RtoP Weekly: 11-15 May 2015

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ICRtoP Event: Is International Law Effective in Preventing Genocide?

Lessons Learned from Darfur
May 26th, 2015, 6:30-8pm
New York City Bar Association

With the end of World War II, the international community took up the pledge of “Never Again,” vowing to ensure action in the face of genocide. Despite progress made to identify the risk of and respond to the commission of atrocity crimes, such as genocide, war crimes, and crimes against humanity, the international community has all too often shown an inability and, in some circumstances, failure to act to protect populations from these most horrific crimes. The continuing crisis in Darfur and the international community’s inability to ensure the arrest of Sudanese President Omar Al-Bashir, despite an arrest warrant issued by the International Criminal Court for genocide, is but one example. Impunity for genocide sets a dangerous precedent for leaders who may continue to rely on the commission of such crimes to maintain their hold on power. Ending impunity for perpetrators of genocide is thus essential in preventing future genocides.

The apparent failure to heed the lessons from past and present genocides also calls for a serious reflection on strategies for a more comprehensive approach to genocide prevention.

This panel, hosted by the ICRtoP, the Cyrus Vance Center for International Justice, and the International Justice Project, will convene experts from the U.S. government, the United Nations, the International Criminal Court, and local and international human rights NGOs, among others, to instruct on how various diplomatic, legal, economic, and humanitarian tools have been used to respond to past conflict situations, discuss their effectiveness in addressing and preventing mass atrocities, and most critically, explore ways in which civil society, including private lawyers, can employ such mechanisms to help strengthen national legislation and institutions to prevent atrocity crimes.
For more information and to register, click here.

Catch up on developments in…

Burma/Myanmar
Burundi
Central African Republic
Democratic Republic of Congo
Iraq
Libya
Mali

Nigeria
South Sudan
Sudan/Darfur
Syria
Other


Burma/Myanmar:

Nearly 2,000 sea migrants from Myanmar were rescued or swum to safety in Malaysia and Indonesia last weekend. However, a wooden fishing boat carrying hundreds of migrants from Myanmar is adrift at sea without food or water, after Malaysia refused to take them in. According to The Guardian, Rohingya Muslims are braving such risks of death at sea to escape their “open-air prison” in Myanmar, but Indonesia, Thailand, and Malaysia are all refusing new migrants.


Burundi

More than 50,000 refugees have poured into Rwanda from Burundi. An army general attempted a coup while President Nkurunziza was abroad in Tanzania, though whether he was successful is unclear. The general, Godefrois Niyombare, said he was working with civil society, religious leaders, and politicians to form a transitional government. Concerns are mounting that Burundi’s electoral violence could have a major impact on the electionsscheduled next year in Rwanda and the Democratic Republic of the Congo. The Global Centre for the Responsibility to Protect released a statement on Burundi reminding the Army, Police and government of their shared responsibility to protect.

ICRtoP member International Crisis Group has a new Q & A with Thierry Vircoulin on the coup and its implications.


Central African Republic:

Ten armed groups agreed to a peace deal requiring them to disarm at the Bangui Peace Forum. The agreement also stipulated that no amnesty would be granted for atrocity crimes, and called for the urgent creation of a special criminal court for such crimes in CAR. Amnesty International called for follow-through on the accountability promises made in the accord. Armed groups released more than 300 children, including several under 12 years old, thanks to an agreement facilitated by UNICEF.


Democratic Republic of the Congo

At least 7 bodies, presumed to be hacked to death by machetes and axes, were found near Beni, where a series of massacres have left 300 dead in seven months. It is unclear if ADF rebels committed the most recent killings. The DRC is requesting the extradition of the leader of the ADF, Jamil Mukulu, from Tanzania. Mukulu was arrested by Tanzania in April. MONUSCO announced that Bantu militiamen had massacred dozens of Pygmies over the past week, in a conflict driven by social inequities.


Iraq:

Iraq began training Sunni tribal fighters to help in the battle against ISIS, an initiative backed by the U.S. ISIS militants staged a prison break near Baghdad, freeing prisoners and gaining access to the jail’s weapons stores.


Libya

At a briefing to the UN Security Council on Tuesday, ICC Prosecutor Fatou Bensouda urgedthe international community to be more proactive in helping restore peace in Libya, while also announcing that she is prepared to investigate crimes allegedly committed by ISIS in Libya. ICRtoP Member Human Rights Watch also called the Security Council to speak out strongly against impunity in Libya. According to Amnesty International, refugees and migrants across Libya are at risk of torture, rape, and abductions. Four children were killed in a rocket attack in Benghazi, for which ISIS claimed responsibility.


Mali:

A Tuareg rebel alliance, the Coordination of Azawad Movements (CMA), signed a preliminary peace agreement with the government, but clarified that the initial accord represented only their “commitment to peace.” They underscored that many pending issues would have to be resolved before singing a final accord.


Nigeria:

The military placed Maiduguri under curfew after a surprise attack by Boko Haram on Tuesday. President Idriss Deby of Chad claimed that Nigerian and Chadian troops are not cooperating in the fight against Boko Haram. Nigerian soldiers have been found guilty of mutiny and sentenced to death for refusing to fight against Boko Haram. The soldiers protest that they lacked weapons.


South Sudan:

South Sudan’s parliament passed a new bill “regulating NGOs”, which would require aid agencies in South Sudan to ensure that no more than 20% of their staff are foreigners. The South Sudan NGO Forum protested that the bill would hinder the delivery of services and “cost lives.” Over 300,000 civilians have been left without assistance in Unity State after the UN and aid agencies were forced to evacuate after a surge of fighting. UNMISS expressedconcern over reports from Unity of the torching of villages, killing, abductions, rape, and forced displacements. Meanwhile, the South Sudanese government rejected a proposal by UNMISS to relocate over 100,000 internally displaced persons from civilian protection sites to their places of choice, including villages and towns held by rebels.

IPI released a new issue brief on State Formation, Humanitarianism, and Institutional Capabilities in South Sudan.


Sudan/Darfur:

Sudan claims that it has made progress against rebels in Darfur. Over 100 people were killedin tribal clashes in East Darfur this week, while UNAMID called for restraint over rising tensions between the Rezeigat and Ma’alia tribes. Sudan’s first vice-president demanded thefinalization of consultations on a referendum to decide Darfur’s administrative status, an element of the Doha Document for Peace in Darfur. A Sudanese militia commander declaredTawila, in North Darfur, a military area, saying that people may be targeted.


Syria:

The Commission for International Justice and Accountability claims they have compiled enough evidence from smuggled documents to indict Assad and 24 members of his regime for war crimes. The Syrian National Coalition announced that it would not be attending the Geneva consultations hosted by the UN envoy, Steffan de Mistura, dampening hopes of a breakthrough. The UN announced that 36,000 newborn Syrians are now stateless in Lebanon. Inspectors in Syria found new traces of chemical weapons. Handicap International warnedthat 5 million Syrians will be at risk of explosive weapons for years to come.


What else is new?

Ahead of Wednesday’s Security Council debate on Small Arms and Light Weapons, the ICRtoP and PAX coordinated with 40 ICRtoP members and partners to write a letter urging member states to voice their “strong support for addressing the horrific civilian impact of SALW, the most commonly used weapons in armed conflicts and post-conflict situations, and for addressing their Responsibility to Protect in this regard.” Read the full letter here.

The ICRtoP, Stanley Foundation, and Asia-Pacific Centre for the Responsibility to Protect have released a report on the civil society workshop called “Ten Years Since the World Summit: Developing Civil Society’s Strategy for the Responsibility to Protect in the Asia-Pacific Region” held in Phnom Penh, Cambodia on 28 February 2015.  The workshop reflected on the best practices and challenges of the past decade; evaluated the ability of domestic, regional, and international actors to implement RtoP; and identified measures that could further operationalize the norm. Representatives of civil society from Australia, Cambodia, Thailand, Indonesia, and the Philippines, as well as those from international nongovernmental organizations, participated in the meeting.

ICRtoP’s Senior Program Officer, Megan Schmidt, was interviewed in the Canadian International Council’s feature of RtoP experts.

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Elect to Act, Why the Unrest in Burundi Cannot Be Ignored

The following is an entry in ICRtoP’s ongoing ‘RtoP at 10′ blog series. The series invites civil society and academic experts to examine critical country cases, international/regional perspectives, and thematic issues that have been influential in the development of the norm over the past 10 years, and that will have a lasting impact going forth into the next decade. Below is a piece by Sean Murphy, Research Intern with the International Coalition for the Responsibility to Protect. Applying the Framework of Analysis produced by the United Nations Office for the Prevention of Genocide and the Responsibility to Protect, Mr. Murphy reflects on the risks present in Burundi as the country prepares for a contested upcoming election.  

