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Duterte and the ICC

Here’s the good news. Last February the International Criminal Court at The Hague opened an inquiry into alleged crimes against humanity committed by President Rodrigo Duterte of the Philippines as part of his ‘war on drugs’.

Now for the bad news. True to form, Duterte replied that the Treaty of Rome which created the ICC was “all bullshit” and that the court was only backed by “white idiots”. He then announced that the Philippines was withdrawing from the ICC “effective immediately”.

Actually, he may not be able to do that unilaterally, because the Rome Treaty was ratified by the Senate of the Philippines and probably has to be abrogated by the same body. (Legal opinions vary.) But Duterte does control the Senate and could do it eventually, if he cared about legality.

He’d still have legal problems, because the Philippines was subject to the treaty when he ordered many of his murders. Even if the Senate did cancel the treaty, the country would stay subject to it for another year. But nobody is going to arrest Duterte now, and he doesn’t seem worried about the future either.

Duterte later warned that any UN investigator arriving in the country would be arrested. Having settled the matter to his own entire satisfaction, he then went back to killing people. Death threats and death squads are his favourite political instruments, and his weird political charisma would evaporate if he wasn’t killing people.

He is not too picky about who does the work for him, either. Ten months ago he pulled the national police from his ‘war on drugs’ because they were “corrupt to the core”. (True.) But the number of killings dropped because the specialised anti-narcotics force, the Philippine Drug Enforcement Agency, lacked the manpower to keep the killing rate up.

By May, therefore, Duterte was letting the national police take part in the drug raids again. His sole concession to reality was to gather a hundred police who were facing complaints of rape, kidnapping and robbery and tell them last week, on national television, that they too would face summary execution if they didn’t straighten up. “If you’ll stay like this, son of a bitch, I will really kill you,” he said.

So Duterte is undeterred by ICC’s interest in his case and the slaughter continues unabated. Official statistics say that 4,000 small-time drug dealers (and cases of mistaken identity) have been killed; the 77-page report submitted to the ICC by Filipino lawyer Jude Sabio says more than 8,000. Yet public approval of his actions is not far down from the landslide support he got in the 2016 election.

Everybody knows that in these circumstances, there is zero probability of Duterte having to answer for his actions before a court. Even later, when circumstances may have changed, the chances of bringing him to justice are slim. So what is the point of bringing an ICC case against him?

One reason is that this is the first major ICC investigation that targets a non-African regime. There were good reasons why all previous ones involved African regimes: the continent is home to one-third of the world’s countries, most of its dictatorships, and most of its wars. Nevertheless, even competent, law-abiding African governments were starting to feel victimised, and it helps to have an Asian country on the list.

But more importantly, this is part of a much broader initiative to bring the rule of law to a domain where legal justice was previously unavailable. Where can individual citizens turn to get protection of their own rights (including the right to life) against the government of a sovereign state that does not obey its own laws? Like that of Rodrigo Duterte.

Obviously, this enterprise is not doing very well at the moment. The governments of the great powers refuse to let any higher court have jurisdiction over their treatment of their own citizens, and even lesser powers cannot be forced to accept the jurisdiction of the ICC, which has neither an army nor a police force. Duterte will probably never have to answer for his crimes.

No surprise here. Most crimes go unpunished everywhere, and there will never be universal justice. Nevertheless, the effort to create an international legal order is worthwhile, and not foredoomed.

The ICC was not created to overthrow people like Rodrigo Duterte, who was, after all, elected by the Filipino voting public. Its real function is provide a legal pathway for punishing the members of a criminal regime AFTER it has collapsed – and if possible to make that eventual legal reckoning so certain that it is even deters those criminals who are still in power.

So it is doing what it should, and it’s far too early to say that its actions are futile.
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To shorten to 675 words, omit paragraphs 6 and 7. (“He is…he said”)

The Iconoclast of Timbuktu

Nobody got punished for blowing up the giant Buddhist statues in Afghanistan’s Bamiyan Valley in 2001. Nobody has been sent to jail for blowing up much of the ancient city of Palmyra in Syria after ISIS captured it in May 2015. (It was recaptured last March.) But Ahmed al-Mahdi is going to jail for a long time for destroying the religious monuments of Timbuktu, and he even says he’s sorry.

