Africa Notes: Charles Taylor, Guilty!

The Special Court of Sierra Leone found Charles Taylor Guilty. Here is the summary of the judgment. As it states, he was found guilty of aiding and abetting the commission of 11 crimes, including terrorism, slavery, rape, and the use of child soldiers.

As a number of observers have noted, the guilty verdict falls short of the prosecution’s goals (The Economist). Mr. Taylor was not held directly responsible for any of these crimes. As Kevin Heller reports:

the judges have rejected the prosecution’s allegations that he participated in a JCE to commit the crimes alleged in the indictment or that he had effective control over the RUF soldiers who committed the crimes (i.e, no ordering or command responsibility).  The verdict represents a colossal victory for Taylor, even if it means that he will still receive a substantial sentence. (Opinio Juris)

However, as Heller also notes, Taylor is the second head of state to be found guilty by an international tribunal. (Before being tried at Nuremberg Karl Doenitz was President of Germany for 23 days after Hitler’s suicide. Milosevic could have been the second but he died before a verdict was reached.) (Opinio Juris).

Despite the weaker verdict, some victims apparently felt that some justice had been done here. Said the sister of one victim:

It’s good, this one is good, it’s a signal to other people that they should not completely use their money on war, ammunition, to destroy lives (Reuters)

Besides Opinio Juris, another good place to look for further reporting on this is IntlLawGrrls.

Africa Notes: Mali Update

Update: Just saw this link to a nice timeline of the conflict in northern Mali since 1891 on IRIN. (h/t Sahel Blog).

Things still look rather grim in Mali, though the situation is in constant flux. It might be useful to look at the situation from different vantage points:

The people of Mali
It is probably no surprise that in coups and wars much is done in the names of various peoples, but at least in the short-term, the peoples of Mali seem poised to suffer. While County and Peterson find that some in Mali may welcome the coup as an opportunity to introduce democratic reform, as Bonicelli suggests at Foreign Policy, the lessons for the impatient citizens in Mali might be the wrong one. Coups should not be normalized as a way to bring about democratic change.

Also unfortunate for the Mali people, and perhaps most immediately threatening, is a looming famine crisis.

And violence + famine = refugees here. The largest group outside of Mali is apparently in Mauritania (48,033) but at least 100,000 are internally displaced and others have fled to Burkina Faso, Niger, and elsewhere in West Africa. (IRIN)

The Azawad State
The rebels want their own state and even have a name for it (see Thurston’s comments at Sahel Blog). But what does it take to create a new state? What is required for secession to count? Lesley Warner’s take is that the Azawad rebels have “not been able to check the necessary boxes for international support” (h/t Sahel Blog). Indeed, ultimately statehood does rely on international recognition. So far, they seem quite far from getting it.

Over at Wronging Rights, they add a little more depth, citing the only document we have on what a state is, the 1933 Montevideo Convention on the Rights and Duties of States.

The Government of Mali
The coup leaders did step down. But the new interim President, Dioncounda Traore, does not seem to want to keep things calm. As has been wildly reported, he is threatening “total war” on the rebels in the north.

West Africa
West Africa has a strong tradition of tending to its own political crises, via African mediators and its own unique regional organization, ECOWAS. All of this is happening here. President Compaoré (Burkina Faso), opened talks on Saturday between Mali’s politicians and military. Notably absent: the Tuaregs.

Meanwhile, ECOWAS’ Mediation and Security Council recommended a regional force be deployed should mediation by President Compaoré fail. However, that force is not intended to deal with the coup so much as it is to deal with the rebels in the northern part of Mali. This is an important sign that the Azawad state lacks the regional allies it would need.

The International Community
The French are clear about their interests. Sarkozy:

…we must do everything to prevent the establishment of a terrorist or Islamic state in the heart of the Sahel. (Reuters)

Gregory Mann notes that in Paris, however, there are lots of views on the streets about the events in Mali (“Bamako-sur-Seine”).

Also, UNESCO is worried about the cultural treasures of Timbuktu.

And So…
And so things continue to move. I shouldn’t try to predict but… my best bet is that we will see a gradual return to constitutional rule in the southern part of the country followed by a slow and torturous attempt to regain control of the north. ECOWAS will play a key role in this and a year from now we will barely hear anything more about it. But I really hope I am wrong about the torturous bit. I would much prefer that this become an opportunity for national dialog about how to better serve the needs of the Tuareg populations in the north.

