Thanks to Running Chicken, I found an excellent new article by Hunjoon Kim and Kathryn Sikkink: Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. The article basically concludes that:

We find that human rights prosecutions after transition lead to improvements in human rights protection, and that human rights prosecutions have a deterrence impact beyond the confines of the single country. We also explore the mechanisms through which prosecutions lead to improvements in human rights. We argue that impact of prosecutions is the result of both normative pressures and material punishment and provide support for this argument with a comparison of the impact of prosecutions and truth commissions, which do not involve material punishment.

If the article’s findings are correct and the statistical methodology is sound, then this is a great finding and can really help international justice move forward more confidently in the future. I am especially impressed by the finding that the normative impact of prosecutions has actually resulted in deterrence, since many have argued that international justice has not been communicated well on the ground, thus resulting in little impact on deterrence. More quantitative studies should be done on this particular question to further confirm these conclusions.

One of the questions that I had when I first read this was whether there would be a difference between post-conflict transitional justice and justice during conflict - such as the intervention of the ICC. Certainly, post-conflict transitional justice is often undertaken by regimes that are willing to prosecute members of a previous regime, and it would be understandable for those countries to ultimately have a better human rights record. However, the same cannot be said for international bodies undertaking prosecutions during a conflict, as indicted war criminals could simply exacerbate repression and continue to flout international law.

However, they addressed these questions as well, finding that prosecutions under civil wars do not have a different impact on repression than those in peace; indeed, prosecutions during civil wars may even lead to greater improvements on human rights records than prosecutions during peacetime. This is an incredible and truly groundbreaking finding, because it has applied statistical methods to the peace v. justice argument that has thus far been based on mostly qualitative case studies.

Indeed, I do think that many people are coming to the conclusion that the peace versus justice is a false dichotomy. While there was at first much backlash regarding cases in Uganda and Sudan, ultimately those who are indicted are responsible for massive human rights violations; while “peace” might depend on them temporarily, it would probably be best in the long-run if those responsible are simply taken out of the picture. I think the question now shouldn’t be whether we should wait to indict a war criminal or not, but should be about the enforcement of these arrest warrants. Faster and more efficient ways of apprehending war criminals would not only contribute to the deterrence effect, but it would also reduce the possibility of an indicted perpetrator continuing to wield power and exacerbate conflict at home.  Certainly, the challenges are numerous — but I really do think the next step should be to innovate better ways to arrest war criminals and gain international cooperation for their work, rather than to continue the debates about peace versus justice.

Recently, I wrote a post about the injustice of international justice – that war criminals are given decent living conditions and fair trials, while more petty criminals are denied the same. I ran across a very related argument in an excellent article: After Arusha: Gacaca Justice in Post-Genocide Rwanda by Alana Tiemessen. Here it is:

Local prisoner support for the ICTR is very low. The U.S.-based Internews Network has shown what are known as the “Arusha Tapes” in Rwandan prisons to give genocide suspects a view of what has been happening in the ICTR trials and to encourage debate on Rwanda’s own judicial process. Ironically, while the tapes are meant to generate support for the tribunal, they have had opposite effect on local prisoners. The reactions to the tapes have revealed concerns among the prisoners over the absence of the death penalty at the tribunal and the luxurious living conditions of the tribunal prisoners as compared to those of the Rwandan prisons. The issue of the death penalty is significant because it is used by the national courts in Rwanda but not at the international tribunal. One prisoner replied, “why is it that the tribunal gives them more lenient sentences than us, they are the ones who told us to kill on radio . . . how come we are paying the higher price?”

The objections and shock registered by the prisoners to the Arusha Tapes were reflected in their support of the Gacaca process as an appropriate and fair judicial process. Awareness and acceptance of the community courts is evidenced by the high and increasing number of confessions among the prisoners, numbering in the tens of thousands, and a willingness to provide testimony and evidence against other genocide suspects. (p. 62)

The above quote really highlights how those who are most responsible are often given luxurious situations in comparison to the rest of the perpetrators. However, the truth is that national justice sectors - especially in Rwanda - are simply not well equipped to try thousands of genocidiares in a relatively short time period. That is why more funding and assistance is necessary to immediately begin building up national justice sectors as well. If all the funding and attention goes to international tribunals, then national justice systems do not develop simultaneously as most people seem to hope - but simply continue to be underdeveloped and lack the resources needed to try massive numbers of perpetrators.