Appearing befor the International Criminal Court in The Hague on Monday, the former junior civil servant in Mali’s department of education said “All the charges brought against me are accurate and correct. I am really sorry, and I regret all the damage that my actions have caused.”

He caused a lot of damage. Timbuktu is a remote desert outpost now, with fewer residents than the 25,000 students who thronged its famous Islamic university in its golden age in the 16th century. Its ancient mosques and monuments are of such historical value that they have earned Timbuktu (like Banmiyan and Palmyra) a UNESCO designation as a World Heritage Site.

Timbuktu’s greatest treasure was its tens of thousands of manuscripts dating from the 12th to the 16th centuries, which dealt with topics as diverse as literature, women’s rights, music, philosophy, and good business practice

When Al-Qaeda in the Islamic Maghreb (AQIM) stormed into Timbuktu in 2012, the heroic librarian Abdel Kader Haidara saved 95 percent of the city’s manuscripts by smuggling them out to Bamako, Mali’s capital, by car and boat. But the mosques and the mausoleums could not be moved, and Ahmed al-Mahdi was recruited to head the “morality police”. One of his jobs was smashing the ones that were “idolatrous”.

Al-Mahdi, born near Timbuktu, was already a follower of Wahhabism, an austere Islamic sect of Saudi Arabian origin that condemns ordinary people’s reverence for ancient mausoleums and religious shrines as idolatry. So to protect people from sin, historic buildings, tombs, etc. must be destroyed. (Back home, the Wahhabis have pretty well finished the job in Mecca by now.)

AQIM, like ISIS and the Taliban, is “Salafi” in its beliefs, but Salafism is essentially an offspring of Wahhabism with added extremism. So Ahmed al-Mahdi was an obvious recruit for AQIM, and he threw himself into his new job with enthusiasm. He is charged with destroying nine mausoleums and part of one mosque, but he almost certainly vandalised many more.

Malian and French troops drove AQIM out of Timbuktu in 2013, and al-Mahdi was captured shortly afterwards. As head of the morality police he supervised the whipping of smokers, drinkers and “impure” women, the stoning of adulterers, and the execution of “apostates” – but the charge that the International Criminal Court chose to bring against him was “destroying cultural heritage.”

This is a first for the ICC, the world’s permanent war crimes court. Its previous cases have all involved illegal violence against people. This case is about violence against things.

Even if they are things sacred to many people, some critics worry that expanding the category of war crimes in this way undermines the unique status of torture, murder and genocide as crimes so terrible that they require international action if local courts cannot deal with them. Mali requested that the case against al-Mahdi be transferred to the ICC, but the question still begs an answer.

You won’t get it from al-Mahdi, who just wants to apologise: “I ask forgiveness (from the people of Timbuktu), and I ask them to look at me as a son who lost his way.” Maybe he means it, and maybe it’s just a plea bargain. (The prosecutor is only asking for a prison sentence of 9-11 years, although the maximum penalty is 30 years.) But whether his contrition is genuine is not really the question.

It’s a very old crime. Gangs of Christian monks (the original iconoclasts) hacked the noses off every “pagan” statue they could find in 4th-century Egypt. Catholic missionaries in 16th century Mexico supervised the burning of thousands of illustrated books containing the history and mythology of the pre-Columbian civilisations: fewer than twenty survive.

The Islamist vandals of today belong to a long tradition, and none of their predecessors was punished. So is the ICC of today just picking on Muslims?

No. Genocide was only defined and made illegal by the Nuremburg trials in 1945-46, although history is full of other genocides. But the world was not picking on Germans. We had just reached a point in our history when we could finally agree that genocide was always and everywhere a crime against humanity.

Making the act of deliberately “destroying cultural heritage” a crime is another, lesser step in the same process of building a body of international human rights law that applies to everybody. Al-Mahdi just happened to come along at what was, for him, the wrong time.
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To shorten to 725 words, omit paragraph 11. (“You…question”)

Omar al-Bashir and International Law

Sudan’s President Omar al-Bashir, facing an arrest warrant from the International Criminal Court (ICC) for genocide and war crimes, fled from an African Union summit meeting on Monday before the conference ended. The South African High Court was going to order him arrested and handed over to the ICC, but the South African government let him fly out of a military airport near Pretoria.

