Alemayehu G Mariam
The International Criminal Court (ICC) is on the chase; and over the past few months, things have taken a slow turn for the worse for African dictators and human rights violators. They are finding out that they can’t run and they can’t hide.
Laurent “Cling-to-power-at-any-cost” Gbagbo of Cote d’Ivoire was snatched from his palatial hiding place in April 2011 after he defiantly refused to give up power to Alassane Ouattara in a presidential election certified by international observers in December 2010. In late November 2011, Gbagbo was quietly whisked away to the Hague from house arrest in Korhogo in the north of the country to face justice before the ICC on charges of crimes against humanity (murder, rape and other forms of sexual violence, persecution and other inhuman acts) that were allegedly committed during the post-election period. The U.N. estimates well over three thousand people died between December 2010 and April 2011 as a result of extrajudicial killings by supporters of Gbagbo and Ouattara. Gbagbo is the second former head of state to be tried by the ICC since it was set up in 2002.
Last week, a High Court judge in Kenya ordered Kenyan officials to arrest and deliver Sudan’s president Omar Al-Bashir to the ICC to face charges of crimes against humanity, war crimes and genocide if he ever set foot again in Kenya. The U.N. estimates well over 300,000 people have perished under Bashir’s regime. Bashir unsuccessfully claimed immunity from prosecution as a sitting head of state. Nearly all of the other unindicted African dictators have chimed in to severely criticize the ICC and demand suspension of Bashir’s arrest warrant. Five other suspects are also sought on ICC warrants in the Sudan including Ahmed Haroun, a lawyer and minister of humanitarian affairs, Ali Kushayb, a former senior Janjaweed (local militiamen allied with the Sudanese regime against Darfur rebels), Bahr Idriss Abu Garda, a rebel leader and two others.
In another development in Kenya last week, Uhuru Kenyatta, finance minister and son of Kenya’s famed independence leader Jomo Kenyatta, resigned following an ICC ruling that he will face trial for crimes against humanity in connection with the communal post-election violence between supporters of presidential candidates Raila Odinga and Mwai Kibaki in 2008. The U.N. estimates some 1,200 people died in weeks of unrest between December 2007 and February 2008 and 600,000 people were forcibly displaced. Cabinet secretary Francis Muthaura, a close ally of president Mwai Kibaki, former Education Minister William Ruto and radio announcer Joshua arap Sang face similar charges.
The ICC had also issued arrest warrants for Moammar Gaddafi, his son Saif al-Islam and Libyan intelligence chief Abdullah al-Senussi on charges of crimes against humanity. Last week, Libya’s Justice Minster announced that Libya, and not the ICC, will be trying Saif al-Islam. Al-Senoussi remains a fugitive from justice.
Last but not forgotten is former Liberian president Charles Taylor who went on trial on charges of crimes against humanity and war crimes in The Hague before the Special Court for Sierra Leone. He is awaiting a verdict after a nearly three and half year trial.
The ICC presently has open investigations against individuals in various countries including Uganda, DR Congo, Central African Republic, Darfur and Cote d’Ivoire. The rogue’s gallery of suspects sought in ICC issued arrest warrants for crimes against humanity and war crimes include five senior leaders of the “Lord’s Resistance Army” in Uganda including the notorious Joseph Kony and his deputy Vincent Otti and three other top commanders. In the DR Congo various rebel and militia leaders and Congolese military officers and politicians including Thomas Lubanga Dyilo, Jean-Pierre Bemba Gombo, Bosco Ntaganda, Mathieu Ngudjolo Chui and two others are targets of ICC investigation.
No ICC, No Justice?
The ICC, established in 2002, is an institution with a lot of legal and political limitations in its investigative and prosecutorial duties. For instance, it has authority over “crimes against humanity” only if the acts were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The crimes must have been “extensively or rationally orchestrated” by the perpetrators. The ICC can investigate cases only where the accused is a national of a state party that has accepted ICC jurisdiction and the alleged crime took place on the territory of a state party, or if a “situation” is referred by the Security council. Most importantly, it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.