That’s why, in Rwanda, Gacaca seems to offer a promising alternative which requires much less funding since it is based at the community-level. However, Gacaca suffers from it’s own problems - most dangerously that it is fueled by the same ethnic tensions that resulted in the genocide, lacks due process and does not always provide ‘fair’ trials to the accused, and can result in another form of “victor’s justice.” This isn’t necessarily the most promising route to take in the long run, and the international community shouldn’t forget about national justice sectors while looking at alternative mechanisms like Gacaca.

Still, the idea of communities trying those responsible for the genocide and then reintegrating the perpetrators into their societies is indeed powerful - and can seem a more fair alternative to allowing perpetrators to languish indefinitely in national prisons. It is certainly a step forward, but is by no means a panacea.

Also, happy new year to all!

Charles Taylor Trial (Credit: BBC)

I just ran across this fascinating Time interview with Stephen Rapp, who was previously chief prosecutor for the Special Court for Sierra Leone (H/T Shelby Grossman). Rapp states:

The concern all of us had was that we were conducting justice in a comfortable courtroom with long trials and well-paid attorneys. Prisoners had single cells, and they had committed the worst crimes. A mile away in the local prison there were simply no resources. Cases can’t go forward, witnesses are lost, and people stay in detention for many years at a stretch. [If I was] to do it over, I would try to develop a court within the national system. That would be my preference. Maybe not a court that costs $30 million a year like the Special Court, but an appropriate court.

This is something I thought about while writing the post “Villains & Supervillains,” after my trip to The Hague with the ICC Student Network last year, but never fully articulated.

I understand that many of these “supervillians” - war criminals, genocidaires, leaders who have led crimes against humanity, are some of the worst perpetrators in that world. For that reason, they receive special attention, and they are given fair trials and adequate living conditions. They are allowed to represent themselves in court, and a great deal of attention is paid to their trials to ensure they are truly fair. This all makes complete sense, because their trials are, and should be, high profile and well publicized in order to draw attention to their horrific crimes and resulting punishments, and thereby contribute to ending the atmosphere of impunity worldwide. Without fair trials and without widespread publicity of these proceedings, there is no chance that the justice being done will deter future perpetrators (though the possibility of deterrence itself is arguable).

But the greater travesty and grosser injustice is the fact that we are pumping millions of dollars into international courts which have doubtful impacts, and are simultaneously completely ignoring the life-threatening conditions in the national justice systems of many developing countries. Isn’t this ironic? While war criminals are getting the royal treatment, everyday people - many of them poor - are arbitrarily detained in various African countries, often for stealing a piece of bread or for political reasons. In many African countries, torture continues to be widespread as an interrogative tool despite laws in the books prohibiting it.

In the Democratic Republic of Congo (DRC), 80% of prisoners are in pre-trial detention, and there is no law criminalizing torture. In Kenya, even petty offenders must wait an average of 5 years to have their case heard. In Kampala, Uganda, many prisons are overcrowded, often at 300% of capacity. And in Nigeria, women are held alongside men in prison, often leading to rape and sexual violence. In Zimbabwe, news reports have shown emaciated inmates starving to death from lack of food, often forced to catch and eat rats to survive.

The criminal justice systems of many developing countries are in far worse conditions than that of the U.S., and are arbitrary, unfair, and life-threatening. If the international community devoted one-tenth of the attention to this issue as they do to providing fair trials to supervillains, then many more innocent lives would be saved.

As the status quo stands, a guy who is responsible for the genocide of thousands gets a lawyer of his own and a fair trial, while the poor, innocent, arbitrarily detained are tortured and starve to death without ever having access to counsel. Is this fair, or just? I don’t think so. This doesn’t mean we should pay less attention to war criminals, but that we should work harder to ensure a fair trial to those who are not.

I’m pretty upset right now. I’m angry, and I usually don’t get this fired up about things. In fact, I’m so angry that I feel like punching a wall or screaming from frustration. But I know anger leads to nothing, so here I am channeling that anger into a blog post.

Yesterday, as is common knowledge by now, the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Al-Bashir on counts of war crimes and crimes against humanity (notably, genocide wasn’t included).

Immediately afterwards, Al-Bashir began expelling aid groups and NGOs from Sudan. He’s moved against about 10 foreign aid agencies so far, which provide essential aid to about 2.7 million people who are homeless due to the war in Darfur, and help to reconstruct South Sudan after decades of civil war. The expelled organizations include Oxfam, which provides humanitarian aid to about 600,000 people; Doctors Without Borders France and Holland, providing medical care to over 200,000 patients; and other organizations like the Norwegian Refugee Council, Save the Children UK, Care, Action Contre La Faim, the International Rescue Committee and Mercy Corps. Change.org has an excellent post about how many people will be affected as a consequence. The organizations were told to leave the country within 24 hours, having had their registrations revoked and some assets seized.