There is outrage in South Africa at this breach of the law, but there is also a belief in the rest of the continent (especially among national leaders) that the ICC is prejudiced against African countries. Is the ICC out of control, or is it just trying to do its job?

President Jacob Zuma’s government had a serious public relations problem. In the past month South Africa has seen a great deal of xenophobic violence against illegal immigrants and their property. It’s embarrassing for Zuma, and clearly contrary to the spirit of African solidarity, so he felt that he couldn’t let an African head of state be arrested while attending an AU summit in his country.

The resentment of poor South Africans at the presence of so many illegal immigrants from other African countries (probably between 5 and 10 percent of the population) is understandable but inexcusable. The right solution is for South Africa to take control of its borders, but meanwhile Zuma has to placate his African Union partners.

Zuma had to sneak Bashir out of the country because South Africa’s High Court is still independent, and it was about to rule that Bashir must be handed over to the ICC for trial. Indeed, Judge Dunstan Mlambo did rule exactly that – “The government’s failure to arrest Bashir is inconsistent with the Constitution” – only hours after Bashir fled.

Well, obviously. Since South Africa is one of the 123 countries that signed up to the ICC, it is legally obliged to enforce its arrest warrants. Some other African countries also take the ICC seriously. In 2012 an AU summit was moved from Malawi after the government refused to let Bashir attend, and in 2013 the Sudanese president had to leave Nigeria earlier than planned after a rights group went to court to compel the authorities to arrest him.

But most African governments now ignore ICC rulings because, they claim, the court only targets African criminals – and it’s true that all the arrest warrants now in force are for Africans. This understandably causes deep suspicions in the African continent.

Under the same international laws, shouldn’t former US president George W. Bush be indicted as a war criminal for illegally invading a sovereign country, Iraq? No, actually, because the ICC can only arrest the citizens of countries that have signed up to the ICC, and the United States hasn’t. (Neither has Sudan, but there is an exception for war criminals who are specifically designated by the United Nations Security Council, as Bashir was.)

The wounds of colonialism are still raw, and it just feels wrong. But which of these people would you want to drop from the list?

Joseph Kony, the self-proclaimed prophet whose Lord’s Resistance Army murdered tens of thousands of innocent people in northern Uganda and adjacent countries?

Jean-Pierre Bemba, a former Congolese rebel leader who is on trial for crimes against humanity and war crimes over alleged cases of murder, rape and pillage in the Central African Republic in 2002 and 2003?

Or Ivory Coast’s former President Laurent Gbagbo, who faces four charges of crimes against humanity – murder, rape and other forms of sexual violence, persecution and “other inhuman acts” – in the violence that followed disputed elections in 2010?

None of these men are being lynched. They have just been summoned to face a trial, with all the legal rights they are accused of denying to others. And in most cases, the prosecution have been undertaken with the support of the relevant African country.

African countries dominate the list for two reasons. One is that more than half the world’s wars are in Africa. The other is that African countries, so vulnerable to violence, have a strong interest in establishing the rule of law, and most African lawyers and senior civil servants understand that.

They are often thwarted by their presidents and prime ministers, who belong to a very exclusive club. African leaders are as prone as any other interest group to try to exempt themselves from rules that hold them legally responsible for their actions. The ICC has also made mistakes, like bringing cases against senior politicians when there was no realistic chance of getting the evidence needed for a conviction (like President Uhuru Kenyatta in Kenya).

But even if it fails much of the time, the ICC is a worthwhile enterprise. It is part of a long-term effort to build a world that is ruled by law, not by force, even if that goal is still a century in the future – and in the meantime, it occasionally gives the victims justice right here in the present.
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To shorten to 725 words, omit paragraphs 4 and 8. (“The resentment…go”; and “Under…was”)

The African Union and the ICC

14 October 2013

The African Union and the ICC

By Gwynne Dyer

Surprise of the week: the club of African presidents (aka the African Union) has held a special meeting and declared that African presidents should be immune from prosecution for genocide, crimes against humanity and war crimes while they are in office. They are taking this step, they say, because the International Criminal Court is unfairly targeting Africans: all eight cases currently under investigation are about crimes committed in African countries.