The ICC has a very difficult job to do in investigating and chasing the world’s worst human rights violations across the planet. Despite its recent establishment, obstacles and limitations, it has a respectable record. As of September 2010, the Office of the ICC Prosecutor had received 8,874 “communications” about alleged human rights violations. After an initial review, it declined to proceed with 4,002 of them concluding that they are “manifestly outside the jurisdiction of the Court”. To date, the Court has opened investigations in seven African countries. Three investigations began following referral by state parties, the UN Security Council referred two more (Darfur and Libya) and two were begun proprio motu (“ICC prosecutor began on his own initiative”). To date, the ICC has charged 27 people and issued arrest warrants for 18 more. Five individuals are in various stages of trial and eight remain at large as fugitives. Two individuals died before their trials concluded and charges were dismissed against four.
The one unsettled question is what happens to those individuals who commit crimes against humanity, war crimes and genocide in official or unofficial capacity but cannot be prosecuted because they are not part of the regime of the Rome Statute which established the ICC. For instance, Ethiopia has not ratified or accepted the Rome Statute and technically does not come under ICC jurisdiction. Does that mean the individuals who perpetrated crimes against humanity and war crimes in that country will never be held accountable under any international system of criminal justice?
The evidence of crimes against humanity and war crimes in Ethiopia is fully documented, substantial and overwhelming. An official Inquiry Commission report in 2006 documented the extrajudicial killing of at least 193 persons, wounding of 763 others and arbitrary imprisonment of nearly 30,000 persons in the post-2005 election period in that country. There are at least 237 individuals identified and implicated in these crimes. In December 2003, in Gambella, Ethiopia, 424 individuals died in extrajudicial killings by security forces. In the Ogaden, reprisal “executions of 150 individuals” and 37 others were documented by Human Rights Watch in 2008 which charged:
Ethiopian military personnel who ordered or participated in attacks on civilians should be held responsible for war crimes. Senior military and civilian officials who knew or should have known of such crimes but took no action may be criminally liable as a matter of command responsibility. The widespread and apparently systematic nature of the attacks on villages throughout Somali Region is strong evidence that the killings, torture, rape, and forced displacement are also crimes against humanity for which the Ethiopian government bears ultimate responsibility.
In 2010, Human Rights Watch made a submission to the U.N. Committee Against Torture “regarding serious patterns of torture and other cruel, inhuman, and degrading treatment in Ethiopia.”
Torture and ill-treatment have been used by Ethiopia’s police, military, and other members of the security forces to punish a spectrum of perceived dissenters, including university students, members of the political opposition, and alleged supporters of insurgent groups, as well as alleged terrorist suspects. Human Rights Watch has documented incidents of torture and ill-treatment by Ethiopian security forces in a range of settings. The frequency, ubiquity, and patterns of abuse by agents of the central and state governments demonstrate systematic mistreatment involving commanding officers, not random activity by rogue soldiers and police officers. In several cases documented by Human Rights Watch, military commanders participated personally in torture.
The are obvious limits to the globalization of criminal justice under the ICC regime. But does that mean human rights violators who are not subject to ICC jurisdiction get away with murder, torture, war crimes and genocide? Maybe not.
There is an encouraging trend globally that more and more national courts are willing to operate under the doctrine of universal jurisdiction to prosecute gross human rights violators for atrocities committed outside their countries. Simply stated, if someone who committed crimes against humanity, war crimes or genocide is found in another country where the crimes were not committed, that country makes it its obligation to bring the perpetrator to justice using its own courts. For instance, Article 5 of the United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment and Punishment provides that each State shall “take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him.”