Mothers line up to register their children in Rwanda after fleeing their native Burundi. Photo credit: UNHCR/S. Masengesho

Mothers line up to register their children in Rwanda after fleeing their native Burundi. Photo credit: UNHCR/S. Masengesho

In under eight weeks’ time, the people of Burundi will come forward to vote in what is becoming an increasingly contested and volatile presidential election. As the vote nears, violence has erupted between protestors and police, with twelve civilians reported dead so far and thousands having fled to neighboring Rwanda and the Democratic Republic of the Congo, citing threats and intimidation by the ruling party’s youth wing, the Imbonerakure. There has also been mass detainment of those voicing disapproval with the government, and steps to silence the media seeking to report on the deteriorating situation. The recent decision by Burundi’s current president, Pierre Nkurunziza, to seek a third presidential term, which violates the country’s constitution, and run in the June elections has been the spark that has led to Burundi experiencing the most serious unrest since the end of its civil war in 2005. While atrocity crimes – genocide, war crimes, crimes against humanity and ethnic cleansing – are not presently being perpetrated in Burundi, many civil, regional, and international actors are concerned about the risk because of the highly contested nature of the elections combined with the underlying and unresolved issues that the country faces. Early reporting and the identifying of warning signs, such as those present in Burundi, is crucial to spur swift and preventive action to protect populations. Given that atrocity crimes are not spontaneous acts that erupt without warning but rather are the result of a process of planning at the hands of those most responsible, there are often windows of time to take preventive action.

The Framework of Analysis for Atrocity Crimes, published by the United Nations Off ice on Genocide Prevention and the Responsibility to Protect (OGPRtoP) in 2014, is a new tool to help identify the risk for atrocity crimes and lead to early warning and reporting. It contains 14 risk factors for atrocity crimes and within each risk factor are additional indicators relating to that specific risk factor. The risk factor helps to identify the probability of atrocity crimes overall, while the indicators assist in determining the degree to which an individual risk factor is present. These risk factors and indicators are meant to help monitors and analysts in guiding their collection and assessment of information where suspected atrocity crimes are taking place. This blog will show the use of the Framework of Analysis as a practical tool in helping with the prevention of atrocity crimes and violations by identifying some of the risks that are currently present in Burundi.

Please note that this blog does not seek to identify all current risk factors and indicators present in the country.

Framework of Analysis for Atrocity Crimes. Published by the United Nations Office on Genocide Prevention and the Responsibility to Protect.

Framework of Analysis for Atrocity Crimes. Published by the United Nations Office on Genocide Prevention and the Responsibility to Protect.

Burundi Through the Framework

Risk Factor 2: Record of serious violations of international human rights and humanitarian law

Indicator 2.2: Past acts of genocide, crimes against humanity, war crimes or their incitement

Burundi is a country that has suffered tremendous violence throughout its history, whether it be the 1972 genocide in which around 200,000 were killed at the hands of then-President Michel Micombero, who deployed his Tutsi military commanders to kill Hutus across Burundi, or the twelve-year civil war that saw about 300,000 Hutus and Tutsis killed due to violent inter-ethnic hostilities. Despite the atrocities carried out, adequate steps have not been taken to hold perpetrators accountable and assist victims.

On 4 December 2014, Burundi’s Parliament elected eleven members to a Truth and Reconciliation Commission (TRC) to look into the decades of killings it has faced since independence in 1962. The Burundian TRC has been long overdue and has faced continuous setbacks and delays. Furthermore, its establishment was boycotted by opposition politicians from the Tutsi minority who feel the TRC protects the President’s ruling party and, “ignores the element of justice contained in the Arusha Peace Accord.” While the establishment of a TRC is a positive step towards bringing justice to those responsible for the killings, there are many challenges it will have to overcome. TRCs are often criticized for their slow movement and their ability to secure pragmatic resolutions that will satisfy victims has been questioned. The TRC will have four years to establish the truth about ethnic killings from 1962-2008, identify and map mass graves, propose a reparations program, and promote reconciliation and forgiveness. This will be an extremely difficult undertaking, and with the presidential elections not far away, the threat of renewed ethnic clashes remains.

Risk Factor 1: Situations of armed conflict or other forms of instability

Indicator 1.7: Economic instability caused by scarcity of resources or disputes over their use or exploitation

The issue of limited land and resources in Burundi is a serious cause of contention. With around 10 million people packed into just 10,475 square miles and the return of refugees previously driven out by violence and conflict, the amount of land one possesses is vital to survival. Burundi also contains a very high internally displaced persons (IDPs) population, further exacerbating complex ownership issues. Most of the population relies on subsistence farming and many barely have enough to sustain themselves and their families. If the ineffective and inconsistent policy decrees from both the government and the Commission National Terres et Autres Biens (CNTB), the agency tasked with resolving land disputes, continue, it could possibly serve as another triggering factor that could lead to the outbreak of violent ethnic conflict.

Indicator 1.5: Political instability caused by disputes over power or growing nationalist, armed or radical opposition movements

Enter the Imbonerakure. The Imbonerakure is the youth wing of Nkurunziza’s current ruling party, the National Council for the Defense of Democracy—Forces for Defense of Democracy (CNDD-FDD). They have been flagged by Human Rights Watch and Amnesty International for their previous violent actions against civilians and, according to recent reports, its members have been responsible for the disappearance of family members and carried out other intimidation tactics against those associated with the political opposition.

Furthermore, Tutsis are also being targeted because of their ethnicity in what are increasing signs that tensions between Hutus and Tutsis could once again produce devastating consequences. To gain an actual account of the torment, Pelagie Nduwimana, a Burundian refugee now in Rwanda, describes her experience stating: “One day, in a bar, one of them told me that if the president gave him the signal, he will clean his rifle with the blood of Tutsi…There is a lack of food and shelter here [Rwanda], but I will never go back to Burundi. Even if we are forced to go, I prefer to struggle and to die here.”

Risk Factor 4: Motives or Incentives Indicator 4.1: Political motives, particularly those aimed at the attainment or consolidation of power.

Throughout its text, the Framework brings continued attention to the importance of early warning. Specifically under Risk Factor 4 it notes that, “From an early warning perspective, it is extremely important to be able to identify motivations, aims or drivers that could influence certain individuals or groups to resort to massive violence as a way to achieve goals, feed an ideology, or respond to real or perceived threats.” With regards to Burundi, President Nkurunziza’s political motivations to seek a third term have the potential to eradicate the decade of peace in a very short amount of time.

Electoral workers conducting voter registration for the upcoming 2015 elections in Burundi. Photo credit: MENUB

Electoral workers conducting voter registration for the upcoming 2015 elections in Burundi. Photo credit: MENUB

The Arusha Peace and Reconciliation Agreement for Burundi, from which the current constitution is based upon, stipulates a two-term limit for the presidency, meaning that seeking a third term is a violation of both the agreement and the constitution. Nkurunziza and his supporters claim he is eligible to run as he was elected by Parliament and not “by universal direct suffrage” as indicated in the Agreement. On 5 May 2015 the Burundian Constitutional Court decreed that Nkurunziza’s decision to run did not violate the constitution, which further enraged protestors. Reports claim that the judges were under heavy pressure and in some instances even received death threats from senior government officials to rule in favor of Nkurunziza. If President Nkurunziza does not step aside and allow for a free and fair election process to be carried out, Burundi could fall right back into another civil war. The Arusha Peace Agreement should be abided by so as to establish important precedents that would prevent situations like this from occurring in the future.

Risk Factor 8: Triggering Factors

Indicator 8.8: Census, elections, pivotal activities related to those processes, or measures that destabilize them.

Triggering Factors are “Events or circumstances that, even if seemingly unrelated to atrocity crimes, may seriously exacerbate existing conditions or may spark their onset.” As evidenced throughout this piece, the presidential election, set to be held on 26 June 2015, is a pivotal triggering factor that is responsible for the current volatility in Burundi. The 2015 presidential election has also produced another alarming development: the censorship of media outlets, such as radio stations and the internet. The decision by the government to shut down independent radio stations and block access to social media, according to Risk Factor 7 in the Framework, is described as an, “enabling circumstance or preparatory action.” It specifically corresponds to Indicator 7.6: “Imposition of strict control on the use of communication channels, or banning access to them.” Christian Mihr, the director of Reporters Without Borders Germany said, “President Nkurunziza is openly trying to silence media coverage of disagreeable events.” Aside from silencing political opposition and the protests, by limiting access to the internet and independent news outlets it becomes increasingly difficult for agencies monitoring the situation to report the risk or commission of atrocity crimes and easier for those carrying them out to do so. The Framework states, “Such events, actions or changes can also serve to create an environment that favors or even encourages the commission of such crimes.”

Looking Ahead

The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his recent trip to Burundi on 15 April 2015, stated: In short, Burundi cannot afford another outbreak of violence. It cannot afford it economically, politically, socially or culturally. It cannot afford it domestically or internationally…I urge the President and the ruling party, as well as opposition leaders, police and military to place the future well-being of the country as a whole before their own personal political desires. The Framework of Analysis for Atrocity Crimes is a useful tool that helps signal the warning signs but it must be put to good use behind a conscientious effort to protect civilians. Jean Claude Nkundwa, a peace activist in Bujumbura and Jonathan W. Rosen, a journalist based in Rwanda, warns the international community that it cannot afford to repeat its previous stance of negligence from two decades ago saying: Twenty-one years after the Rwandan genocide, as the United States, the United Nations and other international actors still try to come to terms with their failure to act in the face of horrific violence, they must not underestimate the severity of the crisis that once again is brewing in the region.

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RtoP Weekly: 27 April – 1 May 2015

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Political Crisis in Burundi Raises Risk of Renewed Ethnic Tensions
On 25 April 2015, Burundi’s ruling party, the National Council for the Defense of Democracy-Forces for the Defense of Peacekeeping-BurundiDemocracy (CNDD-FDD), announced that the incumbent President Pierre Nkurunziza would run for a “constitutionally-questionable” third term. The pronouncement capped weeks of tense, intermittent fighting between the CNDD-FDD’s youth wing, the Imbonerakure, and opposition parties. Concerns are mounting that the Burundian President’s long-feared decision will strike a serious if not fatal blow to the 2000 Arusha Peace and Reconciliation Agreement ending Burundi’s civil war. Indeed, protests have proliferated in the week since Nkurunziza’s announcement, and the government’s response has accordingly grown more brutal. Amnesty International reports that the government has banned independent radio channels, killed and injured protestors, obstructed access routes to Bujumbura’s city centre, and dispersed crowds with tear gas, water cannons, and live ammunition. In anticipation of the looming electoral violence, an estimated 20,000 refugees have meanwhile fled to Rwanda alone.

As International Peace Institute (IPI) notes, though the recent fighting “has not been exclusively on ethnic lines”, the threat it poses to the fragile ethnic power-sharing agreement put in place by the Arusha Agreement could “allow disputes of this nature to reemerge with more force.” Opponents of President Nkurunziza (a Hutu) and his party assert that he is trying to consolidate Hutu power. The “extreme examples of hate speech” at a pro-government rally deplored by UN High Commissioner for Human Rights, Zeid Ra’ad Al-Hussein, indeed indicate an increased risk of a revival of ethnic tension.

International Crisis Group describes how, in response to the looming crisis, High Commissioner Zeid, the Tanzanian president, and the UN Security Council recently visited Burundi, while the UN created an electoral mission (MENUB). Despite such action, International Crisis Group claims that “the reaction of Burundi’s partners—especially the guarantors of the Arusha agreement—is not commensurate with the gravity of the situation…they must urgently mobilize sufficient resources.” The AU’s 28 April decision to send a high-level AU delegation to “defuse current tension” and “identify practical measures” to resolve the crisis is welcome in this regard, and in line with the organization’s Responsibility to Protect. However, as IPI cautions, time is short, and “the next few weeks will test the strength of Burundi’s democracy and the resilience of the power-sharing agreement…in the meantime, the political tension is exacting a heavy human toll.”

For more on Burundi:

Catch up on developments in…

  • Central African Republic
  • DPRK/North Korea
  • Gaza
  • Iraq
  • Libya
  • Mali
  • Nigeria
  • South Sudan
  • Sudan/Darfur
  • Syria
  • Other

Central African Republic:
The UN Humanitarian Coordinator for CAR warned that the country is becoming “a forgotten crisis”, with the UN receiving a mere fraction of the funds necessary to address the humanitarian situation. Civil society organizations welcomed CAR’s National Transitional Council decision to adopt a law establishing a Special Criminal Court within the national justice system. The Court will investigate and prosecute perpetrators of war crimes and crimes against humanity in CAR since 2003. The UN Security Council renewed the mandate of its peacekeeping mission in CAR, “recalling that the Central African Republic authorities have the primary responsibility to protect all populations in the CAR, in particular from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Finally, a leaked UN report alleges that French peacekeeping troops in CAR sexually abused refugee children.


DPRK/North Korea:

A report by the Committee for Human Rights in North Korea accuses the regime of increasing its material support for terrorism. Foreign Policy reports that threats of accountability for the crimes against humanity documented by the UN’s Commission of Inquiry report are “creating anxiety” in North Korea.


Gaza:

The UN criticized Israel for causing 47 Palestinian deaths on its premises in the 2014 Gaza conflict. Hamas detained and beat political protestors in Gaza.


Iraq:

A series of car bombings killed at least 20 civilians in Baghdad. At least 30 Iraqi police diedduring heavy confrontations between the Iraqi security forces and ISIS in Ramadi, though Iraqi forces appear to be gaining ground in the city.


Libya

The UN Special Representative of the Secretary-General in Libya, Bernardino León, outlinedfor the Security Council his draft proposal for a political settlement among Libya’s warring parties. The draft is “anchored” in key principles, such as a clear separation of powers between the executive and legislative authorities. The UN is seeking to finalize the agreement before the start of Ramadan on 17 June. Meanwhile, ISIS militants killed two Tunisian journalists in Libya who had been kidnapped last year.


Mali:

Mali’s main Tuareg rebel group, the MNLA, announced that it would sign a peace agreement with the government next month. However, pro-government militias (Gatia and the Arab Azawad Movement) seized Menaka from Tuareg separatists from the MNLA, threatening to derail the peace process. Tuareg rebels shot at UN peacekeepers in Timbuktu during two rebel attacks.


Nigeria:

A committee set up to assess the level of destruction in locales recovered from Boko Haram found hundreds of decomposed bodies littering the streets, dry riverbeds, and houses in Borno State. The Nigerian military claimed to have rescued 200 girls and 93 women from the Shambisa forest from Boko Haram, though the Chibok girls abducted in 2014 are not among them. The next day, the military stated it had rescued an additional 150 women and girls.


South Sudan:
Médicins Sans Frontières warned of impending “perpetual displacement” of South Sudanese families in Upper Nile State.  UMMISS confirmed that heavy fighting between the government and the rebel group SPLM-IO had reached oil-rich Bentiu. The United Nations Special Representative for South Sudan, Ellen Margrethe Løj, urged for the release of the remaining child soldiers held by the Yau Yau militia.


Sudan/Darfur:

ICC fugitive Omar al-Bashir won re-election. South Darfur saw fierce fighting between the Government, the Justice and Equality Movement, and the Sudan Liberation Movement-Minni Minnawi last weekend. The AU stressed the need to investigate reports of attacks on UNAMID peacekeepers last week in South Darfur. UNAMID stated that the Sudanese government was misinforming the public by claiming that UNAMID had killed 7 civilians, declaring that the UN had responded appropriately to two attacks against them by armed men.


Syria:

The Syrian Observatory for Human Rights reported that ISIS has shot, stoned & beheaded over 2,000 off the battlefield since it declared its caliphate. The EU’s foreign policy chief said she wants Iran to play a “major but positive” role in a Syria peace process. The UN Envoy to Syria will begin meeting with parties to the conflict in May in a fresh attempt to broker an end to the war. Turkey, Saudi Arabia, and Qatar have ramped up their military and financial support to Syrian rebels, allowing the new rebel coalition “Army of Conquest” to achievesignificant advances against Assad in northwest Syria, including the overrunning of a military base. Opposition groups reported another chemical weapon attack in Idlib.


What else is new?

ICRtoP Member the Stanley Foundation released a new policy brief “Taking Stock of R2P in the Asia-Pacific”.

ICRtoP Member the Auschwitz Institute for Peace and Reconciliation is holding an event to launch its 2014 Annual Report of the Latin American Network for Genocide and Mass Atrocity Prevention on 4 May. For details and to RSVP, click here.

ICRtoP Member the Montreal Institute for Genocide and Human Rights Studies is holding its 3rd annual professional training program on the prevention of mass atrocity crimes in June. For details, click here.

The U.S. Under Secretary General for Civilian Security, Democracy, and Human Rights gave a speech called “Making Progress: U.S. Prevention of Mass Atrocities.” Read or watch the speech here.

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RtoP Weekly: 20 April – 24 April 2015

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RtoP Weekly will be a new release from the ICRtoP each week to provide its members, partners, and the public with regular updates on RtoP-related developments. 

Perspectives on RtoP’s Applicability to Atrocities Committed by the Islamic State and Possible Avenues for Accountability

Isn’t it too late to protect populations from the Islamic State (IS)? Aren’t the problems presented by the Islamic State primarily ones of counter-terrorism, not the Responsibility to Protect (RtoP, R2P)? A new article in Open Canada by Alex Bellamy argues no to both questions: despite the fact that much more could have been done to prevent the birth and expansion of the brutal terrorist group (and the wider Syrian civil war and turmoil in Iraq), such failures of prevention “must not be allowed to excuse inaction in the face of atrocity crimes.” Furthermore, those who advocate for a narrow counter-terrorism approach ignore the inescapable fact that “terrorism–understood as violence intentionally targeted against civilians–is itself often a crime against humanity.” In several instances–such as with IS, al-Shabaab and Boko Haram–RtoP and counter-terrorism are simply different ways of looking at the same problem, and Bellamy pleads for more understanding of the relationship between the two agendas. He further advocates for a formal declaration by the UN General Assembly or Security Council outlining the clear demands that RtoP places on non-state actors, as well as a redoubled effort by the international community to protect Syrians and Iraqis from “ISIS’s reign of terror.”

One possible avenue to protect populations from IS is to refer the group to the International Criminal Court (ICC). In this regard, the Coalition for the ICC this week examined four possible ways of achieving accountability for IS’s barbaric crimes: 1) the ICC prosecutor could exercise personal jurisdiction over nationals of ICC member states; 2) Iraq and Syria could join the ICC or give it temporary jurisdiction; 3) The UN Security Council could refer the situation to the ICC; or 4) Governments could carry out national prosecutions. Learn about the likelihood of each and add your thoughts about the best way to achieve justice for IS victims here.


Catch up on developments in…

Burma/Myanmar:

In an open letter to the heads of state of the Association of Southeast Asian Nations (ASEAN) on the eve of the organization’s 26th summit, ASEAN Parliamentarians for Human Rights (APHR) called for greater recognition of the grave threat the persecution of the Rohingya minority poses to Myanmar and the entire ASEAN region. APHR further demanded an independent investigation into the crisis and the deployment of ASEAN monitors before the 2015 elections. As Charles Santiago, a member of the Malaysian Parliament, underscored “The growing risk of atrocity crimes in Myanmar…undermines our shared commitment to protecting all people from persecution and violence.”
ICRtoP Member Asia-Pacific Centre for the Responsibility to Protect also released a statement highlighting that the prevention of electoral violence is “part of the Myanmar government’s primary responsibility to protect from communal violence leading to atrocity crimes”, and provided several recommendations in this regard.

Central African Republic:

ICRtoP Member Human Rights Watch reported that anti-Balaka fighters are holding captive 42 Muslim Peuhl herders, most of whom are women and girls, noting that such “shocking tactics” amount to war crimes and calling on UN peacekeepers and the government to act immediately to free them. Meanwhile, the CAR transitional authorities postponed a planned peace forum.

Libya

The Islamic State claimed responsibility for a massacre of Ethiopian Christians on a beach purportedly in Libya. The Red Crescent said that the crisis in Libya has displaced 500,000 since May 2014. Fajr Libya, a coalition of militias controlling Tripoli, launched airstrikes against the Islamic State in Sirte.

Mali:

International mediators set a May 15 deadline for the UN’s proposed peace deal in a bid to increase pressure on Tuareg separatists to sign. Tuaregs are demanding further autonomy for the “Azawad” region. Algeria has threatened to cease its cooperation with the Tuaregs if they continue to refuse the deal. MINUSMA meanwhile suffered its third deadly assault on its peacekeepers this week when militants attacked a UN convoy.

Nigeria:

UN Secretary-General Ban Ki-Moon released a statement expressing his hope that the new Buhari presidency would “promote a return to normalcy”. The Nigerian military invaded the Sambisa forest in a bid to find the Chibok girls abducted by Boko Haram in 2014, reporting that the operation has cut off the terrorist group’s arms supply.

South Sudan:

President Kiir unveiled a new road map to peace at the opening of the national assembly, while urging for a law to “better regulate” humanitarian NGOs. Three World Food Programme workers disappeared in Upper Nile State, causing the UN agency to suspend some operations.

Sudan/Darfur:

Sudanese president Omar al-Bashir, wanted by the ICC, cancelled his trip to Indonesia to attend a meeting of the Non-Aligned Movement, reportedly after several countries refused permission for his plane to fly over their airspace. Human Rights Watch’s Elise Keppler stated that the change of plans “reinforced al-Bashir’s status as a fugitive from international justice with limited travel options.”

ICRtoP Member International Refugee Rights Initiative released a new report “We Just Want a Rest From War: Civilian Perspectives on the Conflict in Sudan’s Southern Kordofan State.”

Syria/Iraq:

A Syrian analyst warned that recent rebel victories have not weakened Assad as much as it appears, noting that a military stalemate benefits Assad more than it does his opponents. Russia announced that it was supplying arms to Iraq and Syria to help them fight the Islamic State. A Washington Post op-ed describes how the U.S. has abandoned its atrocities prevention doctrine and defended its inaction in Syria.

What else is new?

ICRtoP is pleased to welcome three new members to the Coalition: International Justice Project (New Jersey, USA), which works to promote human rights through the rule of law and to provide support to victims of atrocities; Rural Women’s Network Nepal (Sindhuli, Nepal), which promotes the rights of rural women, youth, and children; and Society for Threatened Peoples (Gottingen, Germany), which campaigns on the behalf of threatened and persecuted ethnic and religious minorities, nationalities, and indigenous peoples.

ICRtoP member UNA-UK released a new guide to RtoP, introducing the norm, describing the UK’s actions to prevent atrocities, and letting you know what you can do to promote RtoP.

ICRtoP member the Global Centre for the Responsibility to Protect released a statement commemorating the 100th anniversary of the Armenian genocide.

Child Soldiers Initiative released a new Working Paper “Understanding the Recruitment of Child Soldiers as an Early Warning Indicator.”

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#R2P10: What Can Your Organization Do To Advance the Responsibility to Protect in 2015?

As part of the #R2P10 blog series, ICRtoP has prepared an infographic detailing ways that civil society organizations interested in advancing the Responsibility to Protect can use the 10th anniversary of its adoption as an opportunity to mobilize support at the national, regional, and international levels to strengthen approaches for the prevention and response to mass atrocities. Read on below! (click the image for an enlarged view).

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RtoP at 10 What do you think of our advocacy points? Have anything to add? What is your organization doing to mark the 10th anniversary of the Responsibility to Protect? Let us know by commenting below, or reaching out to us on Twitter  and Facebook. Also, be sure to check out our updated ‘Civil Society and RtoP’ educational tool  for suggestions on how CSOs can directly contribute to upholding protection obligations. 

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#R2P10: Reflections on the Responsibility to Protect at 10, Part 3: Unfinished Operational Work

The following is the third and final installment of Dr. Alex Bellamy’s introduction to the new RtoP at 10 Blog Series. While parts one and two focused on the conceptual and institutional issues facing the norm, the final addition posits that in the next decade, RtoP will be judged first and foremost on how it is operationalized. Read on for analysis regarding the primary challenges that will need to be overcome for effective RtoP implementation on the ground. 

 

Unfinished Operational Work

In its first decade, the progress of RtoP was judged mainly on its normative and institutional development. In its second decade RtoP will be judged on the difference it makes to people’s lives.

There are a number of reasons why this is a much more difficult challenge, among them the political complications that arise when states disagree about their priorities and the nature of the crises they confront. These challenges are compounded by the often quite limited influence that outsiders have on the conflicts that give rise to genocide and mass atrocities. Although concerted international action can sometimes prevent mass atrocities, the so-called “structural” or “root” causes of genocide and mass atrocities are often deeply ingrained in societies, economies and national institutions.  Whilst outsiders can play important enabling and facilitative roles, foreign assistance cannot by itself achieve structural change except through massive interventions that are rarely contemplated. Well-targeted programs can sometimes support local sources of resilience but cannot manufacture it out of thin air. At the later stages of a crisis, international actors can use punishments and incentives to persuade armed actors to refrain from committing atrocities, deploy peacekeepers to provide physical protection, provide humanitarian assistance and negotiate respites in the violence. These efforts can reduce violence and protect sections of the community but they will always struggle to provide comprehensive protection.

UNMISS peacekeepers guarding the Tomping protection of civilians site in South Sudan. UN Photo/Eskinder Debebe.

UNMISS peacekeepers guarding the Tomping protection of civilians site in South Sudan. UN Photo/Eskinder Debebe.

The problem is compounded by the fact that global demand for protection is already coming close to exceeding the global supply of relevant resources. With more missions, deployed with more peacekeepers, with more complex mandates, in more difficult environments, UN peacekeeping is already stretched to the limit. And with the developed world still recovering from the Global Financial Crisis there is little appetite for spending added money on saving populations overseas. After all, in an age of austerity governments have to make tough choices about their priorities – funding protection efforts overseas necessarily means that states have fewer resources with which to fund their domestic priorities.

When we think about the operational challenges associated with implementing RtoP, we should therefore be modest about what we expect the international community to achieve and the timeframes for achieving it. Some situations do not lend themselves to simple solutions or easily achievable remedies – they are simply too complex and too difficult. That does not mean that the international community should not do everything it can to protect vulnerable populations only that we should recognize that even with the best of intentions it will sometimes come up short because there is often no solution that suits everybody, equally.

How, then, do we start to close some of the most pronounced operational gaps? Three challenges in particular are worth highlighting.

 

Major Operational Challenges

First, the need to prioritize protection. Whatever else may be going on in a particular situation, when genocide, war crimes, ethnic cleansing or crimes against humanity are perpetrated or imminently apprehended, the overriding objective of the UN and its partners must be to protect populations from these crimes as far as it is possible to do. RtoP is not a “‘tool” to be employed to achieve other ends, but a master principle to which the energies of the UN, its Member States, other international and regional organizations, and individuals should be directed. The operational gaps will be filled only when RtoP is seen as fundamental to the way the UN and its partners do business.

In practice, this means that debates about how to respond to individual crises should focus squarely on what is needed to best protect the civilian population in harm’s way and that—as a matter of principle—protection needs should never be sacrificed to achieve other goals. This does not mean states should act without heed for the wider consequences. Nor does it remove the need to make difficult choices. In situations like Mali or Syria, for instance, where comprehensive protection cannot be provided without first ending a civil war, the prioritization of protection might dictate a strategy focused on ending the violence no matter what the cost to justice further down the road.

Free_Syrian_Army_soldier_walking_among_rubble_in_Aleppo

Free Syrian Army soldier walking among rubble in Aleppo. Voice of America News/Scott Bobb.