UN Secretary General Ban Ki-Moon said that “this represents a serious setback to lifesaving operations in Darfur,” according to his spokeswoman.

Seriously? That’s a vast understatement! This is not a “setback” but Genocide, Part II. So many who were depending on aid agencies for everyday needs will now be left in the dust. Millions of lives will be affected, and I don’t think its anything short of genocide. And the worst of all? It has all been set off by the ICC’s indictment of Al-Bashir. The ICC comes in with the noble goal of “justice for all” and with the idea that even amidst a complex conflict, such an arrest warrant is good for the country. There have been so many debates about the ICC and its negative effect on the ground. There are many arguments that justice doesn’t impede peace, and is absolutely necessary. This is true, but this latest backlash confirms my view — we have to consider, realistically, the lives that will be affected on the ground — before pursuing grandiose visions of justice. Peace and justice go together. True, in the long run. But by failing to seriously consider ongoing conflicts and attempts for peace - justice, too, can fail.

President Omar al-Bashir

Tomorrow, Wednesday March 4 2009, the International Criminal Court (ICC) will issue a decision concerning the arrest warrant for Sudan’s President Omar al-Bashir. Sudan - and indeed, the world - is waiting. Some are waiting curiously, some eagerly, some angrily, and some hopefully. Most hope that an arrest warrant would improve the situation on the ground in Darfur, but there are also fears that such a move could exacerbate the violence. Overall, the situation is uncertain and the future is hazy.

Al-Bashir is accused of genocide aiming to wipe out certain tribes in Darfur, a sad story most of us know all too well by this point due to incredible media attention. Private militias allegedly funded by the government killed 35,000 people; up to 300,000 have died from the conflict so far, according to the UN.

However, although most agree that justice is necessary and a culture of impunity is never a good thing, many are hesitant to trust the ICC as the ultimate solution. The ICC thinks that justice cannot be catered towards the political climate; after all the political situation changes daily, but justice must be rendered absolutely and indiscriminately. But in the recent movement towards “globalization of justice” - as everything else in our world is being globalized - is it a huge flaw of the ICC to ignore local peace processes and political situations?

“I dream about getting rid of the government, but it should come through internal movement, not from the ICC,” human rights activist Azhari Alhaj said. “Having the ICC come in at this sensitive time could have a negative impact, because we are going to be seen as working for the ICC. We are the ones who are going to suffer, and no one in the international community is going to protect us.”– LATimes

The ICC warrant could potentially destabilize the country further, by causing the collapse of the government or a return to civil war. The warrant could anger the ruling regime and cause them to become even more isolationist and unwilling to cooperate in peace talks and agreements.

On the flip side, the regime could also become more cooperative and less antagonistic. But regarding recent developments, this just doesn’t seem as likely. Already, Bashir is receiving the backing of other African leaders - the African Union asked the UN Security Council to halt the ICC’s proceedings, and the Group of 77 endorsed Sudan’s chairmanship despite the alleged charges against Bashir. African leaders are coming to Bashir’s side despite his involvement in genocide, and argue that the court’s actions will impede peace in Darfur. At the same time, Al-Bashir himself is trying to mobilize the Sudanese people in his favor - by stirring up anti-Western and populist sentiment. He tells his people that Sudan is being targeted by the West for its support to Palestine, Lebanon and Afghanistan and identifies himself with the Islamic movement. Huge propagandist posters have appeared on the streets of Khartoum to urge the people to rally behind their “virtuous” president against the “evil” ICC. The Sudanese government itself has stated that it doesn’t recognize the ICC’s jurisdiction and will ignore any arrest warrant.

Now does this look like a man ready to give up? I didn’t think so.

So is the ICC the right mechanism through which justice should be administered, especially during times of conflict? Does it increase conflict and violence, or can it actually help the cause of peace? Only time will tell, and soon we’ll see the results - for better or for worse - of the ICC’s latest experiment. If it works and helps foster peace, the ICC will be touted as the next great invention in international criminal justice, and it’s potential will be viewed as immense, endless.

If it fails and violence exacerbates in Darfur, the world will continue to debate about justice and peace - and the Court’s existence will only continue to become more controversial.