Universal jurisdiction has been exercised in a number of high profile cases. A Spanish judge charged former Chilean president Augusto Pinochet in 1998 for crimes against humanity committed in Chile. After years of appeal and delays, Pinochet died in 2006 without facing justice. A Belgian court in 2001 convicted the killers of two Rwandan nuns for war crimes during the 1994 Rwandan genocide. A Belgian court in 2005 indicted the former president of Chad, Hissène Habré, for crimes against humanity, torture, war crimes and other human rights violations committed during his presidency in Chad. Two weeks ago, a Senegalese court blocked the extradition of the Chadian dictator because Belgium failed to file the “original arrest warrant and other papers”. A German court has convicted a former leader of a paramilitary Serb group for acts of genocide committed in Bosnia and Herzegovina in 1997. Over the past several decades, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law including Australia, Belgium, Canada, France, Germany, Netherlands, Norway, Spain, the UK and the United States of America.
There are other non-criminal legal remedies as well. For instance, the Human Rights Violators and War Crimes Unit (HRVWCU) in the U.S. Immigration and Customs Enforcement’s (ICE) National Security Investigations Division conducts investigations to prevent foreign war crimes suspects, persecutors and human rights abusers from entering the United States. It also identifies, prosecutes and deports such offenders who have entered the U.S. Over the past 8 years, ICE has arrested more than 200 individuals for human rights-related violations under various criminal and/or immigration statutes and deported more than 400 known or suspected human rights violators from the United States. Currently, ICE is pursuing more than 1,900 leads and removal cases involving suspected human rights violators from nearly 95 different countries. HRVWCU receives anonymous tips and information from those who report suspected war criminals and human rights violators residing in the U.S. Individuals seeking to report suspected human rights violators may contact the HRV unit at [email protected]
Justice Delayed is Not Justice Denied, Just Delayed
Justice delayed is just delayed. The victims of former Chilean dictator Gen. Augusto Pinochet might have thought justice delayed is justice denied. So may have thought the victims of Argentina’s Dirty War. The facts are very encouraging. Since December 2006, Chilean prosecutors and judges have convicted hundreds of former military personnel in the Pinochet regime accused of committing grave human rights violations. As of July 2008, 482 former military personnel and civilian collaborators were facing charges for a variety of offenses classified under crimes against humanity. Among these, 256 had been convicted, of whom 83 had had their convictions confirmed on appeal. In the Argentine Dirty War (the generals’ war against thousands of activists, militants, trade unionists, students, journalists and others), the mighty generals have been held to account. Many of the top military officers involved including Leopoldo Galtieri, general and President of Argentina, Jorge Rafael Videla, former senior Army commander and de facto President and other lesser known top officers were tried and sentenced to life imprisonment or long prison terms. Hosni Mubarak, Egypt’s dictator for over three decades, his sons, interior minsiter and others are today facing justice in an Egyptian court. Syria’s Bashar al-Assad of Syria and Ali Saleh of Yemen will no doubt face justice in Syria, Yemen or elsewhere. Justice will also arrive like a slow, chugging and delayed train for those who have committed crimes against humanity and war crimes in Ethiopia.
Previous commentaries by the author are available at: www.huffingtonpost.com/alemayehu-g-mariam/ and http://open.salon.com/blog/almariam/
Alemayehu G. Mariam
Sudan’s Best and Worst of Times
It is the best of times in the Sudan. It is the worst of times in the Sudan. It is the happiest day in the Sudan. It is the saddest day in the Sudan. It is referendum for the Sudan. It is requiem for Africa.
South Sudan just finished voting in a referendum, part of a deal made in 2005 to end a civil war that dates back over one-half century. The Southern Sudan Referendum Commission (SSRC) says the final results will be announced on February 14; but no one really believes there will be one united Sudan by July 2011. By then, South Sudan will be Africa’s newest state.
In a recent speech at Khartoum University, Thabo Mbeki, former South African president and Chairperson of the African Union High-level Implementation Panel on Sudan, alluded to the causes of the current breakup of the Sudan: “As all of us know, a year ahead of your independence, in 1955, a rebellion broke out in Southern Sudan. The essential reason for the rebellion was that your compatriots in the South saw the impending independence as a threat to them, which they elected to oppose by resorting to the weapons of war.” There is a lot more to the South Sudanese “rebellion” than a delayed rendezvous with the legacy of British colonialism. In some ways it could be argued that the “imperfect” decolonization of the Sudan, which did not necessarily follow the boundaries of ethnic and linguistic group settlement, led to decades of conflict and civil wars and the current breakup.
Many of the problems leading to the referendum are also rooted in post-independence Sudanese history — irreconcilable religious differences, economic exploitation and discrimination. The central Sudanese government’s imposition of “Arabism” and “Islamism” (sharia law) on the South Sudanese and rampant discrimination against them are said to be a sustaining cause of the civil war. South Sudan is believed to hold much of the potential wealth of the Sudan including oil. Yet the majority of South Sudanese people languished in abject poverty for decades, while their northern compatriots benefitted disproportionately.
Whether the people of South Sudan will secede and form their own state is a question only they can decide. They certainly have the legal right under international law to self-determination, a principle enshrined in the U.N. Charter. Their vote will be the final word on the issue. The focus now is on what is likely to happen after South Sudan becomes independent. Those who seem to be in the know sound optimistic. Mbeki says, “Both the Government of Sudan and the SPLM have made the solemn and vitally important commitment that should the people of South Sudan vote for secession, they will work to ensure the emergence and peaceful coexistence of two viable states.” The tea leaves readers and pundits are predicting doom and gloom. They say the Sudan will be transformed into a hardline theocratic state ruled under sharia law. There will be renewed violence in Darfur, South Kurdofan and Eastern Sudan. There will be endless civil wars that will cause more deaths and destruction according to the modern day seers.
To some extent, the pessimism over Sudan’s future may have some merit. Sudanese president Omar al-Bashir’s told the New York Times recently about his post-secession plans: “We’ll change the Constitution. Shariah and Islam will be the main source for the Constitution, Islam the official religion and Arabic the official language.” Bashir’s plan goes beyond establishing a theocratic state. There will be no tolerance of diversity of any kind in Bashir’s “new Sudan”. He says, “If South Sudan secedes, we will change the Constitution, and at that time there will be no time to speak of diversity of culture and ethnicity.” Bashir’s warning is not only shocking but deeply troubling. The message undoubtedly will cause great alarm among secularists, Southern Sudanese living in the north who voted for unity and Sudanese of different faiths, viewpoints, beliefs and ideologies. In post-secession Sudan, diversity, tolerance, compromise and reconciliation will be crimes against the state. It is all eerily reminiscent of the ideas of another guy who 70 years ago talked about “organic unity” and the “common welfare of the Volk”. Sudanese opposition leaders are issuing their own ultimata. Sadiq al-Mahdi, leader of the Umma Party, issued a demand for a new constitution and elections; in the alternative, he promised to work for the overthrow of Bashir’s regime. Other opposition leaders seem to be following along the same line. There is a rocky road ahead for the Sudan, both south and north.
From Pan-Africanism to Afro-Fascism?
The outcome of the South Sudanese referendum is not in doubt, but where Africa is headed in the second decade of the 21st Century is very much in doubt. Last week, Tunisian dictator Ben Ali packed up and left after 23 years of corrupt dictatorial rule. President Obama “applauded the courage and dignity of the Tunisian people” in driving out the dictator. Ivory Coast’s Laurent Gbagbo is still holed up in Abidjan taunting U.N. peacekeepers and playing round-robin with various African leaders. Over in the Horn of Africa, Meles Zenawi is carting off businessmen and merchants to jail for allegedly price-gouging the public and economic sabotage. What in the world is happening to Africa?
When African countries cast off the yoke of colonialism, their future seemed bright and limitless. Independence leaders thought in terms of Pan-Africanism and the political and economic unification of native Africans and those of African heritage into a “global African community”. Pan-Africanism represented a return to African values and traditions in the struggle against neo-colonialism, imperialism, racism and the rest of it. Its core value was the unity of all African peoples.
The founding fathers of post-independence Africa all believed in the dream of African unity. Ethiopia’s H.I.M. Haile Selassie, Ghana’s Kwame Nkrumah, Kenya’s Jomo Kenyatta, Tanzania’s Julius Nyerere, Guinea’s Ahmed Sékou Touré, Zambia’s Kenneth Kaunda and Egypt’s Gamal Abdel Nasser were all declared Pan-Africanists. On the occasion of the establishment of the permanent headquarters of the Organization for African Unity (OAU) in Addis Ababa on May 25, 1963, H.I.M. Haile Selassie made the most compelling case for African unity:
We look to the vision of an Africa not merely free but united. In facing this new challenge, we can take comfort and encouragement from the lessons of the past. We know that there are differences among us. Africans enjoy different cultures, distinctive values, special attributes. But we also know that unity can be and has been attained among men of the most disparate origins, that differences of race, of religion, of culture, of tradition, are no insuperable obstacle to the coming together of peoples. History teaches us that unity is strength, and cautions us to submerge and overcome our differences in the quest for common goals, to strive, with all our combined strength, for the path to true African brotherhood and unity…. Our efforts as free men must be to establish new relationships, devoid of any resentment and hostility, restored to our belief and faith in ourselves as individuals, dealing on a basis of equality with other equally free peoples.
Pan-Africanism is dead. A new ideology today is sweeping over Africa. Africa’s home grown dictators are furiously beating the drums of “tribal nationalism” all over the continent to cling to power. In many parts of Africa today ideologies of “ethnic identity”, “ethnic purity,” “ethnic homelands”, ethnic cleansing and tribal chauvinism have become fashionable. In Ivory Coast, an ideological war has been waged over ‘Ivoirité (‘Ivorian-ness’) since the 1990s. Proponents of this perverted ideology argue that the country’s problems are rooted in the contamination of genuine Ivorian identity by outsiders who have been allowed to freely immigrate into the country. Immigrants, even those who have been there for generations, and refugees from the neighboring countries including Burkina Faso, Mali, Guinea and Liberia are singled out and blamed for the country’s problems and persecuted. Professor Gbagbo even tried to tar and feather the winner of the recent election Alassane Ouattara (whose father is allegedly Burkinabe) as a not having true Ivorian identity. Gbagbo has used religion to divide Ivorians regionally into north and south.
In Ethiopia, tribal politics has been repackaged in a fancy wrapper called “ethnic federalism.” Zenawi has segregated the Ethiopian people by ethno-tribal classification like cattle in grotesque regional political units called “kilils” (reservations) or glorified apartheid-style Bantustans or tribal homelands. This sinister perversion of the concept of federalism has enabled a few cunning dictators to oppress, divide and rule some 80 million people for nearly two decades. South of the border in Kenya, in the aftermath of the 2007 elections, over 600 thousand Kenyans were displaced as a result of ethnic motivated hatred and violence. Over 1,500 were massacred. Kenya continues to arrest and detain untold numbers of Ethiopian refugees that have fled the dictatorship of Meles Zenawi. What more can be said about Rwanda that has not already been said.
It is not only the worst-governed African countries that are having problems with “Africanity”. South Africa has been skating on the slippery slope of xenophobia. Immigrants from Mozambique, Malawi, Zimbabwe and Ethiopia have been attacked by mobs. According to a study by the Southern African Migration Project (SAMP): “The ANC government – in its attempts to overcome the divides of the past and build new forms of social cohesion… embarked on an aggressive and inclusive nation-building project. One unanticipated by-product of this project has been a growth in intolerance towards outsiders… Violence against foreign citizens and African refugees has become increasingly common and communities are divided by hostility and suspicion.” Among the member countries of the Southern African Development Community (SADC), South Africans expressed the harshest and most punitive anti-foreigner sentiments in the study. How ironic for a country that was under apartheid less than two decades ago.
Whether it is the “kilil” ideology practiced in Ethiopia or the “Ivorite” of Ivory Coast, the central aim of these weird ideologies is to enable power hungry and bloodthirsty African dictators to cling to power by dividing Africans along ethnic, linguistic, tribal, racial and religious lines. Fellow Africans are foreigners to be arrested, jailed, displaced, deported and blamed for whatever goes wrong under the watch of the dictators. The old Pan-African ideas of common African history, suffering, struggle, heritage and legacy are gone. There is no unifying sense African brotherhood or sisterhood. Africa’s contemporary leaders, or more appropriately, hyenas in designer suits and uniforms, have made Africans strangers to each other and rendered Africa a “dog-eat-dog” continent.
In 2009, in Accra, Ghana, President Obama blasted identity politics as a canker in the African body politics:
We all have many identities – of tribe and ethnicity; of religion and nationality. But defining oneself in opposition to someone who belongs to a different tribe, or who worships a different prophet, has no place in the 21st century…. In my father’s life, it was partly tribalism and patronage in an independent Kenya that for a long stretch derailed his career, and we know that this kind of corruption is a daily fact of life for far too many.
For what little it is worth, for the last few years I have preached from my cyber soapbox against those in Africa who have used the politics of ethnicity to cling to power. I firmly believe that our humanity is more important than our ethnicity, nationality, sovereignty or even Africanity! As an unreformed Pan-Africanist, I also believe that Africans are not prisoners to be kept behind tribal walls, ethnic enclaves, Ivorite, kilils, Bantustans, apartheid or whatever divisive and repressive ideology is manufactured by dictators, but free men and women who are captains of their destines in one un-walled Africa that belongs to all equally. “Tear down the walls of tribalism and ethnicity in Africa,” I say.
It is necessary to come up with a counter-ideology to withstand the rising tide of Afro-Fascism. Perhaps we can learn from Archbishop Desmond Tutu’s ideas of “Ubuntu”, the essence of being human. Tutu explained: “A person with Ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good, for he or she has a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.” I believe “Ubuntu” provides a sound philosophical basis for the development of a human rights culture for the African continent based on a common African belief of “belonging to a greater whole.” To this end, Tutu taught, “Do your little bit of good where you are; it’s those little bits of good put together that overwhelm the world.” More specifically, Africa.
“Afri-Cans” and “Afri-Cannots”
As for South Sudan, the future holds many dangers and opportunities. Africans have fought their way out of colonialism and become independent. Some have seceded from the post-independence states, but it is questionable if they have succeeded. How many African countries are better off today than they were prior to independence? Before secession? As the old saying goes: “Be careful what you wish for. You may receive it.” We wish the people of South and North Sudan a future of hope, peace, prosperity and reconciliation.
I am no longer sure if Afri-Cans are able to “unite for the benefit of their people”, as Bob Marley pleaded. But I am sure that Afri-Cannot continue to have tribal wars, ethnic domination, corruption, inflation and repression as Fela Kuti warned, and expect to be viable in the second decade of the Twenty-First Century. In 1963, H.I.M. Haile Selassie reminded his colleagues:
Today, Africa has emerged from this dark passage [of colonialism]. Our Armageddon is past. Africa has been reborn as a free continent and Africans have been reborn as free men…. Those men who refused to accept the judgment passed upon them by the colonisers, who held unswervingly through the darkest hours to a vision of an Africa emancipated from political, economic, and spiritual domination, will be remembered and revered wherever Africans meet…. Their deeds are written in history.
It is said that those who do not remember history are doomed to repeat it. I am afraid Africa’s Armageddon is yet to come. Africa has been re-enslaved by home grown dictators, and Africans have become prisoners of thugs, criminals, gangsters, fugitives and outlaws who have seized and cling to power like parasitic ticks on a milk cow. Cry for the beloved continent!