Prioritizing protection involves understanding when atrocities are likely and having the capacity to assess situations from an atrocity prevention perspective and devise strategies that can be resourced and implemented.  Although there is no sure way of guaranteeing adequate resources, governments tend to be more willing to support options backed by clear plans.  Developing a comprehensive strategy for prevention and promoting the mainstreaming of RtoP across the UN and its partners are two ways in which the institutional development of RtoP could support its operational development.

Among the more important practical challenges is overcoming the tendency to see RtoP as disconnected from associated programs of work in areas such as conflict prevention, peacebuilding, the protection of civilians, international criminal justice, and the protection and empowerment of women and girls. Thus far, practitioners and analysts have tended to treat these agendas as “solitudes” within the UN system because of their differences, rather than recognizing their overlapping issues and mutual interdependence. This has limited the international community’s ability to develop comprehensive responses to genocide and mass atrocities.

Second, we need to ensure that the international community delivers on the protection mandates it already has. This calls for the matching of means to ends. If our priority is to protect populations from genocide and mass atrocities it follows that the policies and strategies adopted should be aimed at achieving the greatest protection for the greatest number of people possible in the affected area and as quickly as possible. For instance, if the principal source of threat is a civil war, then means should be directed at ending it; and if the principal source is a particular armed group, then the means should focus on impeding its ability to commit mass atrocities or on persuading it to cease and desist; if perpetrators cannot be persuaded, deterred or neutralized, then the means should focus on facilitating the escape of potential victims or their in situ protection.

This involves something of a change in mindset and a commitment to the careful assessment of situations prior to the articulation of policy options. To close the operational gap, we need to make better use of the resources already provided by the international community through a more targeted approach. This involves understanding the nature of each protection problem and the most effective and feasible way of supporting as much protection as possible. Matching means to ends simply means understanding the causes of civilian suffering in each individual case, tailoring appropriate responses to address those issues, and ensuring that once adopted policies are properly resourced. This latter point involves more than just the level of material resources provided. It also involves building the expertise needed to conduct peacekeeping and other types of activities in ways that maximize their capacity to protect populations through doctrine, training, operational guidance, planning and the conducting of operations themselves. It also involves joined up thinking and policy responses across the UN system and its partners, in order to ensure that responses are comprehensive.

Third, we need to manage the controversies arising from the use of force and other means of coercion. The use of coercive measures remains deeply controversial. This, of course, is not unique to RtoP. Nor, by itself, is it undesirable. Coercion and force should be controversial. A key challenge is to improve the legitimacy and effectiveness of the Security Council’s performance. On this question, RtoP finds itself wedged between two positions. One, arising from Libya, holds that the Security Council and states acting on its mandates need to be held more accountable for their actions. The implementation of Resolution 1973 by NATO and its partners drew sharp criticism from states complaining that the Alliance overstepped its mandate. It is not surprising that as the Council becomes more proactive in its pursuit of RtoP, demands for political accountability are becoming more significant. Future agreement about the use of force to protect populations from genocide and mass atrocities will likely depend upon concomitant steps to address accountability questions such as those raised by the “Responsibility while Protecting” concept advanced by Brazil.

The United Nations Security Council approves Resolution 1973 authorizing a No-Fly Zone in Libya. UN Photo/Paulo Filgueiras.

The United Nations Security Council passes Resolution 1973 authorizing a No-Fly Zone in Libya. UN Photo/Paulo Filgueiras.

The other critical issue for the Security Council, arising from Syria, stems from calls for more decisiveness and demands for the restraining of the veto in situations where genocide and mass atrocities are perpetrated. It is not surprising that after four vetoes blocked action on Syria, demands for veto restraint have gained traction with some 60 states supporting French calls for an informal “code of conduct” or “statement of principles” aimed at limiting the veto’s use. But at least three of the permanent five members (China, Russia, United States) remain skeptical, meaning that the proposal is unlikely to be adopted any time soon though the dialogue surrounding it may well help to lift the political cost associated with exercising the veto when timely and decisive responses to genocide and mass atrocities are warranted.

Finding a balance between these twin imperatives – to do more to protect whilst ensuring better accountability – will be among the key challenges for the Security Council in the coming decade. For RtoP, much will hinge on the extent to which the Council succeeds.

 

Concerted Action Needed to Protect the World’s Most Vulnerable

In its first ten years, RtoP has emerged as an international norm. With only a tiny handful of exceptions, states accept RtoP and agree on its main components. The principle’s normative development has progressed apace and its institutional development is gathering pace, with the UN, regional organizations and dozens of states taking concrete steps to implement it.

If the first ten years of RtoP was primarily about this normative development, the next ten will be about its implementation and making a real difference to people’s lives. This will require concerted action to complete the unfinished conceptual, institutional and operational work of building a world less tolerant of conscience shocking inhumanity and more likely to protect the most vulnerable. That is our challenge for the decade to come.

ICRtoP thanks Dr. Alex Bellamy for his excellent contributions. If you have yet to read parts one and two of  the #R2P10 introduction, do so here and here. Be sure to stay tuned for more expert insight featured on the #R2P10 Blog Series. 

 

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#R2P10: Reflections on the Responsibility to Protect at 10, Part 2: Unfinished Institutional Work

The following is the second part of Dr. Alex Bellamy’s introduction to the new RtoP at 10 blog series. Part 1 provided a general overview of RtoP 10 years since its adoption at the World Summit, as well as an in -depth analysis of the conceptual issues still facing the norm. Part 2 takes a look at  RtoP’s institutionalization at the UN , regional organizations, and the state level. Continue reading for more information on this important aspect of RtoP’s normative journey.

 

Unfinished Institutional Work at the United Nations

After a somewhat laconic start, the institutional development of RtoP gathered pace after the UN Secretary-General’s first report on the subject, outlining his plan for implementation in 2009. Within the UN, there is now a Special Adviser to the Secretary-General on RtoP and a “joint office” covering RtoP and genocide prevention. The Secretary-General has issued six thematic reports on different aspects of the principle’s implementation and these have been debated by the General Assembly through a series of “informal and interactive dialogues”, in which around 150 states have participated (see all thematic reports here). The mainstreaming of RtoP through the UN system is being gradually achieved through initiatives such as the Secretary-General’s “Human Rights Up Front” Action Plan, which aims to place human rights protection at the center of the organization’s work, the proliferation of peacekeeping missions mandated to protect civilians in regions afflicted by atrocities, and the instigation of “due diligence” policies, which aim to limit cooperation between the UN and those accused of atrocity crimes or other violations.

General Assembly: Informal interactive dialogue on the report of the Secretary-General on the responsibility to protect

Secretary-General Ban Ki-moon delivers his remarks at the Informal Interactive Dialogue on RtoP in September, 2014. UN Photo/Devra Berkowitz.

Much of this institutional progress was achieved by the personal commitment of UN Secretary-General Ban Ki-moon and the astute work of his Special Advisers, Edward Luck and Jennifer Welsh. An important priority for the next decade is to create a more secure institutional home for RtoP within the UN system. This is especially important now because the senior leadership of both the UN and the US will change in the next 18 months.

In the immediate term, the UN General Assembly could place RtoP on a surer institutional footing by placing the principle’s implementation onto its formal agenda, recognizing the Secretary-General’s work on advancing a strategy for RtoP, and supporting the UN’s joint office on genocide prevention and RtoP.  Coming 10 years after the Assembly’s commitment to RtoP, these relatively modest steps, which could be achieved in a General Assembly resolution, would reaffirm its commitment, help the Assembly “catch-up” with the UN Security Council (which has proceeded apace with implementing RtoP), send a strong signal of intent to candidates for the position of UN Secretary-General, and afford the General Assembly a more direct role in reviewing and overseeing the principle’s implementation. In the longer term, a General Assembly resolution would be catalytic for further implementation by deepening the engagement of Member States, raising the stakes of their annual consideration of the principle, and opening opportunities for deliberation about the practical measures needed to make the protection of populations from genocide, war crimes, ethnic cleansing and crimes against humanity a “lived reality” and agreement on tangible policies and steps.

There is also more work to be done to “mainstream” RtoP across the UN system. Although the Secretary-General specifically called for “mainstreaming” in his 2009 report, thus far the organization has stopped short of developing explicit policies or strategies to achieve this goal, preferring instead the gradual dissemination of RtoP principles through allied projects such as “Human Rights Up Front”, partnerships between the joint office and other UN departments and organizations, and the provision of advice by the special advisers to the UN’s senior leadership. All this has helped improve the UN Secretariat’s capacity to detect the early signs of atrocity crime risk and develop appropriate responses, utilizing its capacities for fact-finding, public messaging, diplomacy, human rights promotion, and humanitarian assistance that do not require case-by-case approval by its political organs.

The Secretariat’s response to the unfolding crisis in the CAR provides a case in point inasmuch as the risk of atrocity crimes was identified and communicated early, though there were still concerns that appropriate humanitarian, political and military responses were slow to materialize. Other times, atrocity prevention concerns have struggled to find the prominence they deserve when atrocities are imminent. It is still not uncommon for these concerns to be overridden by political imperatives or other priorities such as humanitarian access.

An additional problem is that, whilst its links to human rights, preventive diplomacy, and refugee protection, are quite well understood within the UN system, the institutional relationship between RtoP and other key UN agendas such as peacebuilding, women, peace and security, the protection of civilians, the rule of law, and economic development, remains underdeveloped. For example, whilst widespread and systematic sexual and gender based violence constitutes a crime against humanity, functional cooperation between the UN’s Special Adviser on RtoP and Special Representative on the Prevention of Sexual Violence remains limited and ad hoc. Likewise, although there is a clear empirical connection between the risk of future atrocities and a recent history of past atrocities, there is only a modest degree of functional cooperation between the UN’s RtoP officials and those that work on peacebuilding. As such, whilst significant improvements have been made, the UN system is still not doing all that it could to use its

Moroccan peacekeepers patrol Bambari, CAR. UN Photo/Catianne Tijerina.

Moroccan peacekeepers patrol Bambari, CAR. UN Photo/Catianne Tijerina.

existing capital to advance the goals of RtoP.

One way of addressing these challenges would be to augment the organic processes already under way within the UN system with clear guidance from the Secretary-General detailing a comprehensive strategy for the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity and instructing the UN system on how to mainstream RtoP. The Secretary-General could also usefully set benchmarks for implementation and review progress.

 

Unfinished Institutional Work at the Regional Level

Although it is natural to focus on the UN, since it provided the context for the international community’s commitment to RtoP in 2005, it is important that we avoid an entirely UN-centric view of how the principle should be implemented. Practically speaking, the international community is at its most effective when different actors, such as the UN, regional organizations, neighboring states, and prominent individuals, support each other. The UN cannot solve all the world’s problems by itself, and was not established to do so.

Outside the UN, the institutionalization of RtoP has been patchier, perhaps befitting the significant differences between regions. The African Union has developed an impressive range of institutions and mechanisms designed to facilitate decisive responses to emerging protection crises. Guided by Article 4(h) of its Constitutive Act, which affords the Union a right to interfere in its members’ affairs in the event of a genocide or other mass atrocities, the African Union has developed a Peace and Security Council, a Continental Early Warning System, a capacity for peacemaking and mediation, and capacities for peacekeeping with the aspiration of establishing a standing peacekeeping force in the future.  Africa’s challenge is not one of building the institutions needed to deliver on RtoP, but of ensuring that the institutions it has are capable of fulfilling their promise.

Elsewhere, Latin America has developed a strong track record when it comes to the regional promotion of human rights and has also established a network of governments committed to strengthening their capacity to prevent genocide. Things are more nascent in East Asia, but there are signs here too that governments and regional organizations are beginning to think about how to achieve RtoP’s goals in their own neighborhood. The challenge in Europe is somewhat different: whilst individual states are keen advocates of RtoP, the region’s highly developed institutions have not as yet advanced their own strategies for implementing the principle, preferring instead to support protection goals and atrocity prevention through existing programming.

With so much variation, there can be no “one size fits all” way of thinking about the role played by regional arrangements in institutionalizing RtoP. Indeed, it is the very fact that they are grounded in the values, norms and interests of the regions they inhabit that make regional organizations so significant. In the coming decade, we should pay more attention to the ways in which regional organizations can support the goals of RtoP, mindful of the different entry-points they provide. We should also pay attention to deepening the partnership between regions and the UN, by building the “anticipatory relationships” and habits of cooperation that are so often needed to prevent, or respond effectively to, genocide and mass atrocities.

 

Unfinished Institutional Work at the State Level

Ultimately, of course, the basic building block for institutionalization is the individual state. There are a number of measures that

The third annual global focal points meeting in Accra, Ghana, convened by the Global Centre for the Responsibility to Protect, which acts as the network Secretariat. Photo courtesy of GCR2P.

The third annual global focal points meeting in Accra, Ghana, convened by the Global Centre for the Responsibility to Protect (GCR2P). The Global Centre acts as a Secretariat for the network. Photo courtesy of GCR2P.

states can take to better deliver on the commitment they made in 2005.  These include the designation of a responsibility to protect focal point. These focal points can help to coordinate national efforts to mainstream and operationalize the responsibility to protect concept, which can spur the establishment of national atrocity prevention action plans tailored to the national context. Some 43 states from every region of the world have already taken this step, with several states such as Ghana and Tanzania establishing their own “National Peace Councils” to support atrocity prevention at home.

As with any national initiative, each state has approached this function from its own perspective and many different models have been developed in different countries. Focal points participate in a global network, which advances dialogue and cooperation on the full range of issues relating RtoP. The principal tasks of the national focal point are to coordinate national efforts to protect populations from genocide and mass atrocities and lead national engagement in regional and global dialogue. One key task for the next decade of RtoP is to broaden the membership of the Focal Points network and deepen their involvement in the practical work of atrocities prevention and response.

But focal points are only one manifestation of a state’s commitment to implementing RtoP. Equally important is the need to forge national constituencies of governments, officials, parliamentarians, civil society groups and individuals who work together, using their own unique skills, to develop authentic national approaches to fulfilling RtoP. Many counties, including Ghana and Kenya in Africa and Indonesia and The Philippines in Southeast Asia have already begun to build their own national constituencies for RtoP.

This brings us to the most glaring piece of unfinished work – the challenge of delivering on the ground.

Check back tomorrow for ‘Part 3: Unfinished Operational Work’ to get Dr. Bellamy’s take on pressing issues regarding the operationalization of the norm for the prevention, and if necessary, halting of ongoing atrocity crimes. If you missed Part 1 of the introduction, be sure to read it here.

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#R2P10: Reflections on the Responsibility to Protect at 10, Part 1: A Norm for Our Times

The following is the first entry in ICRtoP’s new ongoing ‘RtoP at 10’ blog series. The series invites civil society and academic experts to examine critical country cases, international/regional perspectives, and thematic issues that have been influential in the development of the norm over the past 10 years, and that will have a lasting impact going forth into the next decade.

Below is the first of a three part introduction  courtesy of Dr. Alex Bellamy, Executive Director of the Asia Pacific Center for the Responsibility to Protect. In part one, Dr. Bellamy provides an overview of RtoP’s normative development before delving into the “Unfinished Conceptual Work” that remains. Read on to learn more.

 

A Norm for Our Times

Few ideas have travelled further, faster, than the Responsibility to Protect (RtoP). In the ten years since its adoption by world leaders at the 2005 World Summit, RtoP has become a central part of the way we think about, and respond to, genocide, war crimes, ethnic cleansing and crimes against humanity. Whatever one thinks of its merits, it cannot be said that RtoP has failed to make itself relevant.

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Rwandans fleeing the genocide to neighboring Tanzania in 1994. UNHCR Photo.

RtoP has progressed farthest in its normative development. In its first ten years, the principle has established itself as a political norm. Today, we expect that states will protect their populations from the four atrocity crimes and are critical of them when they fail. Equally, we expect that the international community will do whatever it can to protect people from atrocities when their own state manifestly fails to do so.It was not always thus.

In the 1990s, the UN created a “Protection Force” for Bosnia that was not mandated to protect civilians and drew down its forces from Rwanda when genocide struck; in the 1980s, the international community was absent entirely when the Guatemalan government unleashed genocide on the Mayans; and in the 1970s, the international community sanctioned Vietnam for ending the Khmer Rouge genocide in Cambodia that had claimed the lives of a quarter of that country’s population.

Today we expect better. More than two-thirds of the UN’s Member States voted to “deplore” the UN Security Council’s failure to protect Syrians from the tidal wave of abuse and mass killing that has afflicted their country since 2011. RtoP has appeared in more than thirty UN Security Council resolutions, in resolutions of the General Assembly’s third and fifth committees as well as its plenary sessions, in a series of informal Assembly dialogues and in Human Rights Council resolutions (see them all here). Over the course of these debates, conceptual uncertainty and determined opposition to RtoP have been gradually whittled away, replaced by a now broadly held understanding of what RtoP is that commands the support of a significant majority of states from every corner of the world.

That RtoP has largely won the battle of ideas about whether the community of states should protect populations from atrocity crimes, and the most appropriate framework for doing so is evident not just in the avalanche of resolutions and government statements, but in practice too. The international community is foregrounding the protection of populations like never before. In addition to referring to RtoP in the context of comprehensive resolutions addressing protection crises in countries such as Libya, Cote d’Ivoire, Darfur and Yemen and resolutions condemning atrocities and reminding actors of their responsibilities, as in the case of Syria, the UN Security Council has begun to specifically task its operations with the job of helping states to protect populations in countries such as South Sudan, Mali and the Central African Republic. Sometimes, as in efforts to prevent the escalation of violence in Kenya and Guinea, or to prevent its recurrence as in Kyrgyzstan, RtoP has proven to be one of the major catalysts for international action.

Basics of RtoP (3)

What is the Responsibility to Protect? Click the infographic for a full view.

The principle also played a central role in elevating international attention to the chronic protection crisis in North Korea, to the point where, for the first time, the UN’s General Assembly, Human Rights Council and Security Council are all now seized of the issue. Shining a light on the crimes committed by that government and its agents has not only prompted that government to make some concessions, it has also made it more difficult for others to support it. There are unverified reports that late last year China handed a small group of North Korean refugees not back to Pyongyang, as has been its policy, but to the authorities in South Korea. If true, that would be a significant change of heart. Such progress on the human rights situation in the North Korea was unthinkable just a short time ago.

