Indict Rwanda’s Tyrant Kagame! Cancel His Evil Agenda in Congo! HRW Report on Kampala Conference

From Government Grants for All
One of the most vital issues for all Africans, and in general people allover the world, is the impunity of tyrants and their subordinates, the various dictatorial administrations. The forthcoming Kampala Conference (May 31 to June 11) consists in an extraordinary event whereby representatives of the countries – members of the International Criminal Court (ICC), along with court officials, representatives of non-states parties, the United Nations, and other intergovernmental and regional organizations, and civil society activists from every region of the world will deploy an effort to erase impunity from our world and to underscore the great imporatnce of bringing to justice those responsible for the worst violations of international criminal law.
The Kampala Conference can be the beginning of a new era in East Africa whereby impunity is the reason for which the Khartoum butcher Al Bashir, the Abyssinian gangster Zenawi, the Ugandan Genocide perpetrators, the Hargeisa Mafia lord Rayaale, and many other criminals still play an important political and military role to the detriment of the Civil and Human Rights of hundreds of millions of oppressed Africans.
Human Rights Watch (HRW) has just published a lengthy and comprehensive Report, involving in-depth analysis and extensive recommendations. This Report can also be a tool in the hands of leaders of oppressed nations, fighters of liberation fronts, Human Rights activists and every member of a tyrannized and terrorized nation or ethno-religious group, because it clarifies every point for which a tyrannical administration, like the racist Amhara – Tigray Ethiopianists, can be held responsible, accountable and impeachable.
In four earlier articles that have been published under the titles “Impunity for African Tyrannies to End with Forthcoming Kampala Conference” (http://www.americanchronicle.com/articles/view/156538), “Sudan’s Butcher Al Bashir Must Be Brought to Justice. HRW Report on Kampala Conference” (http://www.americanchronicle.com/articles/view/156593), “Arrest Africa’s Most Evil Freemason, Kenya’s Thug-in Chief Kibaki. HRW Report on Kampala Conference” (http://www.americanchronicle.com/articles/view/156604), and “Paranoid Gangster Museveni of Uganda to Face Charges for Genocide. HRW Report on Kampala Conference” (http://www.americanchronicle.com/articles/view/156605), I republished the HRW Report’s Summary, Recommendations, and the chapters on Cooperation, Complementarity, and the Impact of the Rome Statute System on Victims and Affected Communities. In the present article, I republish the Report’s chapter on Peace and Justice, along with the Introduction and the Contents. With the forthcoming article, I will complete the republication of the enlightening HRW Report.
Making Kampala Count – Advancing the Global Fight against Impunity at the ICC Review Conference
May 10, 2010
http://www.hrw.org/en/reports/2010/05/10/making-kampala-count-0
This 102-page report assesses progress and recommends steps to strengthen international justice. The report addresses the four themes identified as part of the conference’s “stock-taking exercise”: peace and justice, strengthening national courts, the ICC’s impact on affected communities, and state cooperation.
Contents
http://www.hrw.org/en/node/90282/section/1
Making Kampala Count
Advancing the Global Fight against Impunity at the ICC Review Conference
I. Summary
II. Key Recommendations
Cooperation
Complementarity
Impact of the Rome Statute system on victims and affected communities
Peace and Justice
III. Cooperation
A. Introduction
B. Discussions in Kampala
C. The Assembly of States Parties
1. Strengthening ASP procedures
2. Targeted initiatives on cooperation
D. Judicial cooperation and logistical support
1. Implementing legislation
2. Domestic institutional arrangements
3. Framework agreements
E. Diplomatic and political support
1. Arrest and surrender
2. Integrating the court in the United Nations system
3. Integrating the ICC into the work of regional organizations
4. Addressing new challenges: The backlash against the al-Bashir warrant
IV. Complementarity
A. Introduction
B. Overcoming inability: Bolstering a state’s capacity to try serious international crimes
1. The role of states and intergovernmental organizations
2. The role of the court
C. Reversing unwillingness: Raising the political cost of failing to prosecute ICC crimes
1. The role of states
2. The role of the ICC
V. Impact of the Rome Statute system on victims and affected communities
A. Introduction
B. Assessing impact at Kampala
C. Outreach and field engagement
1. Early and often
2. Two-way communications
3. Creative and engaging communications
4. Mass media
5. Field offices and input from field staff
6. In situ proceedings
7. Opportunities for impact presented by the Review Conference
D. Prosecutorial strategy
1. Sequencing
2. Selection of cases
E. Broadening the ICC’s impact: ending impunity and preventing future crimes
1. Deterrence
2. National Prosecutions
VI. Peace and Justice
A. Introduction
B. The importance of justice in securing peace
1. Afghanistan
2. Democratic Republic of the Congo
3. Sowing seeds for future violence
C. Managing the challenges of integrating justice efforts and peace processes
1. Charles Taylor
2. Radovan Karadzic
3. The Lord’s Resistance Army
4. Including accountability in peace negotiations
D. Truth-telling and reconciliation processes as a complement to criminal justice
E. Safeguarding the interests of victims
VII. The Crime of Aggression
A. Introduction
B. Concerns regarding the crime of aggression
1. The debate over jurisdictional filters: Consequences for the ICC’s independence
2. Potential negative consequences of adopting the crime of aggression
C. Discussions at Kampala
Acknowledgments
VI. Peace and Justice
http://www.hrw.org/en/node/90282/section/7
A. Introduction
The adoption of the Rome Statute, and its speedy entry into force, mark a high point in the battle against impunity. Abusive leaders, whose crimes would have gone unaddressed a mere 20 years ago, now must consider the possibility that they may one day have to answer for their crimes.
But the threat of prosecutions is not without its complications. Because the ICC can, and does, issue arrest warrants while conflicts are ongoing, it has already created considerable controversy over whether the prospect of prosecution stands in the way of peace. Negotiators and diplomats, under pressure to end a conflict, sometimes view the ICC as an insurmountable obstacle to their work.
They fear that the prospect of arrest will cause abusive leaders to cling to power more tenaciously and thus prolong the conflict. The ICC’s mandate to investigate and prosecute war crimes, crimes against humanity, and genocide in the course of ongoing conflicts means that this controversy is likely to arise more often in the future. Already the call to suspend or “sequence” justice in exchange for a possible end to a conflict has arisen in conjunction with the court’s work in a number of country situations. For this reason, managing tensions that may arise in the context of negotiations is an area that can benefit from closer examination of past experience.
The important question of pursuing justice for grave international crimes and its interface with peace negotiations is the fourth stocktaking topic. While the topic does not lend itself to a resolution or pledges in Kampala, greater clarity on this subject is nonetheless crucial for the future of the court’s work.
In preparations for this topic and interventions in Kampala, we urge states parties to consider the relationship between peace and justice with a view toward affirming the integral relationship between peace and justice. It is important to highlight the importance of justice as an objective in its own right and not a tool toward other ends. In addition, the review conference is an opportunity to take note of some of the misperceptions about the relationship between the two important objectives discussed above and reflect on country experience to date pursuing these two objectives simultaneously to end conflicts where horrific crimes have been committed. Finally, we urge states parties to affirm that forgoing accountability often does not result in the hoped-for benefits, while remaining firm on justice can yield short- and long-term benefits for peace.
In terms of concrete outcomes for this topic, our expectation is that serious, substantive consideration of the relationship between peace and justice will be reflected in a summation of the session, and that states parties will move beyond stale conventional wisdom and achieve a better understanding of the relationship between these objectives.
B. The importance of justice in securing peace
There is ample experience to demonstrate that failing to address serious human rights crimes can lead to unforeseen negative results. Explicit amnesties that grant immunity for war crimes, crimes against humanity, or genocide, may effectively sanction the commission of grave crimes without providing the desired objective of peace. All too often a peace that is conditioned on impunity for serious crimes is not sustainable. [186] Even worse, it can set a precedent of impunity for atrocities that encourages further abuses. Tolerance of impunity can in the longer term also contribute to renewed cycles of violence both by implicitly permitting unlawful acts and by creating an atmosphere of distrust and revenge that may be manipulated by leaders seeking to foment violence for their own political ends. If the objective is more than a brief break in hostilities, then leaving the past in the past is not an option.
In recognition of experience demonstrating that general amnesties covering war crimes, crimes against humanity, and genocide are neither effective nor consistent with efforts to end impunity, the UN Secretary-General issued guidelines prohibiting appointed envoys from associating themselves with agreements that provide amnesties for these crimes. Blanket amnesties are no longer as common as they once were. A recent study by the Humanitarian Dialogue Center shows that general amnesties that cover war crimes, crimes against humanity, and genocide have been used less frequently since 2000 than in previous years.[187]
Yet indications that blanket amnesties may be declining is no reason to rest easy. Implicit, or de facto amnesties, can have equally destructive consequences. In Sudan, longstanding impunity for the state’s use of brutal ethnic militias to attack civilians in the south set a precedent that suggested that there would be no price to pay for similar atrocities elsewhere. This factored into Khartoum’s decision to use the same strategy again with devastating results for civilians in Darfur. The peace agreement that ended the north-south civil war did not include provisions for accountability because negotiators were concerned that raising the issue would disrupt the talks.
De facto amnesties may also take the form of incorporating alleged rights abusers into the government. Negotiators have sometimes opted to include human rights abusers in a coalition government or a unified military in the hope of neutralizing them or enhancing stability. But including alleged perpetrators in government has not proved to be the panacea that it was hoped to be. While efforts to bring human rights abusers to justice undoubtedly present challenges, making deals with criminal suspects in order to achieve peace can have far-reaching negative consequences. Rewarding alleged war criminals with government positions might encourage others to engage in criminal activity with the expectation of receiving similar treatment. It may also erode public confidence in the new order by sending a message to the population about the acceptance of such abuses and by further entrenching impunity.
1. Afghanistan
After the fall of the Taliban in November 2001, the United Nations brought together leaders of Afghan ethnic groups in Germany to create a road map for representative government in Afghanistan.[188] The resulting Bonn Agreement called for creation of a loya jirga (grand council), which was convened in June 2002, to choose an interim government.[189]
The loya jirga’s selection process explicitly called for the exclusion of delegates who had engaged in human rights abuses, war crimes, looting of public property, or the drug trade.[190]However, the Special Independent Commission for the Convening of the Loya Jirga was unable to monitor and enforce this prohibition. Nor was it made a priority: the warlords’ cooperation was seen by the UN facilitator Lakhdar Brahimi as crucial to the success of the loya jirga, so there was little willingness to confront the issue of their past records.[191] The EU special envoy to Afghanistan, Francesc Vendrell, described the sentiment at the time: “In early 2002, the Americans were relying on the warlords and commanders to pursue the War on Terror. There was a lot of emphasis on stability and therefore justice had to wait. These unsavoury characters were seen as providing stability.”[192]
In 2005-06 Human Rights Watch documented that many leaders implicated in egregious human rights abuses in the 1990s became Afghan ministry officials or presidential advisors, or controlled puppet subordinates who held official positions.[193] They include several of the worst perpetrators from Afghanistan’s recent past, such as Abdul Rabb al Rasul Sayyaf, Mohammed Fahim, Burhanuddin Rabbani, Gen. Abdul Rashid Dostum, and Karim Khalili, who despite having records of war crimes and serious abuses during Afghanistan’s civil war in the 1990s have been allowed to hold and exploit positions of power.[194] Mohammed Fahim, whose troops were implicated in abuses such as rape and summary executions in 1993, is now serving as first vice president of Afghanistan.
Abusive actions by local strongmen and their forces have undermined the government’s legitimacy and caused widespread fear and cynicism among Afghans.[195] As Afghan human rights activist Nader Nadery said, “The militia leaders became part of the structure and began using their powers again. They made institutions unprofessional, unqualified and corrupt. There’s a culture of impunity. Everyone thinks they’re immune from prosecution, so they do whatever they want.”[196]As a result, by 2006 the Taliban and other insurgent groups in Afghanistan had gained increased public support. A December 2008 International Crisis Group report on policing in Afghanistan concluded that the lack of rule of law lies at the heart of much popular disillusionment and that the weakness of law enforcement has contributed to the appeal of insurgents in Afghanistan.[197]The ongoing lawlessness helps the Taliban portray its rule in the 1990s as one of relative law and order.[198]The Taliban is able to use the presence of warlords in the government and the poor perceptions of police to discredit President Karzai’s administration and its domestic backers.
Incorporating warlords into the government also minimizes chances that Afghans will ever see accountability for the crimes they have suffered, despite the fact that large majorities favor prosecutions.[199]The parliament recently enacted a general amnesty which states that all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 “shall enjoy all their legal rights and shall not be prosecuted.” [200] Though victims and their families are entitled to bring civil or criminal claims, doing so is dangerous and not likely to be a viable path to justice. The amnesty law is further demonstration of the entrenchment of the culture of impunity in Afghanistan that resulted from choosing not to address crimes from its past.
2. Democratic Republic of the Congo
A pervasive culture of impunity has also been one of the greatest obstacles to sustainable peace in the Democratic Republic of Congo. In an effort to buy compliance with the transition process, the government gave posts of national or local responsibility, including in the army and police, to dozens of people suspected of committing international human rights violations.[201]One result of this policy is to create incentives for armed groups to engage in violence in the hope of being rewarded with government or army positions in exchange for laying down their arms. In addition, the decision not to hold perpetrators to account for their crimes has in some cases left them free to continue to wreak havoc in the region. The consistent failure to hold perpetrators to account has created an environment in which former rebels who have been incorporated into the armed forces continue to murder, torture, and rape civilians.[202]A number of other key factors have contributed to the brutal violence in eastern Congo, including competition for control over natural resources, land rights, and ethnic cohabitations, but incorporating warlords into the armed forces in an effort to obtain peace has only worsened the situation.
The 2002 agreement forged in Sun City to establish a transitional government for the DRC excluded the possibility of amnesties for war crimes, crimes against humanity, and genocide. However, individuals with a known record of human rights abuses were integrated into the government and the army, with officials making no serious effort to investigate or prosecute them.[203] Known rights abusers were promoted or granted important posts with few diplomats condemning the promotions.[204]The promotions, the lack of justice, and the failure to launch a credible truth and reconciliation commission (also established by the Sun City accords), sent a clear signal early on that the new government was unwilling or unable to end the culture of impunity.
The signal was a dangerous one as peace remained elusive. Continued violence, with devastating results for civilians, was perceived by armed groups as the best way to strengthen their negotiating position or secure a seat at the table. As one commander told Human Rights Watch in 2003, “Our government only listens to guns and violence and we need to make them hear us.”[205]
The negative consequences of rewarding warlords responsible for serious human rights abuses was most evident in Ituri, often described as the bloodiest corner of Congo, where tens of thousands were brutally slaughtered on an ethnic basis between 1999 and 2009.[206] The transitional government lacked effective control of the area and six armed groups (backed at different times by Uganda, Rwanda, and the Congolese government) vied for control of the region.[207]
In August 2003 President Joseph Kabila called the leaders of the armed groups to Kinshasa to discuss establishing order in Ituri. On December 11, 2004, despite mounting evidence of their abuses, Kabila signed a decree granting five leaders of the Ituri armed groups positions as generals in the newly integrated Congolese army and a further 32 militiamen positions as lieutenant-colonels, colonels, and majors. The generals were welcomed into army ranks in January 2005.[208] The Congolese authorities contended that integrating commanders with abusive records was a way of removing them from Ituri, thus making it easier to end the fighting there.[209]But by doing so the government reinforced the message that brutalities would not only go unpunished, but might be rewarded with a government post. The message was clear: violence brings rewards.[210]
Within six months of the appointments, new armed groups were formed in Ituri all claiming, as others had done before, that they represented marginalized communities and demanding high ranks in the army. The failure to adequately disarm combatants and to provide peace dividends for local communities contributed to the emergence of the new armed groups, but so did the perception that violence was an effective route to power. These groups continued the terror tactics that previous armed groups had used so successfully: killing civilians, raping women and girls, and arbitrarily arresting and torturing those who opposed them.
In August 2006, Congolese government officials, supported by the UN, once again held peace discussions with the Ituri armed groups. Two months later, in November 2006, the groups signed a new peace agreement.[211]Their leaders were all granted the rank of colonel in the Congolese army. Dozens of others were appointed as lieutenant-colonels and majors. One of the newly appointed officers later remarked to Human Rights Watch, “Maybe if we had killed more people, I would have become a general.”[212] A similar pattern has emerged in Katanga province.
The Congolese government has yet to demonstrate that it has learned from its failed policy of placating rights abusers. In August 2006, the International Criminal Court issued an arrest warrant against UPC leader Bosco Ntaganda for the war crime of enlisting and conscripting children under the age of 15 and using them in hostilities between 2002 and 2003 in Ituri.[213] The Congolese government, which requested the ICC to investigate crimes in Congo, and which to date has been cooperative with the court, in this case failed dramatically in its legal obligation to arrest Ntaganda. In a televised press conference on January 31, 2009, President Kabila invoked the peace versus justice dilemma, stating that he faced a difficult choice between justice and peace, stability, and security in eastern Congo. He said his choice was to prioritize peace. Congolese authorities attempted to legitimize Ntaganda as a “partner for peace,” reinforcing the perception that those who commit heinous crimes against civilians in Congo will be rewarded rather that punished.[214] Dozens of local human rights organizations condemned the decision. Ntaganda has since served as a high-ranking advisor in the army that has the full backing of UN peacekeeping forces in Congo, despite his status as a wanted man at the ICC.[215]
3. Sowing seeds for future violence
Absence of accountability in fair and impartial trials for those most responsible for crimes leaves the desire for retribution through legitimate channels unsatisfied. Without individualizing guilt, the notion of collective responsibility for crimes has greater resonance and it is easier for blame focused on a group to be passed from one generation to the next.
A well-known example of this is Yugoslavia. Assumptions of collective ethnic guilt rooted in atrocities dating back to the Second World War were important in enabling ultra-nationalist politicians in the 1990s to divide communities in Bosnia, Croatia, and Serbia and help sow the seeds for intercommunal violence. Over 40 years after the end of the Second World War, the lack of accountability for atrocities laid the groundwork for propaganda seeking to instill in Serbs a fear of genocide. Influential academics at the Serbian Academy of Arts and Sciences in 1986 tapped into deeply held sentiments when they proclaimed that except during the Ustasha (Croatian pro-Nazi) period during the Second World War, “Serbs in Croatia have never been as endangered as they are today.”[216] Serbian media gave increasing prominence to this alleged threat facing Serbs in Yugoslavia in the late 1980s and early 1990s.
The ICTY noted that following Slovenia’s and Croatia’s declarations of independence, “[p]ro-Serb propaganda became increasingly visible … The Serb media propagandised the idea that the Serbs had to arm themselves in order to avoid a situation similar to that which happened during World War II when the Serbs were massacred. Terms like ‘Ustasa’, ‘Mujahideen’ and ‘Green Berets’ were used widely in the press as synonyms for the non-Serb population.”[217] The failure to establish individual accountability and address the past in Yugoslavia during Tito’s iron-fisted reign created suppressed resentments that were later tapped by ambitious politicians for their own political and nationalistic ends. In other places as well, including Kenya and Burundi, previous unaddressed episodes of violence have been used to foment new cycles of violence. [218]
These are some of the reasons why justice is important for securing peace.
C. Managing the challenges of integrating justice efforts and peace processes
In the short term, it is easy to understand the temptation to forego justice in an effort to end a war. Peace negotiations may be carried out almost literally at gunpoint, with war-weary participants desperate to end the conflict at any price.
However experience has shown that efforts at justice, so often just assumed to be antagonistic to peace negotiations, do not categorically have the predicted dampening or damaging effect on peace talks.
For example, on May 27, 1999, the ICTY announced its most significant indictment: that of Yugoslav President Slobodan Milosevic and four other top officials for “murder, persecution, and deportation in Kosovo” from January 1 through May 1999.[219] The indictment was announced in the midst of the armed conflict between Serbia and NATO forces over Kosovo. The conventional wisdom at the time was that the indictment would make the situation in Kosovo worse and would likely undercut the prospect of any compromise by Milosevic.
The Russian Foreign Ministry said the war crimes indictment “will add to the obstacles to a Yugoslav settlement” and “severely undermine” the authority of the negotiators. Russia’s envoy to the Balkans, Viktor S. Chernomyrdin, denounced the warrant as a “political show” and “incomprehensible and unpleasant.”[220]
Yet less than a week later, on June 3, negotiators announced that Milosevic had accepted the terms of an international peace plan for Kosovo.[221] Despite their strong opposition at the time, when asked about the indictment and its effect on the talks, the Russian and Finnish intermediaries later admitted that the indictment did not affect negotiations and was never on the agenda.[222]Because Milosevic did not travel much and felt secure at home, he did not fear ending up in The Hague.[223]
The ICC prosecutor’s request for an arrest warrant against Sudan’s President al-Bashir in July 2008 similarly triggered a backlash by numerous actors, including the African Union and the Organization of the Islamic Conference, which asked the UN Security Council to defer the ICC’s work in Darfur for 12 months out of concern about the possible impact of the ICC’s work on “efforts aimed at promoting lasting peace.”[224] Many were also understandably concerned about the potential impact on UNAMID, the AU/UN hybrid peacekeeping mission in Darfur. Shortly after the prosecutor’s request for a warrant was made, one of Bashir’s top advisors threatened various reprisals including expulsion of UNAMID, stating: “Send them out because the U.N. has declared us Public Enemy No. 1, why shouldn’t we?”[225]Sudan experts Alex de Waal and Julie Flint publicly criticized the ICC prosecutor for pressing charges against high officials in the government of Sudan, stating, “Attempts to deploy UNAMID [the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At this sensitive time, to lay charges against senior government officials, and to criminalise the entire government, will derail attempts to pull Sudan from the brink.”[226] They argued that justice should wait until after those culpable are no longer in positions of authority.[227]
Following the issuance of arrest warrants, the Sudanese government expelled 13 international aid agencies, putting further at risk millions vulnerable to malnutrition and disease. However, the other anticipated devastating consequences flowing from the warrant have not occurred.[228]Peace talks, which had not been robust before the prosecutor’s announcement, continued after the prosecutor’s announcement and after the arrest warrant had been issued. On November 12, 2008, al-Bashir announced an immediate unilateral ceasefire and the government of Sudan and the rebel movements pledged to work on a framework agreement for peace talks.[229] In February and May 2009, the government of Sudan and representatives of the Justice and Equality Movement (JEM) met in Qatar for peace talks and on February 23, 2010, agreed to a framework for peace discussions, which committed the two parties to an immediate ceasefire, the release of prisoners, and the negotiation of a final peace agreement.[230]
The warrants also did not slow the government of Sudan’s cooperation with deployment of peacekeepers. Indeed, UNAMID deployment rose significantly following the prosecutor’s announcement. Between July 31, 2008, and January 21, 2010, deployment of UNAMID’s military, civilian, and police personnel rose from 12,341[231] to 24,223.[232] Over 3,000 UNAMID personnel were deployed in the first few months after the prosecutor’s announcement.[233] Also in the months following the prosecutor’s announcement, the government of Sudan agreed to provide blanket clearance for airlift operations and to remove other administrative hurdles to UNAMID.[234]
The Kosovo and Darfur experiences suggest at a minimum that indictments need not upend peace talks.
In other instances, justice may even have helpful side benefits. Justice is an important end in and of itself, and is not an instrument to bring about political marginalization. But arrest warrants sought as a means of bringing to justice leaders responsible for serious international crimes have also at times had the effect of marginalizing those leaders in ways that may benefit peace processes. This was true with Liberian President Charles Taylor and Bosnian Serb leader Radovan Karadzic. The ICC warrants for LRA leaders may have also contributed to the group’s at least temporary marginalization from its base of support in Sudan, pushing it towards more serious peace negotiations in Juba in 2006.
1. Charles Taylor
On June 4, 2003, the prosecutor of the Special Court for Sierra Leone “unsealed” an indictment against Charles Taylor as one of those “bearing the greatest responsibility” for war crimes, crimes against humanity, and other serious violations of international humanitarian law committed in Sierra Leone.[235]The unsealing of the indictment against Taylor caused a great deal of consternation at the United Nations Secretariat and elsewhere.[236]The cause of concern was triggered in part by the timing of the announcement, as it coincided with the opening day of Liberian peace talks convened in Accra, Ghana.[237] Peace, which had mostly been elusive in Liberia since 1989,[238] was a priority, and many felt that the indictment would undermine chances at reaching a negotiated settlement.[239]The African presidents who were meeting in Accra to work on the peace process felt ambushed by the news and betrayed, as they had not been informed of the indictment earlier.[240] Ghanaian Foreign Minister Nana Akufo-Addo expressed his embarrassment and stated a belief held by many that the prosecutor’s action “in unsealing the indictment at this particular moment has not been helpful to the peace process.”[241]
In retrospect, however, it is clear that the unsealing of Taylor’s indictment was a key factor in bringing peace to Liberia. The International Center for Transitional Justice’s study of the 2003 peace negotiations concluded that the reason the 2003 agreement ultimately succeeded while over a dozen previous agreements had failed was because Taylor offered to vacate the presidency and not take part in transitional elections. That offer resulted directly from his indictment by the Special Court.[242]The report noted almost universal agreement among those present at the talks—even those who had been skeptical at the time—that the unsealing of the indictment had a largely positive effect.[243] Furthermore, the expected retaliatory violence in Liberia resulting from the indictment never occurred. Although other important factors worked with the indictment to bring about peace in Liberia—including the impending rebel offensive threatening the capital, the involvement of the international community, and blocking by the peacekeeping force the Economic Community of West African States Monitoring Group (ECOMOG) of arms’ delivery to Taylor—the Taylor case shows that an indictment may inadvertently strengthen peace processes and that the feared consequences resulting from indicting a sitting head of state do not always come to pass.
2. Radovan Karadzic
Similarly, the indictment of Radovan Karadzic facilitated peace talks to end the war in Bosnia and Herzegovina. Negotiations to end that conflict opened near Dayton, Ohio, in early November 1995, less than four months after the worst atrocity in Europe since the Second World War: the massacre of over 7,000 men and boys following the fall of the Bosnian Muslim enclave of Srebrenica on July 11, 1995. On July 24, 1995, less than two weeks after the fall of Srebrenica and in the midst of the conflict, the International Criminal Tribunal for the former Yugoslavia confirmed indictments against Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. The charges included genocide, crimes against humanity, and war crimes for crimes alleged to have occurred between 1992 and 1995 in several locations across Bosnia, including Sarajevo. A second indictment against Karadzic and Mladic was confirmed on November 16, 1995, during the Dayton peace negotiations. It charged both men with genocide, crimes against humanity, and war crimes based on the mass execution of civilians after the fall of Srebrenica.
At the time negotiations in Dayton began, a number of politicians and political commentators suggested that the ICTY’s work was getting in the way of peace.[244] Indeed, the former ICTY chief prosecutor Richard Goldstone said that after he indicted Karadzic and Mladic, the UN secretary-general was furious, castigating the prosecutor in a meeting shortly afterwards and asking why he had not been consulted.[245]
However, the indictment of Karadzic ultimately aided the Dayton peace accord.
If Karadzic, the Bosnian Serbs’ political leader, had not been indicted, he would have likely attended the peace conference. Because those meetings began only two months after the massacre at Srebrenica, Bosnian Muslim and Croat leaders would not have entered the same room or sat at the same table with Karadzic.[246]A US State Department official said the tribunal “accidentally served a political purpose: it isolated Karadzic and left us with Slobo [Slobodan Milosevic].”[247] In his memoirs, the US negotiator Richard Holbrooke said he made it very clear to Milosevic that Mladic and Karadzic could not participate in a peace conference. When Milosevic said the attendance of the indicted men was necessary for peace, Holbrooke offered to arrest them personally if they set foot in the United States.[248]
Thus the ICTY’s indictments, rather than being an obstacle to peace negotiations, helped move them forward.
3. The Lord’s Resistance Army
In Uganda as well, community leaders and commentators feared the involvement of the ICC would end all hope for peace talks with the Lord’s Resistance Army which had been terrorizing civilians in northern Uganda since 1986. Acholi leaders said that the issuing of “international arrest warrants would practically close once and for all the path to peaceful negotiation as a means to end this long war, crushing whatever little progress has been made during these years.”[249] The Roman Catholic Archbishop in northern Uganda saw the ICC’s decision to issue indictments against the LRA leadership as “the last nail in the coffin” for efforts to achieve dialogue.”[250]
Yet less than a year after the warrants were unsealed, in mid-2006, the LRA sat down at the negotiating table in Juba for the most serious peace talks they had had to date. Many believe that the ICC warrants were one of the factors that pushed the LRA to the table in part by isolating them from their base of support, the government of Sudan. Not long after the ICC referral was announced, Sudan agreed to a protocol allowing Ugandan armed forces to attack LRA camps in Southern Sudan. In October 2005 the government of Sudan signed a memorandum of understanding with the court agreeing to cooperate with the arrest warrants issued against LRA commanders. Because Sudan severed many of its ties with the LRA, it forced them into “survival mode,” at least temporarily.[251] A local leader noted that a number of LRA combatants defected following the change in attitude by the government of Sudan.[252]
The increased attention to the conflict resulting from the ICC’s involvement also galvanized international engagement in the peace processes for what has been described as “the biggest forgotten, neglected humanitarian emergency in the world today.”[253]This support was crucial in moving the peace process forward.
Finally agreements made as part of the peace process may yet help encourage national accountability efforts through the Uganda High Court Special Division agreed at Juba.
Firm conclusions about the impact of the ICC’s arrest warrants on peace prospects for northern Uganda are difficult to draw, not least because the conflict remains unresolved and civilians remain at risk. However, there are reasons to believe that the ICC’s involvement was not the reason why the final peace agreement was not signed. LRA leaders have never made clear their reasons for refusing to sign the final peace agreement; meanwhile, interim agreements which included justice provisions were successfully concluded over the course of two years of negotiations. The justice provisions called for national proceedings, which if seen as genuine by the ICC’s pre-trial chamber, would have rendered the pending ICC cases inadmissible. Thus the ICC had been taken out of the equation, though fear of national prosecutions may have remained an obstacle. Meanwhile, the resumption of LRA attacks on civilians and the failure of the LRA to implement commitments to assemble their forces in specified locations while the talks were ongoing reinforced concerns about the sincerity of the LRA’s commitment to conclude peace under any circumstances, despite the robustness of the negotiations.[254] In any event, ICC involvement did not preclude a dialogue with the LRA as many had feared, rather it may have been helpful in some unexpected ways.
4. Including accountability in peace negotiations
This is not to say there is not tension between peace and justice in negotiations. The challenge is to learn from experience where this tension has been handled well. The negotiations to end the conflict in Bosnia andHerzegovina are worth examining more closely for this reason.
The 1996 Dayton Peace Accords is an example of an agreement in which the tension between peace and justice was successfully managed. Despite rumors of amnesties, the Dayton peace talks did not undermine justice. Nor did they include provisions for the immediate arrest of ICTY suspects as Bosnian Muslim leaders had hoped. As one senior US official put it, “The war crimes tribunal isn’t going to mess with our peace talks; we’re not going to mess with the war crimes tribunal.”[255] A negotiator at Dayton pointed out that “the Dayton Framework Agreement, in its Bosnian constitution, implicitly commended the work of the Tribunal by stipulating that ‘no person who is serving a sentence imposed by the ICTY and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear may stand as a candidate or hold any appointed, elective or other public office in the territory of Bosnia and Herzegovina.’”[256] This provision helped speed Karadzic’s removal from his position in July 1996. The ICTY’s activities also did not affect Milosevic’s role in negotiating the agreement: he accepted the Dayton Peace Accord ending the Bosnian conflict without obtaining an amnesty, even though he too was an obvious ICTY target.[257]He (and Karadzic, who signed the agreement) agreed to the above-mentioned clause despite some early misgivings.[258]
The Dayton peace agreement is just one example of an accord that managed to end a conflict and include provisions relating to accountability. Numerous other agreements, including those for Burundi and Liberia, have also contained explicit provisions for accountability or truth and reconciliation measures. These are worth studying for lessons to be applied in future negotiations.
D. Truth-telling and reconciliation processes as a complement to criminal justice
Criminal proceedings, of course, are not the only tool that can assist in addressing the needs of victims. As important as they are, trials only address a small subset of crimes. Broader truth-telling mechanisms, in addition to reparations, vetting of “bad actors” from positions in government and security forces, economic development, and reconstruction are needed as part of the larger toolbox to move society forward in a way that respects human rights.
Victims and their families have a right to know the truth about violations they suffered. The UN General Assembly has endorsed the principle that victims’ right to remedies includes having access to relevant information concerning human rights violations. [259] International principles adopted by the former UN Commission on Human Rights state that “irrespective of any legal proceedings, victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place.” [260] International human rights bodies have emphasized the state’s obligation to provide information to victims, particularly in cases of enforced disappearance.
The UN Human Rights Committee has held that the extreme anguish inflicted upon relatives of the “disappeared” makes them direct victims of the violation as well. [261]
In addition to informing the victims and their families, the state has an obligation to inform society in general about human rights abuses, particularly when the violations are serious. [262] Only by exposing crimes and those responsible can they be avoided in the future. Nor does truth-telling undermine existing judicial mechanisms. Rather they reinforce them both by baring evidence necessary for prosecutions, but also by helping societies understand and address the failings of the judicial institutions that allowed crimes to go unpunished. For these reasons, Human Rights Watch believes truth-telling processes can and should be an important complement to criminal justice mechanisms, whether international or domestic.
E. Safeguarding the interests of victims
Victims of any conflict have a wide range of interests and needs. These may vary over time. While some demand justice immediately, others would prefer to bury the past. Issues such as security and return home for those who have been displaced may be a priority, and justice may be viewed as an obstacle to these other immediate needs. Victims’ interests may change after they return home and find their believed abusers living in their communities not having faced any consequences for their alleged crimes. Other factors may also come into play and add to the complexities involved in determining what victims’ interests are and how to accommodate their diverse needs.
While consulting victims is an essential part of reconstructing society and determining the appropriate steps to be taken to move forward, international legal obligations place some constraints on what the options are. International law mandates prosecutions for serious crimes, such as crimes against humanity, genocide, and war crimes, which help to ensure individual victims’ rights to truth, justice, and an effective remedy, along with combating impunity. Major international treaties, including the Geneva Conventions, and the Convention on the Prevention and Punishment of the Crime of Genocide, place an obligation on states parties to take steps to provide effective penalties for those responsible for certain crimes.
But it is not only international legal obligations that make justice necessary. Apart from the potential contributions justice can make to peace described above, prosecutions send the message to perpetrators and would-be perpetrators that no one is above the law. They also help to consolidate respect for the rule of law by solidifying society’s confidence in judicial institutions. This in turn helps cement peace and stability. As former UN Secretary-General Kofi Annan said, “Impunity… can be an even more dangerous recipe for sliding back into conflict.”[263] Ensuring that justice is done for the most serious crimes is an important way of safeguarding the interests of victims.
Notes
[186] Sierra Leone is one example of the failed broad amnesty policies of the past. Three blanket amnesty provisions in different accords failed to consolidate the hoped-for peace during its 11-year civil war. Rather than solidify peace, successive amnesties had the opposite effect. Inclusion of a general amnesty in the initial peace agreement created the expectation that other agreements would contain the same provision, thus further emboldening potential rights abusers. War and war crimes resumed within a short period after each peace agreement had been reached. As the conflict went on, Human Rights Watch observed an increased number of serious abuses (including rape, systematic extortion, looting of villages and torture and summary execution of suspected rebels) by the Civil Defense Forces, a pro-government militia. In the final 1999 Lome accord, rebel leaders associated with horrific atrocities were even rewarded with high-level government positions. The pardons, and ultimately the high government position for rebel leader Foday Sankoh, showed that combatants would pay no price—and, indeed, would even be rewarded—for their horrific crimes. In Angola as well, six successive amnesties failed to end the Angolan civil war. The consistent failure to address violations of international humanitarian law undermined attempts to secure peace. Abuses worsened with each cycle of conflict. See Human Rights Watch,Selling Justice Short, pp. 57-68.
[187] Leslie Vinjamuri and Aaron P. Boesenecker, Accountability and peace agreements: mapping trends from 1980-2006, HD Centre, Geneva, September, 2007, http://www.reliefweb.int/rw/lib.nsf/db900sid/EVOD-77MERJ/$file/Full_Report.pdf?openelement (accessed April 15, 2010), Appendix 1. See also Priscilla Hayner, Negotiating Justice: Guidance for Mediators, Centre for Humanitarian Dialogue and International Center for Transitional Justice, February 2009.
[188] The Taliban is a movement started by religious students (talibs) from the Pashtun areas of eastern and southern Afghanistan who were educated in traditional Islamic schools in Pakistan.
[189] Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions (“Bonn Agreement”), December 5, 2001, http://www.un.org/News/dh/latest/afghan/afghan-agree.htm (accessed April 20, 2010); and Joe Havely, “The loya jirga: A very Afghan gathering,” CNN, June 11, 2002, http://edition.cnn.com/2002/WORLD/asiapcf/central/06/10/afghan.loyajirga/index.html (accessed April 20, 2010). The selection process for the Emergency Loya Jirga which took place in May-June 2002 was conducted in two stages. During the first stage, candidates were elected in their home districts by traditional local shuras, or councils; during the second stage, these candidates attended a regional election where they chose a smaller number of delegates from among themselves to attend the loya jirga in Kabul. See Procedures for the Elections of the Members of the Emergency Loya Jirga, UN Assistance Mission in Afghanistan, http://www.globalpolicy.org/component/content/article/178/33093.html (accessed April 20, 2010), arts. 6-11.
[190] Procedures for the Elections of the Members of the Emergency Loya Jirga, art. 14(4).
[191] See Laura Secor, “The Pragmatist,” The Atlantic, July/August 2004, http://www.theatlantic.com/doc/200407/secor (accessed April 20, 2010).
[192] Debbie Whitmont, “Winter in Afghanistan: Travels Through a Hibernating War,” The Monthly (Melbourne), March 2007, http://www.themonthly.com.au/tm/node/478 (accessed April 20, 2010) (“Winter in Afghanistan”).
[193] Ibid. See also “Afghanistan: Bush, Karzai, Musharraf Must Act Now to Stop Militant Abuses,” Human Rights Watch news release, September 26, 2006, http://www.hrw.org/en/news/2006/09/26/afghanistan-bush-karzai-musharraf-must-act-now-stop-militant-abuses.
[194] “Afghanistan: Bush, Karzai, Musharraf Must Act Now to Stop Militant Abuses,” Human Rights Watch news release, http://www.hrw.org/en/news/2006/09/26/afghanistan-bush-karzai-musharraf-must-act-now-stop-militant-abuses. See also Isabel Hilton, “Now We Pay the Warlords to Tyrannise the Afghan People,” Guardian, July 31, 2003, http://www.guardian.co.uk/politics/2003/jul/31/afghanistan.world (accessed April 20, 2010); Ahmed Rashid, “Afghan Human Rights Abuses: A Chance for Change,” commentary, Eurasianet, August 4, 2005, http://www.unhcr.org/refworld/docid/46f257f9c.html (accessed April 20, 2010); and Nick Meo, “Afghan Warlords Poised to Take Up Power,” Independent, October 14, 2004, http://www.independent.co.uk/news/world/middle-east/afghan-warlords-poised-to-take-up-power-543691.html (accessed April 20, 2010).
[195] Human Rights Watch, Afghanistan on the Eve of Parliamentary Elections, September 2005, http://www.hrw.org/en/reports/2005/09/15/afghanistan-eve-parliamentary-and-provincial-elections, p. 9.
[196] Whitmont, “Winter in Afghanistan.”
[197] See, for example, International Crisis Group (ICG), “Policing in Afghanistan: Still Searching for a Strategy,” December 18, 2008, http://www.ciaonet.org/pbei/icg/0014389/f_0014389_11772.pdf (accessed April 20, 2010) (“there is a general perception in Afghanistan that lawlessness is on the rise”), p. 1.
[198] ICG, “Afghanistan: New U.S. Administration, New Directions,” March 13, 2009, http://www.unhcr.org/refworld/country,,ICG,,AFG,4562d8cf2,49ba4c53ed,0.html (accessed April 20, 2009), pp. 5-6.
[199] Afghan Independent Human Rights Commission, “A Call for Justice: A Report on National Consultations on Transitional Justice in Afghanistan,” January 2005. According to the survey (4,151 Afghan respondents), 94 percent found justice for past crimes to be either “very important” (75.9 percent) or “important” (18.5 percent). In addition, almost half believed that war criminals should be brought to justice “now.”
[200] Resolution of National Assembly on National Reconciliation and General Amnesty to the President, No. 44, dated 16/02/1386, published in the official gazette no. 141712, dated 9/9/1387, art. 3(1).
[201] Human Rights Watch, World Report2005 (New York: Human Rights Watch, 2005), Democratic Republic of Congo chapter, http://www.hrw.org/legacy/wr2k5/wr2005.pdf.
[202] Anita Powell, “Congo ex-rebels accused of rape and killings,” Associated Press, May 18, 2009 (citing reports by UN peacekeeper commanders in the DRC that the former rebels are now committing human rights violations as part of the Congolese Army).
[203] Amnesty Decree-Law [Democratic Republic of Congo], Journal Officiel de la RépubliqueDémocratique du Congo¸ No. 03-001, April 15, 2003, http://www.unhcr.org/refworld/docid/47305aae2.html (accessed April 20, 2010); Amnesty Law [Democratic Republic of Congo], No. 05/023,December 19, 2005, http://www.unhcr.org/refworld/docid/47305d032.html (accessed April 20, 2010). In May 2009 the DRC parliament passed another amnesty law for armed groups in North and South Kivu, providing an amnesty similar to that in the 2005 law but extending it to 2009. The law has not yet been signed by President Joseph Kabila. See “Amnesty law for DR Congo militias,” BBC News Online, May 7, 2009, http://news.bbc.co.uk/2/hi/africa/8037891.stm (accessed April 20, 2010).
[204] Human Rights Watch, Renewed Crisis in North Kivu, vol. 19, no. 17(A), October 2007, http://www.hrw.org/reports/2007/drc1007/drc1007web.pdf, pp. 75-77. These included Gabriel Amisi, who was promoted to the rank of general, and Laurent Nkunda, who were responsible for the brutal suppression of a mutiny in Kisangani where at least 80 people were summarily executed. Human Rights Watch, Democratic Republic of Congo − War Crimes in Kisangani: The Response of Rwandan-backed Rebels to the May 2002 Mutiny, vol. 14, no. 6(G), August 2002, http://www.hrw.org/legacy/reports/2002/drc2/DRC0802.pdf, p. 2. The UN later put the figure at 163. See also “Death Toll in Congo Raid,” New York Times¸ July 17, 2002, http://www.nytimes.com/2002/07/17/world/death-toll-in-congo-raid.html (accessed April 20, 2010).
[205] Human Rights Watch interview with armed group leader (name withheld), Bunia, September 18, 2003.
[206] At this writing, killings continued in Ituri with at least two militia groups continuing to fight the Congolese army. There has been considerably less violence since 2007 than in previous years. See “Top UN official signals improvement, tough challenges in eastern DR Congo,” United Nations News Service, April 9, 2009, http://www.un.org/apps/news/story.asp?NewsID=30442&Cr=democratic&Cr1=congo (accessed April 20, 2010); Médecins Sans Frontières, “DRC: LRA Attacks’ ‘Lasting Effect,’” May 18, 2009, http://www.doctorswithoutborders.org/news/article.cfm?id=3626&cat=voice-from%20the%20field&ref=home-sidebar-right (accessed April 20, 2010).
[207] Human Rights Watch, Ituri: “Covered in Blood”: Ethnically Targeted Violence in Northeastern DR Congo, vol. 15, no. 11(A), July 2003, http://www.hrw.org/sites/default/files/reports/DRC0703.pdf, pp. 14-18; and Human Rights Watch, The Curse of Gold: Democratic Republic of Congo (New York: Human Rights Watch, 2005), http://www.hrw.org/en/node/11733/section/5 and reproduced at http://www.anglogoldashanti.com/NR/rdonlyres/CBB6C75C-EE9C-439E-962F-DDB5C52FB968/0/HRWDRCreport.pdf, pp. 21-22.
[208] New appointees to the rank of general included Jérôme Kakwavu, the commander of the People’s Armed Forces of the Congo (FAPC) responsible for summary executions (including child soldiers who attempted to flee the ranks), the torture of dozens of civilians, and rape of women and girls in Ituri; and Floribert Kisembo Bahemuka, one of the UPC commanders responsible in late 2002 for a campaign of executions and forced disappearances of civilians in Bunia. “D.R. Congo: Army Should Not Appoint War Criminals,” Human Rights Watch news release, January 13, 2005, http://www.hrw.org/en/news/2005/01/13/dr-congo-army-should-not-appoint-war-criminals; Human Rights Watch, The Curse of Gold, http://www.hrw.org/en/node/11733/section/8, or http://www.anglogoldashanti.com/NR/rdonlyres/CBB6C75C-EE9C-439E-962F-DDB5C52FB968/0/HRWDRCreport.pdf, pp. 27-34, 84-94.
[209] See, for example, “DR Congo warlord generals accused,” BBC News Online, January 14, 2005, http://news.bbc.co.uk/2/hi/africa/4174811.stm (accessed April 20, 2010) (quoting Information Minister Henri Mova: “Now we need peace in our country and we decided to appoint them because we can’t condemn them before judgement.”); Human Rights Watch, “Army Should Not Appoint War Criminals.”
[210] The problem seemed to be acknowledged by presidential spokesman Kudura Kasong who stated, “The big dream of all warlords is to be a general, educated or not, and this is a big problem.” “DR Congo warlord generals accused,” BBC News Online,http://news.bbc.co.uk/2/hi/africa/4174811.stm.
[211] Accord Cadre Pour La Paix En Ituri entre le Gouvernement de la République Démocratique du Congo et les Groupes Armes de L’Ituri (MRC, FNI, FRPI), Bunia, Democratic Republic of Congo, November 29, 2006, copy on file with Human Rights Watch.
[212] Human Rights Watch interview with former armed group combatant (name withheld), Bunia, September 8, 2006.
[213] Prosecutor v. Ntaganda, ICC, Case No. ICC-01/04-02/06, Decision to Unseal the Warrant of Arrest Against Bosco Ntaganda, August 22, 2006, http://www2.icc-cpi.int/iccdocs/doc/doc305330.PDF (accessed April 20, 2010).
[214] Prior to the unsealing of his arrest warrant, Ntaganda had already been implicated in brutal human rights abuses, including leading military operations in which hundreds of civilians were slaughtered on an ethnic basis. Human Rights Watch, Covered in Blood, http://www.hrw.org/sites/default/files/reports/DRC0703.pdf,pp. 23-27; Human Rights Watch, The Curse of Gold, http://www.hrw.org/en/node/11733/section/6, or http://www.hrw.org/en/node/11733/section/6, or http://www.anglogoldashanti.com/NR/rdonlyres/CBB6C75C-EE9C-439E-962F-DDB5C52FB968/0/HRWDRCreport.pdf, pp. 23-34.He was nonetheless one of the five Ituri leaders who in December 2004 had been granted positions as generals in the newly integrated Congolese army though he did not take up the post.
[215] “Congo conflict: ‘The Terminator’ lives in luxury while UN peacekeepers look on,” Guardian , February 10, 2010, http://www.guardian.co.uk/world/2010/feb/05/congo-child-soldiers-ntaganda-monuc (accessed May 5, 2010).; “Congo ex-Rebel ‘working with UN,’” BBC News Online, April 29, 2009, http://news.bbc.co.uk/2/hi/africa/8023978.stm (accessed April 20, 2010). The government’s inclusion of abusive leaders in the army has also set the stage for further atrocities by its own forces. Human Rights Watch has documented how since late January 2009 soldiers from the integrated Congolese armed forces have attacked villages, killing at least 19 civilians and raping more than 143 women and girls. See “DR Congo: Hold Army to Account for War Crimes,” Human Rights Watch news release, May 19, 2009, http://www.hrw.org/en/news/2009/05/19/dr-congo-hold-army-account-war-crimes.
[216] Laura Silber and Allan Little, Yugoslavia: Death of a Nation [Rev. Ed.] (New York: Penguin Books, 1997), pp. 31-32.
[217] Prosecutor v. Milomir Stakic, ICTY, Case No. IT-97-24-T, Judgment, July 31, 2003, para. 52.
[218] Human Rights Watch, Selling Justice Short, pp. 77-92.
[219] “President Milosevic and Four Other Senior FRY Officials Indicted for Murder, Persecution and Deportation in Kosovo,” ICTY Press Release, JL/PIU/403-E, May 27, 1999, http://www.icty.org/sid/7765 (accessed April 19, 2010).
[220] David Hoffman, “Russia Says Peace Talks Sideswiped,” Washington Post, May 28, 1999, http://www.washingtonpost.com/wp-srv/inatl/longterm/balkans/stories/diplomacy052899.htm (accessed April 19, 2010); “Despite Milosevic Indictment Peace Talks Continue,” U.N.Wire, May 28, 1999, http://www.unwire.org/unwire/19990528/2885_story.asp (accessed April 19, 2010). See also Roger Cohen, “Crisis in the Balkans: The Indictment; Tribunal is Said to Cite Milosevic for War Crimes,” New York Times, May 27, 1999, http://www.nytimes.com/1999/05/27/world/crisis-balkans-indictment-tribunal-said-cite-milosevic-for-war-crimes.html (accessed April 19, 2010); Marcus Tanner, “War in the Balkans, Milosevic Charge Splits Allies,” Independent, May 28, 1999, http://www.independent.co.uk/news/war-in-the-balkans-milosevic-charge-splits-allies-1096257.html (accessed April 19, 2010).
[221] “Milosevic Accepts Peace Plan, Finnish envoy says,” CNN.com, June 3, 1999, http://www.cnn.com/WORLD/europe/9906/03/kosovo.peace.04/ (accessed April 19, 2010).
[222] Herbert Okun, “The Role of International Criminal Justice in Peace Negotiations” (contribution to panel discussion “Future of International Criminal Justice – Evolving Accountability from Nuremburg to the International Criminal Court,” October 30, 2006), Penn State International Law Review, vol. 25, 4 (2007), p. 788.
[223] Ibid.
[224] Communique of the 142nd Meeting of the Peace and Security Council, PSC?MIN/Comm(CXLII), July 21, 2008, para. 3.
[225] Sam Dealey, “Sudan: Retaliation Against The Hague?” Time, July 15, 2008, http://www.time.com/time/world/article/0,8599,1822833,00.html (accessed April 20, 2010).
[226] Julie Flint, Alex de Waal, and Sara Pantuliano, “ICC approach risks peacemaking in Darfur,” letter to the editor, Guardian (London), June 10, 2008, http://www.guardian.co.uk/world/2008/jun/10/sudan.unitednations (accessed April 20, 2010).
[227] Julie Flint and Alex de Waal, “Justice Off Course In Darfur,” commentary, Washington Post, June 28, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/06/27/AR2008062702632.html (accessed April 20, 2010).
[228] United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” April 14, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/296/93/PDF/N0929693.pdf?OpenElement (accessed April 20, 2010). The seriousness of the expulsion of aid agencies – who employed 40 percent of humanitarian staff working in Darfur at the time and supplied food, water, and medical care to over a million people – should not be understated. Though emergency measures were undertaken to avert the worst consequences of the expulsion, including a “combination of enhanced government capacity, an increase in responsibility assumed by the remaining humanitarian actors, and new capacities on the ground,” humanitarian aid has still not recovered nearly one year later to where it was before the expulsions. See United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” S/2009/297, June 9, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/363/65/PDF/N0936365.pdf?OpenElement (accessed April 20, 2010).
[229] United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” December 12, 2008, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/640/80/PDF/N0864080.pdf?OpenElement (accessed April 20, 2010).
[230] United Nations Security Council, “Report of the Secretary-General on the United Nations Mission in Sudan,” S/2010/168, April 5, 2010, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/299/70/PDF/N1029970.pdf?OpenElement (accessed April 20, 2010).
[231] United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” S/2008/558, August 18, 2008, http://www.un.org/ga/search/view_doc.asp?symbol=S/2008/558 (accessed April 20, 2010).
[232] United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” S/2010/50, January 29, 2010, http://www.un.org/ga/search/view_doc.asp?symbol=S/2010/50 (accessed April 20, 2010).
[233] On November 30, 2008, total UNAMID personnel numbered 15,444. United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” December 12, 2008, S/2008/781, http://www.un.org/ga/search/view_doc.asp?symbol=S/2008/781 (accessed April 20, 2010).
[234] United Nations Security Council, “Report of the Secretary-General on the deployment of the African Union—United Nations Hybrid Operations in Darfur,” S/2008/659, October 17, 2008, http://daccessdds.un.org/doc/UNDOC/DEN/No8/553/95/PDF/No855395.pdf?OpenElement (accessed April 20, 2010).
[235] Chief Prosecutor for the Sierra Leone Special Court David Crane said he had unsealed the indictment when he learned Taylor would be in Ghana and susceptible to arrest, stating, “To ensure the legitimacy of these negotiations, it is imperative that the attendees know they are dealing with an indicted war criminal.” Felicity Barringer and Somini Sengupta, “War Crimes Indictment of Liberian President is Disclosed,” New York Times, June 5, 2003, http://www.nytimes.com/2003/06/05/international/africa/05LIBE.html (accessed April 19, 2010).
[236] Jacqueline Geis and Alex Mundt, “When To Indict? The Impact of Timing of International Criminal Indictments on Peace Processes and Humanitarian Action,” Brookings report for the World Humanitarian Studies Conference, February 2009, http://www.brookings.edu/papers/2009/~/media/Files/rc/papers/2009/04_peace_and_justice_geis/04_peace_and_justice_geis.pdf (accessed April 19, 2010), pp. 3-4. See also “Liberia chaos as leader returns,” BBC News Online,June 5, 2003, http://news.bbc.co.uk/2/hi/africa/2964098.stm (accessed April 19, 2010); and Charles Cobb Jr. “Liberia: Diplomatic Dismay as Liberia Rebels Poise For Final Push and Foreigners Flee,” allAfrica.com, June 10, 2003, http://allafrica.com/stories/200306100002.html (accessed April 19, 2010).
[237] See, for example, interview with Dapo Oyewole, Center for Democracy and Development, indicating that the timing of the unsealing of the indictment undermined some of the proceedings at the peace talks and that the humanitarian situation in Nigeria needed to be addressed first. Jonathan Mann, “Insight,” CNN TV, July 29, 2003, reproduced in writing by CNN Transcripts, http://transcripts.cnn.com/TRANSCRIPTS/0307/29/i_ins.01.html (accessed April 19, 2010). See also Cobb, “Diplomatic Dismay as Liberia Rebels Poise for Final Push and Foreigners Flee,” allAfrica.com.
[238] Liberia is also an example of how impunity can lead to more atrocities. In a quick bid to end the first brutal Liberian civil war and in the face of massive crimes committed against civilians, UN and West African leaders agreed to a peace plan that dispensed with justice and rushed an election that installed warlord Charles Taylor as president in 1997. Not surprisingly, within a short time, the country was back at war. The ensuing six years of repressive rule by Taylor, and the next war, were characterized by the same egregious abuses against civilians as the earlier war, and set the country back further. Corinne Dufka, “Combating War Crimes in Africa,” Human Rights Watch testimony before the US House International Relations Committee, Africa Subcommittee, June 25, 2004, http://www.hrw.org/en/news/2004/06/25/combating-war-crimes-africa.
[239] “The executive secretary [of the Organization of West African States], Mohamed Ibn Chambas, said that announcing the charges against Charles Taylor as he was about to open the peace talks had ‘put a damper on the negotiations’ where President Taylor was making helpful offers ‘opening up tremendous opportunities’ to end the Liberian conflict.” Virginie Ladisch, “Liberian President Indicted for War Crimes,” Crimes of War Project news release, June 16, 2003, http://www.crimesofwar.org/print/onnews/liberian-print.html (accessed April 19, 2010).
[240] Barringer and Sengupta, “War Crimes Indictment of Liberian President is Disclosed,” New York Times; Lansana Gberie, Jarlawah Tonpoh, Efam Dovi, and Osei Boateng, “CHARLES TAYLOR: Why me?” New African, May 2006, reproduced at http://findarticles.com/p/articles/mi_qa5391/is_200605/ai_n21391043/ (accessed April 19, 2010), p. 13.
[241] Douglas Farah, “Tribunal Indicts Liberia’s Leader,” Washington Post, June 5, 2003, reproduced at http://www.genocidewatch.org/images/Liberia5Jun03Tribunal_Indicts_Liberia_s_Leader.pdf (accessed April 19, 2010).
[242] Priscilla Hayner, (International Center for Transitional Justice) “Negotiating Peace in Liberia: Preserving the possibility for Justice,” November 1, 2007, http://www.ictj.org/static/Africa/Liberia/HaynerLiberia1207.eng.pdf (accessed April 19, 2010), p. 6.
[243] Ibid., p. 9. See also Priscilla Hayner, “Seeking Justice as War Crimes Rage on,” Chicago Tribune, July 16, 2008, reproduced at http://www.ictj.org/en/news/coverage/article/1868.html (accessed April 19, 2010).
[244] Richard J. Goldstone, “Justice as a Tool for Peacemaking: Truth Commissions and International Tribunals,” NYU. Journal of International Law and Politics, vol. 28: 485 (1996), p. 488.
[245] Okun, “The Role of International Criminal Justice in Peace Negotiations,” Penn State International Law Review, p. 787.
[246] Ibid., p. 788.
[247] Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, (Princeton, NJ: Princeton University Press, 2000), p. 239 (“Stay the Hand of Vengeance”).
[248] Ibid., p. 233; Richard Holbrooke, “The Arrest of Sudan’s Bashir Should Proceed,” commentary, Financial Times (London), September 21, 2008, http://www.ft.com/cms/s/0/57d9e354-87ee-11dd-b114-0000779fd18c.html?nclick_check=1 (accessed April 19, 2010).
[249] “UGANDA: Amnesty and Peace groups urge ICC to probe government army too,” IRINnews, February 3, 2004, http://www.globalsecurity.org/military/library/news/2004/02/mil-040203-irin03.htm (accessed May 15, 2009), quoting a statement issued by a chief negotiator of the Acholi Religious Leaders’ Peace Initiative.
[250] “Justice for a Lawless World? Rights and reconciliation in a new era of international law,” IRIN In-Depth, July 2006, http://www.irinnews.org/pdf/in-depth/RightsAndReconciliationPart1.pdf (accessed May 15, 2009), p. 72.
[251] John Prendergast, “End This African Horror Story,” Washington Post, April 7, 2005, http://www.washingtonpost.com/wp-dyn/articles/A32735-2005Apr6.html (accessed May 18, 2009).
[252] Father Carlos Rodriguez, a Spanish missionary who was based in northern Uganda for many years, stated,
Between April and September [2004] 500 or so combatants have come out of the bush with their guns including senior officers. So the ICC might not be so discouraging as we thought. Also those who have come out of the bush have told us that the Sudan Government has not been giving them anything since January this year. So the ICC may have had an influence on Sudan. The LRA will only reduce violence out of pressure and Sudan has changed its attitude because of the ICC. They are concerned about being prosecuted… Now that Sudan is not involved, it forces the LRA to talk about peace.
Tim Allen, Crisis States Research Center, “War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention,” February 2005, http://www.crisisstates.com/download/ others/AllenICCReport.pdf (accessed May 15, 2009), p. 58.
[253] “War in northern Uganda world’s worst forgotten crisis: UN,” Agence France-Presse, November 11, 2003, quoting Jan Egeland, UN under-secretary-general for humanitarian affairs and emergency relief coordinator. See also Akhavan, “The Lord’s Resistance Army Case,” American Journal of International Law, p. 420.
[254] See Elise Keppler, “Managing Peace and Justice in the Juba Process,” (forthcoming)(manuscript on file with Human Rights Watch). At the same time, communication between LRA representatives in Juba and the LRA leadership appeared to be intermittent and suffered from a relative breakdown in the final months of the talks, raising questions as to the degree of involvement of the LRA leaders in negotiating the agreements, especially the February 2008 agreement on accountability. See International Crisis Group, “Northern Uganda: The Road to Peace, With or Without Kony,” Africa Report No. 146, December 2008, pp. 1-4; and Joe Wacha,”Kony Adds to Peace Process Turmoil,” Institute for War and Peace Reporting, July 3, 008, http://www.globalpolicy.org/component/content/article/207/39840.html (accessed September 23,
2009).
[255] Bass, “Stay the Hand of Vengeance,” p. 243.
[256] Okun, “The Role of International Criminal Justice in Peace Negotiations,” Penn State International Law Review, p. 781.
[257] Kenneth Roth (Human Rights Watch), “It’s Worth Bringing Tyrants to Justice,” commentary, International Herald Tribune, August 10, 2005, http://www.hrw.org/en/news/2005/08/10/its-worth-bringing-tyrants-justice.
[258] Bass, “Stay the Hand of Vengeance,” p. 233.
[259] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, paras. 11 (c) and 24.
[260] Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 3 (“UN Principles to Combat Impunity”).
[261] The U.N. Human Rights Committee articulated this principle in the case Quinteros v. Uruguay, concluding that the mother of a “disappeared” person was entitled to compensation as a victim, for the suffering caused by the failure of the state to provide her with information. Quinteros v. Uruguay, U.N. Human Rights Committee, Case No. 107/1981: “The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of Article 7.”
[262] “UN Principles to Combat Impunity,” principle 1.
[263] United Nations Security Council, Report of the Secretary-General to the Security Council on the protection of civilians in armed conflicts, UN Doc. S/2004/431, May 28, 2004, http://www.reliefweb.int/rw/lib.nsf/db900sid/LHON-634JZY/$file/ UNGA_Protection_civilians_Jun2004.pdf?openelement (accessed May 27, 2009), para. 55.

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