The Right to Access Your Consulate

Let’s say you are on vacation somewhere outside of the United States–let’s say it is Europe–and you run into some serious legal problems. Perhaps you find yourself being charged with a serious crime, such as murder or being an American spy. An unlikely scenario for most of us, but it might still make you feel a little better to know that you have a right to contact the American consulate and request advice or assistance from your home country. Indeed, this is a real concern for American military and aid personnel serving overseas. And it is a right that even so-called rogue nations respect, as Liz Goodwin notes in a recent article. North Korea granted such access to American journalists it jailed and Iran did the same for the American hikers it thought were spies.

The Vienna Convention on Consular Relations, adopted in 1963, both created new international law and codified pre-existing international customs. Much of its 79 articles focus on the definitions of consular activities and the rights and immunities of consular staff. Article 36, however, has been broadly interpreted as providing foreigners who are arrested a right to access their home country consulates.

Al of this seems straightforward, so why is there a problem in the United States? On one level, there is a question of federalism. The typical VCCR case that makes its way into law school case books, cases such as Medellin, Avena, and LaGrand, have often involved American Presidents trying to tell Governors to stay executions of foreign nationals because their consular rights were never invoked. Indeed, this is exactly what is happening right now. President Obama, and his solicitor-general are asking Texas to grant a stay of execution. This is to give Congress time to finally pass legislation that will finally incorporate American obligations under the treaty it signed and ratified into the domestic legal system, as the Supreme Court has said is required. So this goes to the second reason for the problem today. There is disagreement as to whether our original ratification of the treaty was sufficient and self-executing (as the Massachusetts Supreme Judicial Circuit has apparently said), or whether Congress was required to enact legislation first (what the Supreme Court has said).

So here we are. Tomorrow, July 7, the State of Texas is scheduled to execute Mexican national Humberto Leal. Whether or not he is guilty (likely he is, in this case) and whether or not an intervention from the consulate would have altered the penalty, we should still be aware that how we treat the nationals of other countries may impact how those other countries treat our own nationals.

One of the key principles underpinning international law is reciprocity. We often make agreements and uphold those agreements in the hope that others will do the same. As so many observers have been pointing out, this is one issue where the United States is not upholding its end of the bargain and if that continues we should be worried that others will no longer do the same for us. Let’s hope that Congress finally passes this legislation so that we can put this issue to rest.

News and Comment: last weekend of March roundup

Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials from the NY Times.  Judge Baltasar Garzon is at it again. He was the Spanish judge who ordered the arrrest of former Chilean dictator Pinochet. He also has looked into the activities of Basque separatists and the executions of the Franco era.  This time, due to the fact that some Spanish citizens or residents were detained at Gauntanamo, Spain can claim some jurisdiction.  It will be interesting to see how far this goes.

Staying in Touch Internationally, on the Cheap from the NY Times. Includes some great ideas for using cell phones while traveling internationally.  One option it mentions is Google Voice, which has taken over from Grand Central (a service I signed up for early on but never followed through on).  This could really make things easy for those of us who travel abroad.

The African Export-Import Bank talks up the potential benefits of South-South trade. But Botswana’s Minister of Finance and Development Planning complains about how Africa is “marginalised and patronised” during the current financial crisis.

Finally, Zimbabwe retains its pariah status as the US continues sanctions. It may not help that Mugabe remains n power and continues to act friendly towards exiled former Ethiopian dictator Mengistu.

 


Darfur and the ICC

A major debate has been brewing over whether the ICC’s decision to issue an arrest warrant for Sudanese President Omar Al Bashir was a “good idea”. In my view, our answer to this question depends on our criteria for a “good idea”. I think a common perception is that this is a justice versus order issue. Justice may be achieved by the ICC’s actions, but at the cost of more lives and greater political chaos in the Sudan. However, a number of commentators have (rightfully) muddied that easy equation. A roundtable discussion at The New Republic is also trying to answer these questions while making suggestions for what, exactly Obama should do.

Criteria One: Good Idea = Contributes to End of the Humanitarian Disaster in Darfur

Probably the most popular criteria is based on the assumption that our primary goal should be to end the current humanitarian disaster in Darfur, whether or not we call it a genocide (I still like Scott Strauss’ Foreign Affairs article on this point).

Julian Ku at Opinion Juris makes the clear academic argument that international criminal tribunals can lead to greater humanitarian atrocities (but not that this is a necessary outcome). Michael Kleinman offers a similar view from the perspective of someone who has worked in the field of humanitarian relief, arguing about the already clear dire humanitarian consequences of the ICC’s decisions.

Chris Blattman,  is among those who seriously doubt that the ICC’s actions can have positive consequences. He has a great link to Wronging Rights’ post on the subject.

However, one could also make the argument that the short-term costs are outweighed by the long-term benefits of action, as Kevin Heller seems to in a recent post. After all, someone has to do something about the roots of the crisis and no other actions (yet) seem to aim for that.

Criteria Two: Good Idea = Contributes to the Development of International Human Rights

Human Rights Watch clearly supports the ICC’s decision. In a separate Q&A section, they highlight the cases that arrest warrants against Liberian leader Charles Taylor and Bosnian Serb leader Radovan Karadzic actually helped the peace processes in those countries as well. One can wonder whether these are useful cases as a number of commentators have mentioned that, for instance, the international community only went after Milosevic once the conflict had been settled.

Alex de Waal also makes a great case for how the ICC actions may actually undermine the cause of human rights in Africa. He wonders whether African countries will follow Libya’s calls to de-ratify the Rome Statute of the ICC.  I’m not convinced this is really going to happen on a large scale, but it is true that the ICC’s actions may make some African states that have not joined more wary about joining (there are only 30 African states that have ratified at this point, I believe).

Criteria Three: Good Idea = Contributes to Justice (International and/or Local)

As some of the commentators already mentioned above have argued, the question of how to achieve justice is far from clear. Alex de Waal mentions Archbishop Desmond Tutu’s New York Times call for African states to support the ICC and its role in providing justice.  However, Alex notes that South Africa demonstrated that retributive justice is not the only form of justice.  Additionally, there is the concern that ICC’s actions have undermined the ability of local judicial (and political–there is to be an election later this year) institutions to deal with the problem.

Criteria Four: Good Idea = This is What International Law Tells Us to Do

This is essentially the case that Eric Reeves makes when he argues that Obama should support the ICC’s actions (Elizabeth Rubin makes a similar point.)

Some question issues of ICC jurisdiction and whether the UN Security Council’s referral to the ICC undermines the principle of complementarity (the idea that the ICC should be a court of last resort and that local judicial institutions should be used first).

Relevant to these points is a consideration of the proper role of the ICC. Should we think of ICC prosecutors as we think of criminal prosecutors in domestic legal systems?  A common theme in American legal textbooks is that the role of the prosecutor is “to seek justice”. This is not too different from the primary emphasis described in the Rome Statue: Prosecutors should investigate crimes.  Does the ICC really have any responsibility to consider the trade-offs between justice and peace/order?  Justice Goldstone has argued that the Prosecutor’s duites are “exernal to the political process of negotiations to end armed conflict”, but there is an “order” dimension to Moreno-Ocampo’s assertion that the Prosecutor’s office should also contribute to the prevention of crimes (see Winfield‘s post on this). But has the international community provided the ICC with all of the necessary tools to consider such trade-offs?

Further Thoughts on What To Do About Leaders We Do Not Like

All of this reminds me of arguments that have been made a number of times about what should be done about problematic political leaders, and especially dictators.  Scott Adams, of Dilbert fame, has even piped in on such debates with his idea of a “retired dictator program”.  His idea is more serious than it might at first sound.  Kieth Hartley at York University, made the argument in 2005 that it would have been cheaper to pay Saddam Hussein to leave Iraq. And, while optimistic about the role of an ICC, Hans Koechler has argued in the past that “the promise of a comfortable pension or discreet exile is sometimes the most expedient way to dislodge despots from power” (cited by Jeremy Bransten).

More generally–and not necessarily directed at “bad” leaders–Mo Ibrahim has wondered whether something should be done to make retirement more attractive to African leaders. This thinking contributed to his prize for African leaders who rule fairly and resign to elected successors.

Final Thoughts

In many respects, the debate about whether or not the ICC should have issued an arrest warrant for President Omar Al Bashir is rapidly losing relevancy.  We now need to turn to thinking about what to do about the current situation. Clearly there have been short-term negative consequences for the humanitarian situation in Darfur.  What can we do to make the medium- and long-term situation improve?