Together, these developments have made states more aware of their protection responsibilities. They have also made it less likely that perpetrators will “get away” with committing genocide and other atrocity crimes and more likely that the international community will take measures to protect vulnerable populations.

But having established itself as an international norm, RtoP now faces the challenge of making more of a difference to people’s lives, more of the time. As a practical doctrine, RtoP will be judged not on its ability to inspire warm words and comfortable resolutions but on the extent to which it helps bring real improvements for vulnerable populations. It already has been associated with a more resolute international attitude towards mass atrocity crimes. For example, the international community has not recoiled from Mali and the CAR, despite deliberate attacks on peacekeepers there, and in late 2012 the UN decided to open its gates and protect imperiled civilians in South Sudan.

At the same time, the dramatic rise of internal displacement, the Security Council’s failure to respond decisively to the tragedies in Syria and Sri Lanka, the international community’s inability to hold Libya together, and ongoing crises in South Sudan, Darfur, and the DRC that daily threaten the civilian population, remind us that there is no room for complacency. We need to redouble our efforts to implement what states agreed in 2005.  To do that, in the coming decade we will need to address the unfinished conceptual, institutional and operational work of building RtoP.

 

Unfinished Conceptual Work

Experience in the first ten years has revealed the need for the further conceptual development of RtoP. First, and perhaps most importantly, there is the question of non-state armed groups. As agreed in 2005, RtoP is a state-based principle, yet it has become painfully clear that in many parts of the world the principle threat to civilian populations comes not from states but from non-state armed groups such as the “Islamic State”, Boko Haram, the Lord’s Resistance Army and al-Shabaab.  The picture is further complicated by the fact that non-state armed groups can also sometimes play significant roles as protectors of civilian populations, as the Kurds’ stoic defense of Kobane recently demonstrated.  Not only do we need to further clarify the relationship between RtoP and non-state armed groups, we should also elucidate carefully the operational relationship between atrocity prevention and doctrines associated with counter-terrorism and counter-insurgency.

Isis fighters, pictured on a militant website verified by AP.

Islamic State fighters pictured on a militant website verified by AP. AP File.

This brings us to a related set of questions posed by extremely violent societies where the boundaries between “normal” or “everyday” violence and atrocity crimes are blurred. In these contexts, which include societies where violence linked to organized crime is so common that rates of violent death exceed those recorded in countries experiencing civil war and those where sexual and gender based violence is so endemic as to stretch our capacity to record it, the multiplication of individual crimes amount to patterns of violence not dissimilar to crimes against humanity. The relationship between RtoP and endemic violence needs to be carefully examined but there seems to be a prima facie case for thinking that, at the very least, efforts to reduce endemic violence ought to be considered part of RtoP’s agenda for prevention.

A third set of outstanding conceptual questions relate to the individual responsibility to protect. Thus far, RtoP’s common currency has been the collective: the state’s responsibility to protect; the international community’s duty to assist and take timely and decisive action when needed. Yet these collectivities are comprised of individuals and the courses of action they follow are determined by individual choices. Atrocities occur because military and political leaders choose to authorize them and armed individuals choose to commit them. Sometimes they might choose not to. The international community responds effectively to these crimes because officials choose to highlight them and political leaders choose to invest material and political capital in prevention and response. Equally, of course, they may choose not to. By their actions, countless bystanders can make it easier or more difficult for targeted individuals to survive.

Ultimately, like all social norms, whether RtoP becomes a daily “lived reality” depends on whether individuals in all parts of the world choose to make it so. In the face of genocide and mass atrocities, everyone – and not just those in the affected areas – has a choice to make about whether to employ their talents to help protect others, whether to stand aside in ambivalence, or whether to assist the perpetrators.  RtoP establishes a moral imperative for individuals to do what they can to protect others from atrocities. We need to better understand individual decision-making, the varied contributions that individuals can make, and the factors that push them in these different directions. Civil society should figure large in this work.

 

Be sure to check out Dr. Bellamy’s Reflections on RtoP at 10,  Part 2: Unfinished Institutional Work for insight on RtoP’s formalization into international and regional mechanisms for atrocity prevention. 

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Filed under CivSoc, Guest Post, ICRtoP Members, RtoP, UN

Darfur ICC Referral Turns 10: Reflections on the Troubled Path to Accountability

March 31st, 2015 marks ten years since the United Nations Security Council passed Resolution 1593 referring the situation in Darfur to the International Criminal Court. Ten years later, little progress has been made in the pursuit of peace and justice. The Sudanese leadership, including President Omar al-Bashir who was indicted for genocide and crimes against humanity, has yet to be brought before the Court. Worryingly, many commentators are warning of a new threat of genocide as the government carries out a brutal “scorched-earth” counter-insurgency campaign against rebel groups.

ICRtoP Blog and Social Media Coordinator Matthew Redding had the privilege of speaking to our partners at the International Justice Project (IJP) to discuss the ICC referral and the challenges and opportunities associated with its implementation. Read on to learn how these impact efforts to ensure accountability for atrocities committed in Darfur, and in turn, to uphold the Responsibility to Protect Darfuris from future violence.

 

To begin with, let’s start with a brief overview of what the IJP believes are the main obstacles that have prevented the International Criminal Court (ICC) from bringing those indicted for atrocity crimes to justice after Resolution 1593 first referred the situation in Darfur to the Court in 2005?

 

Those who believe that a huge step forward was taken with the ratification of the Rome Statute are correct. As of now, 123 nations have committed themselves to supporting a permanent court with its own jurisprudence and an independent existence. However, the ratification of the treaty and its coming into force and effect as of 2002, did not end the struggle for international justice. Among other things, there will perhaps always be a tension between sovereignty and the status of sitting heads of states on the one hand, and the reach of international justice on the other.

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Omar al-Bashir at the 12th African Union Summit. US Navy Photo/Mass Communication Specialist 2nd Class Jesse B. Awalt/Released.

This is evidenced by the fact that the two most controversial cases at the Court – charges against the president of Kenya and those against the president of Sudan – have been mired in controversy, and at this point must be regarded as unsuccessful proceedings.

In that context, it shouldn’t be a surprise to anyone that there has been significant political, ideological, and diplomatic opposition, couched in jurisprudential terms, to the prosecution of Omar al-Bashir for genocide.

Additionally, whether it is a matter of the will of states or fiscal conservatism, the two referrals from the UN Security Council, including Darfur, have not been accompanied by financial support for their prosecution. Indeed, the Court has had to weather years of “zero budget growth” that produces general inadequacies in staffing and funding for the prosecution, defense function and victim participation. So on the whole, some of the obstacles to preventing the Bashir case are precisely those kinds of rough waters one should have expected the Court to encounter, while others are particular to the Darfur situation and Bashir case. Some member states of the Arab League and the African Union in particular have placed other interests ahead of the challenge of combating genocide.

Any observer who believes the mere existence of the Court and treaty are sufficient in and of themselves to guarantee justice is prizing hope over experience.

 

There are those who suggest that the backlash against the ICC referral, for example, Omar al Bashir’s decision to expel humanitarian organizations for their alleged cooperation with the Court, means that in some instances justice should be deferred for the sake of peace and stability. Others have suggested that Bashir has succeeded in politicizing the investigation in a manner that has only allowed him to tighten his grip on power. What does IJP have to say about these claims, and the overall relationship between justice and conflict resolution?

 

The peace or justice debate relies on a false premise. That premise is that peace and justice are somehow mutually exclusive and that either can be obtained at the expense of the other. It is difficult to conceive, for example, after years of interaction with the Darfurian diaspora and with Sudanese and other sympathizers, that there will ever be peace in Darfur without some true accounting for the genocide that transpired. On the other hand, timing can often be crucial.

It is widely accepted that the timing of the ICC investigation and warrants against Joseph Kony did interfere with a legitimate peace process. This criticism has been frequently articulated by friends of the Court in Uganda. However, few of them would argue that there was never going to be an appropriate time to bring warlords like Kony to account under the statute. Returning to Darfur, the attempt for an Article 16 deferral in 2008 on the grounds of a sincere peace initiative in Sudan was a ruse, and ultimately seen as one by the international community. The countless efforts “at peace” – and the consistent failures – have nothing to do with any attempts at prosecuting Bashir. Indeed, a stronger argument can be made that the failure to bring Bashir to account in The Hague has instead encouraged the ruling clique in Khartoum to believe that mass atrocities are a viable policy option, and has led to enhanced attacks in the Nuba Mountains, Blue Nile, and throughout Sudan, and ultimately making it more likely that the two Sudans would divide.

As to the point of “politicization”, it is true that Bashir has been adept at politicizing his circumstance. For some time, he played the “Islamist card”, letting certain Western countries believe that he could be a source of intelligence and a bulwark against violent Jihadis and terrorists. He argued to anti-Western forces that the ICC process is a western colonial project, and he has suggested that it is also an anti-Muslim, anti-Arab institution. At the end of the day, all such allegations can only be addressed in a fair and open trial in which the question of Bashir’s culpability, and that of his lieutenants who have been charged, are tested against well-settled principles of international humanitarian law in a process that for more than half a century has been widely accepted as fair.

