘Transitional Justice.’