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Ratko Mladic and the End of Impunity

31 May 2011

Ratko Mladic and the End of Impunity

by Gwynne Dyer

Last week’s arrest of the former Bosnian Serb military commander, Ratko Mladic, for the murder of 7,500 Muslim men and boys in Srebrenica in 1995, helped Serbia’s campaign for membership in the European Union. But more importantly, it is a big step in the international effort to enforce the law against those who used to be free to murder and torture with impunity.

They were free to do so because the old rule was: kill your wife or your neighbour, and you will be punished for murder. Kill thousands of innocent people while in the service of the state, and you will get a medal. The state was above the law, and so were its servants.

That ancient tradition was first challenged after the Second World War, when political and military leaders of the defeated Axis powers were tried for war crimes and for the newly defined crimes of aggression and genocide. But it was an innovation with no follow-up – until the genocides in former Yugoslavia and Rwanda in the early 1990s forced the international community to act again.

In 1993 the United Nations Security Council set up the International Criminal Tribunal for former Yugoslavia. The following year a similar tribunal was created to investigate the genocide in Rwanda. But these were ad hoc courts to address specific crimes.

What was really needed was a permanent international court to enforce the law against politicians and officials in countries where the government could not or would not bring them to justice in the local courts. The Rome Statute creating the International Criminal Court (ICC) was signed by over 150 countries in 1998, and the treaty came into effect in 2002.

Since its creation, the ICC has opened three investigations at the request of the local government (Uganda, the Central African Republic, and Congo-Kinshasa), two at the request of the UN Security Council (Libya and Sudan), and one at the initiative of chief prosecutor Luis Moreno Ocampo (Kenya). Most of the killers will escape its net, of course, but two dozen people have already gone to trial.

The ICC has no jurisdiction over crimes committed before it created, so Ratko Mladic will go before the International Criminal Tribunal for former Yugoslavia, but it’s really all part of the same institution. The major complaint against this new international legal system is that it moves too slowly – but that could even be an advantage.

It took sixteen years to track down and arrest Mladic, and his trial will probably take several more. That is a long time, but it also suggests a certain inexorability: they will never stop looking for you, and eventually they will probably get you. That has a powerful deterrent effect.

It is almost universally assumed by ordinary Kenyans, for example, that the inter-tribal carnage in Kenya in 2008 after the ruling party stole the last election was launched and orchestrated by senior political and military figures. Supporters of the leading opposition party, which was cheated of its electoral victory, began killing people of the Kikuyu tribe (most of whom backed the government), as soon as the results were announced.

The ruling party responded by using not only its own tribal supporters but also the army and police to kill opposition supporters, especially Luos and Kalenjins. Over a thousand people were killed and more than half a million became “Internally Displaced Persons.”

Another national election is due next year, and Kenyans fear that it might happen again. However, three powerful men from each side, including the deputy prime minister, the secretary to the cabinet, and the former commissioner of police, have been summoned before the ICC to answer charges of “crimes against humanity.”

There will inevitably be a long delay before these men are tried, but that is actually a good thing, said Ken Wafula, a human rights campaigner in Eldoret, the city in the Rift Valley that was the epicentre of the slaughter. “Those who are supposed to incite will see what ICC has done, and they will not be ready to (stir up violence) for fear of maybe a warrant coming out.”

Many suspect that the Sudanese regime’s acceptance of the overwhelming “yes” vote in the recent independence referendum in southern Sudan was similarly driven by fear among top officials in Khartoum that using force would expose them to the same kind of ICC arrest warrant that has already been issued for President Omar al-Bashir over the Darfur genocide.

So long as they stayed in power, of course, they would be safe. But what if the wave of democratic revolutions sweeping the Arab world comes south to Sudan? They would become hunted men, and probably be handed over to the ICC for trial. So they seem to have opted for the peaceful path instead.

Even after sixteen years, the ICC got Ratko Mladic. It got most of the surviving organisers of the genocide in Rwanda. The likelihood of being pursued by the ICC represents a real risk for senior political and military leaders who contemplate using force against their own people. They may do it anyway – consider Libya, Syria and Yemen at the moment – but it is nevertheless a genuine deterrent, and sometimes it saves lives.
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To shorten to 725 words, omit paragraphs 6 and 14. (“Since…trial”; and “So…instead”)

Gwynne Dyer is a London-based independent journalist whose articles are published in 45 countries.

Omar al-Bashir: Politics and the Law

16 July 2008

Omar al-Bashir: Politics and the Law

 By Gwynne Dyer

All the opposition groups in Darfur celebrated when the prosecutor of the International Criminal Court announced on 14 July that he was seeking the indictment of Sudan’s President Omar al Bashir on the charge of genocide, but almost everybody else had a problem with it. They don’t doubt that Bashir is a ruthless dictator who is guilty of ordering many thousands of deaths. They just think that putting him on an international “wanted” list is unwise.

Tanzanian foreign minister Bernard Membe, speaking on behalf of the African Union, said: “We are asking for the ICC to re-examine its decision….If you arrest Bashir, you will create a leadership vacuum in Sudan. The outcome could be equal to that of Iraq.” Membe and many other people fear that the indictment of Bashir, far from ending the conflict in Darfur, could reignite the much bigger civil war between northern and southern Sudan.

Andrew Natsios, the former US special envoy for Sudan, was equally worried that the ICC was playing with fire: “This indictment may well shut off the last remaining hope for a peaceful settlement (for Darfur).” United Nations Secretary-General Ban Ki-moon phoned Bashir personally to assure him that the ICC is quite separate from the UN. In Khartoum there was defiance from Bashir personally, but also warnings from opposition leaders that this was not a good idea.

The Sudan People’s Liberation Movement, which led the predominantly African and Christian south of the country in the 22-year civil war, was emphatically not for rocking the boat right now. The SPLM spokesman said that “indicting (Omar al-Bashir) has created a dangerous situation in Sudan threatening peace and stability in the country.”

What is at stake, in the SPLM’s view, is the 2005 peace deal that gave the south its autonomy, and promised elections for next year in which the south could choose independence from the mainly Muslim and Arabic-speaking north if it wants. The election might also bring democracy to Sudan (or to the two halves, if they separate), after nineteen years of Bashir’s dictatorship.

An estimated two million people died in the north-south civil war, compared to perhaps 200,000 in the past five years in Darfur. Nobody wants to go back to that, and with oil revenues starting to build up, both the northern and the southern political elites have every incentive to make the deal work.

Sudan is in the midst of a difficult but still promising transition, but it may not succeed if Bashir’s only choices are to live as a hunted criminal facing arrest and trial on genocide charges, or to cling to power forever. More immediately, his indictment could wreck the possibility of a peace deal to end the war in Darfur. So most of the northern opposition parties opposed the ICC’s action, too.

But that is irrelevant to the International Criminal Court, because it is not a political organisation. It is a COURT, and courts operate by different rules. It may be politically inconvenient to indict Bashir right now, but as the prosecutor, Luis Moreno-Ocampo of Argentina, said last week, “I don’t have the luxury to look away. I have the evidence.”

Moreno-Ocampo, and the three judges (Ghanaian, Lithuanian and Brazilian) who must now decide whether or not to indict Bashir, and the whole ICC, are quite rightly barred from taking political considerations into account. They are there to administer the laws.

The law in question is the new international law that seeks to make even senior military and political leaders legally responsible for genocide, crimes against humanity, and war crimes. Since such people are unlikely to face legal action in their own countries, which are generally tyrannies of one sort or another, it must be done at the international level. Hence the creation of the ICC in 2002.

The ICC is a fragile new growth that challenges the old de facto rule that sovereign states can forgive themselves and their servants for any abuse or atrocity, however wicked. 147 countries have signed the treaty that created it, although neither China nor India accepts the ICC’s jurisdiction, and the United States and Israel have both “unsigned” the treaty.

The most powerful states are always the most reluctant to give up their sovereign powers in the interests of international law, so the rest of the world tends to go ahead without them, on the assumption that they will catch up later. In the meantime, the main problem for those who do support the ICC is to remember that they are trying to build the rule of law in the world, not to solve some local problem.

It is important that Sudan finally gets peace and prosperity, after endless years of war, tyranny and poverty. It is even more important that leaders who commit genocide, crimes against humanity and war crimes know that they will have to answer to an international court.

In the end, these two goals are probably not irreconcilable. Or do you really think that Sudan’s political elites are so stupid and supine that they will let their whole future be wrecked in order to protect one brutal, blood-soaked general who has long outlived his usefulness?

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To shorten to 725 words, omit paragraphs 11 and 12. (“The ICC…problem”)

International Court (ICC)

7 August 2003

Why We Need an International Criminal Court

By Gwynne Dyer

Plea-bargaining happens in most courts, so nobody was upset last month when former Serbian police officer Darko Mrdja, after a year in the custody of the International Criminal Tribunal for the former Yugoslavia, changed his plea to guilty of having massacred over 200 Croatian and Muslim men in August, 1992. He will probably get a lighter sentence, but the court will save a lot of time, and maybe Mrdja will testify against his former colleagues as well.

In an imperfect world, this sort of corner-cutting can be tolerated, but what are we to make of the haggling that is going on to get indicted war criminal Charles Taylor out of the presidency in Liberia? He wants an amnesty as the price of leaving, and it looks like he’s going to get it.

The United Nations-backed Special Court for Sierra Leone has already lost one of its big fish, Foday Sankoh, the back-country warlord who chopped off hands, arms and legs in a reign of terror that killed 70,000 Sierra Leoneans. Sankoh died of a stroke this year after over two years in custody, but no trial. Now it’s likely to lose Charles Taylor as well.

Taylor trained with Sankoh in Libyan guerilla camps, and even before his own rebel movement came to power in Liberia in 1997, he was in league with Sankoh to keep Sierra Leone in turmoil so that they could jointly loot the country’s rich diamond deposits. The Special Court for Sierra Leone issued a 17-count indictment against Taylor in June, but restoring peace in Liberia means getting Taylor out, and it’s simpler and cheaper to do it with his cooperation. So moves to give him “a safe haven” in Nigeria began in early July.

“Nigeria will not be harassed by any organisation, or by any country, for showing this humanitarian gesture,” said Nigeria’s President Olusegun Obasanjo. He need not worry, for the Special Court in Sierra Leone has little reach beyond that country’s borders: the man who is responsible for around 200,000 deaths in Liberia will probably get away scot-free. And this is why we need the International Criminal Court.

Current attempts to bring genocidal killers to justice around the world are scattered and stumbling. Cambodia has just announced that only the ten most senior surviving Khmer Rouge leaders will stand trial for the slaughter of the killing fields’ that cost 1.7 million lives in the late 70s. Prime Minister Hun Sen, a former Khmer Rouge commander himself, was able to limit the trials to this relative handful, a quarter-century late and before a tame local court, because no established international authority could insist on anything else.

Or look at the US and British attempts to remove Carla Del Ponte as chief prosecutor for the International Criminal Tribunal for Rwanda. The stated reason is because she is too busy as chief prosecutor for former Yugoslavia, but it’s really about stopping her from expanding the indictments beyond members of the former Hutu government to include members of the current Tutsi-led government of Rwanda. Since she serves at the pleasure of the Security Council, the US and Britain may well get their way.

If no permanent and independent body has the authority to deal with this sort of crimes, then it will be politics that decides who is punished and who gets off. The International Criminal Court, which came into formal legal existence on 1 July 2002, was designed to move the world on from that primitive system. But it is under heavy assault by the current US administration, which loathes the very idea of the ICC. Why?

The United States says that it fears that American service personnel engaged in international peacekeeping operations might become victims of nuisance prosecutions brought by the ICC, whose judges it does not control. As UN Secretary-General Kofi Annan recently pointed out, however, no UN peacekeeper of any nationality has ever been accused of a crime “anywhere near the crimes that fall under the jurisdiction of the ICC”: mass rape and mass murder, genocide, even cannibalism. The real US objection is ideological.

The ICC has become an obsession of the Bush administration, which sees all international structures that are beyond Washington’s control as potentially hostile curbs on the exercise of American power. Latterly Washington has even been cutting military aid to poor countries that refuse to sign treaties promising never to hand American personnel over to the ICC.

Yet the ICC is up and running. Its eighteen judges — distinguished jurists from eighteen different countries — were selected last year, and chief prosecutor Luis Moreno Ocampo, a former prosecutor of the Argentine junta, was inaugurated in June. There are two hundred files awaiting investigation (not one of them involving Americans), and the first case brought before the court will probably deal with the horrors committed in the Congo civil war.

It will take time for the ICC to have an impact, because it cannot deal with crimes committed before July, 2002. It will take even more time because of American attempts to sabotage it, but since US hostility is driven by ideology rather than national interest, that could change as soon as the next administration. The goal is to create a single standard and a single authority for dealing with genocide, war crimes, and crimes against humanity when local governments are unable or unwilling to act. Ten years from now we will probably be a lot closer to that goal.

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To shorten to 725 words, omit paragraphs 5 and 7. (“Nigeria…court”; and “Or look…way”)