“We would love nothing more than to have an international forum for justice and accountability, but what choice do we have when we get only bias and race-hunting at the ICC?” said President Uhuru Kenyatta of Kenya (who by a strange coincidence is currently under indictment by the ICC). “The ICC…stopped being the home of justice the day it became the toy of declining imperial powers.”

The AU is not demanding perpetual immunity for its presidents. It only wants to reject the evil meddling of Western imperialists, and to keep African heads of state free from prosecution while they are still in office. What could be more reasonable than that?

So Uganda’s Idi Amin, Muammar Gaddafi of Libya, Sekou Toure of Guinea and other African mass murderers who actually died in office would have been liable for prosecution as soon as they retired, if they ever had retired and if the ICC had existed at that time. Their victims would have had justice at the last, if only posthumously.

If the AU gets its way now, the victims of current African leaders who commit crimes against humanity will only have to wait until they retire to see justice done. True, some African leaders stay in power for a long time – e.g. Teodoro Obiang Nguema of Equatorial Guinea (32 years), Jose Eduardo dos Santos of Angola (32 years), Robert Mugabe of Zimbabwe (31 years), and Paul Biya of Cameroon (29 years) – but Africans are patient people.

Except that they may not be that patient any more. Twenty years ago the accusation that the ICC is just an instrument of imperialist oppression and Western racism would still have played well in Africa, but the audience has got a lot more sophisticated. The AU’s modest proposal has been greeted with an outcry all over the continent, from Africans who know that their leaders can be just as cynical and self-serving as leaders anywhere else.

The most eloquent protest came from Archbishop Desmond Tutu, the 82-year-old hero of the anti-apartheid struggle in South Africa. “Those leaders seeking to skirt the (ICC) are effectively looking for a license to kill, maim and oppress their own people without consequence,” he said. “They simply vilify the institution as racist and unjust, as Hermann Goering and his fellow Nazi defendants vilified the Nuremberg tribunals following World War II.”

So is the ICC really a racist organisation that unfairly targets African states? The fact that all eight cases currently being prosecuted involve African countries certainly sounds suspicious. So does the fact that three of the five permanent members of the United Nations Security Council, which has the right to refer cases to the ICC, have not accepted the court’s jurisdiction themselves. But things are more complicated than they seem.

One hundred and twenty-two countries have already ratified the Treaty of Rome that created the ICC in 1998, including two-thirds of the countries in Africa and all the countries in Latin America except Cuba and Nicaragua. The Chief Prosecutor of the ICC is an African (Fatou Bensouda of Gambia), as are five of its eighteen judges.

The anomaly of Security Council members that have not ratified the treaty themselves (China, Russia and the United States) voting to initiate prosecutions before the ICC is definitely a problem. But only two of the eight current cases, in Libya and Sudan, were started by a vote of the Security Council, where Western influence is relatively large.

Four of the eight cases now before the Court (Uganda, Mali, Democratic Republic of the Congo, and Central African Republic) were referred to the International Criminal Court by the African countries themselves. Two were begun by the ICC’s Chief Prosecutor (Kenya and Côte d’Ivoire). And only two of the seven new cases now under consideration (Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria) are in African countries.

This is not a conspiracy against Africa, nor is the AU defending African rights. It is an exclusive club of African presidents that is attempting to get its own members, the leaders of Sudan and Kenya,off the hook, and to protect the rest of the membership from any future legal proceedings.

As former UN Secretary-General Kofi Annan said, it would be a “badge of shame” for Africa if they get away with it, but they may not. They can easily dismiss the opinions of the “international community” (whatever that is), but they may find it harder to ignore the indignation they are arousing among their own citizens.

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To shorten to 725 words, omit paragraphs 4 and 10. (“So…posthumously”; and “The anomaly…large”)