In short, we reject any theoretical or practical opposition between justice and peace, and think that rigorous commitment to justice and sincere and common sense efforts at peace must go hand in hand and are not irreconcilable.

 

In December of last year, the Chief Prosecutor of the International Criminal Court, Fatou Bensouda announced that she was “shelving” her investigation due to frustrations over the lack of cooperation shown by the United Nations Security Council. What effect does this decision have on future prospects for justice in Darfur? Why is cooperation between the ICC and the Security Council so important?

 

Let us start by saying IJP continues to have full confidence in Fatou Bensouda. She is an honest, professional, dedicated prosecutor who is being hamstrung by the failure of the international community to fully support her efforts in the Bashir case. That said, we were unhappy with her use of the word “hibernation” in her appearance at the Security Council in December 2014, not because it was an inaccurate term, but because it was twisted by enemies of the Court and comforters of Bashir to mean that the ICC had given up its efforts at prosecution with respect to the Bashir case and Darfur situation.

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Chief Prosecutor of the International Criminal Court, Fatou Bensouda. Photo via Journalists for Justice.

We fully understand that she was functioning under the circumstances in which the Security Council had given her virtually no support in the ten years since Resolution 1593 in the form of council, advice, fiscal assistance, or robust cooperation (we should note that other members of the international community, including several members of the ICC Assembly of States Parties, had failed to arrest Bashir when he was on their territories), and that tensions within the P-5, particularly with respect to the Chinese and Russians, meant that even the informal powers of persuasion of the Council had not been robustly employed to assist in bringing Bashir to account. Since Bensouda’s speech, the Court ruled that because this is a Security Council referral, both Sudan and all other member states of the United Nations are obligated to assist in cooperating with respect to the Bashir case. This marks an important milestone, and it will be important to see whether the Security Council and other regional and subregional organizations are willing to take a stand in support of justice.

 

What measures can the Security Council take to help enforce arrest warrants issued by the ICC? If the Security Council continues to waver over Darfur, what alternatives are there?

 

The measures that the Security Council can take are straightforward. It can be more comprehensive in the sanctions that it imposes on all members of the Sudanese government and leadership in terms of travel and holding resources abroad. It can insist that member states arrest Bashir, and could establish a sanctions regime for those who fail to arrest him when he travels. Minimally, it could urge member states to uphold their duties with respect to cooperation with the ICC. In other words, the Security Council could live up to its mandate under the UN Charter and insist that an accused, albeit a sitting head of state, be brought to account before a recognized Court, in connection with which it has statutory responsibilities for the most serious crimes that persons can commit against each other.

 

What does the renewed spectre of atrocities seen in the government’s latest “counter-insurgency” campaign, along with UN reports that up to 400,000 were displaced in 2014 alone, demonstrate about the Court’s ability to prevent future atrocities in a country where an investigation is ongoing?

 

We think it’s self-evident from what we’ve said before that the continued failure of the Security Council, some members of the Assembly of States Parties, and many members of the international community to rigorously assist the Court in pursuing justice in Darfur, strikes at the very heart of the integrity of modern ideas about humanitarian justice. It also strikes at the heart of international obligations in cases of genocide where the duty of the international community to “prevent and to punish” is clear. Some have argued that the great lesson of World War II was a commitment for the world not to be a bystander in the face of genocide. It can fairly be said with respect to Sudan that alongside Bashir, who faces charges of genocide, are the rest of us who face Bashir, who might meet charges of having stood silent and not exercised sovereign and other responsibilities to bring him to account.

 

What “lessons learned” can be drawn from this case, and how can these be applied to improve the effectiveness of international justice as a tool for responding to and preventing the commission of mass atrocities? For example, what can be done in cases where a lack of regional support for an ICC investigation leads to obstruction or non-compliance?

 

Before directly answering this final question, we think it important to address the sub-textual issue of the response of the AU and some African states to the charges against Bashir. Initially, it has been said that some resistance to the Bashir case is the result of African states concerned that currently all “situations” before the Court are in Africa. We think that this is a red herring. The 34 African states that have ratified the Rome Statute constitute the most robust regional response to the Rome project. Furthermore, despite various controversies – ideological, jurisprudential, and diplomatic – not a single African state has sought to withdraw from the treaty. The elevation of Fatou Bensouda to the position of Chief Prosecutor, and the fact that the ASP is currently lead by President Sadiki Kaba, further suggests that Africa is indeed deeply engaged with the Court (if a decade from now, all situations are in Africa, this may be a different kind of picture).

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A Rwandan member of the African Union-United Nations Hybrid Operation in Darfur (UNAMID) stands guard. UN Photo/Albert González Farran.

With respect to regional efforts, there is a great deal of controversy surrounding the advent of an African Court of Justice and Human Rights. Far from being a negative development, this reveals movement in the direction of the idea of complementarity that lies at the core of the Preamble and Article 1 of the Rome Statute. While IJP is opposed to the concept of immunity for sitting heads of state, which is part of the statute, on the whole, this African court should be viewed as a positive development, and the self-righteous response to it – even from some supporters of the ICC – is inappropriate.

This is not to ignore the fact that there are some leaders within the African continent who may very well feel personally threatened by the ICC, but this is, as we noted, a very logical and expected response from those who seek impunity. We mention this because one lesson learned can be to continue to be flexible and to take seriously the concept of universality in responding to initiatives from other parts of the world, and in many instances, to expect some opposition from vested interests in the robust application of justice.

Although the IJP was founded by two lawyers, Raymond Brown and Wanda Akin, who represent victims in the Darfur situation and Bashir case, we have been forced to learn new skills and to collaborate in the context of our representation. We are, for example, private citizens untrained in diplomacy, and yet we have had to learn in the last decade how to interact creatively with representatives of states – many of them non-lawyers, and many of them only minimally exposed to the details of the justice project with which we have spent a lifetime. We have collaborated with organizations who function in different environments, but with common objectives, such as the Pan African Lawyers Union, with whom as recently as November 2014, alongside the International Refugee Rights Initiative, we gathered and interacted with African human rights activists to explore challenges facing the Court.

We have also expanded our own work into an area sometimes known as “transitional justice”, which has involved developing a means of chasing Bashir (BashirWatch coalition) and working with universities to develop mechanisms for combating the understandable diasporian-wide depression affecting Darfurian diaspora. We have also become more engaged with our own government – with members of Congress and friends within the Executive branch – to encourage the US to assert more leadership, and perhaps even amend its own laws to permit the US to exercise more effective leadership in favor of justice and in opposition to genocide. We continue to teach at the university and law school levels and make public appearances to speak to a wide variety of groups and organizations on behalf of the Darfurian people. We have expanded the reach of our own Darfurian contacts, including within the Darfur People’s Association of New York, the Darfur Rehabilitation Project, and other advocacy groups, and finally, we have exposed a generation of undergraduate and graduate students, new professionals, and public leaders to these issues on an intimate level.

With ten years having passed since Resolution 1593, and still no accused in the dock, we encourage others to similarly advocate and send letters to their own governments promoting leadership on Darfur. A redacted version of our letter can be found here. Finally, thank you to the ICRtoP for providing this opportunity, and for its longstanding commitment to pursuing justice.

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Filed under African Union, genocide, Guest Post, International Criminal Court, Justice

Children in Armed Conflict: A War Crime We Have the Responsibility to Prevent

The following is a guest blog from ICRtoP member Child Soldiers International. Child Soldiers International works to end the military recruitment of children and their use in hostilities, as well as other human rights abuses resulting from their association with armed forces or groups. They promote the release of children, seek their successful return to civilian life, and call for accountability for those who recruit and use them.

More than 50 parties to armed conflict are listed by the UN Secretary-General for recruiting and using children in armed conflict in a variety of capacities. And this list is not exhaustive. The recruitment and use of children by armed forces and armed groups is not only a disturbingly widespread practice: when perpetrated against children under 15 years of age it is a war crime.

Ensuring accountability for such war crimes, along with crimes against humanity and genocide is an essential part of upholding the Responsibility to Protect (RtoP), as well as establishing a basis for sustainable peace and reconciliation. The International Criminal Court (ICC), which came into force in 2002, is the first permanent international judicial body mandated to investigate the commission of atrocity crimes and try alleged perpetrators when judicial mechanisms prove insufficient at the national level. Read on for excellent insight from Child Soldiers International on the importance of accountability and rehabilitation in ending the use and recruitment of child soldiers.

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Child soldiers separated from the Mai Mai militia after surrendering to FARDC in the DRC. UN Photo/Sylvain Liechti

Accountability as Prevention

At Child Soldiers International, we believe that accountability for child recruitment is a crucial component of any strategy aimed at eradicating the use of child soldiers. States have a duty to investigate alleged violations committed by all parties to an armed conflict and prosecute those alleged to be responsible with a view to providing remedies to victims, and preventing the repetition of genocide, war crimes, and crimes against humanity.

However, too many perpetrators continue to evade accountability: such impunity not only denies victims justice and reparations, but it also produces an environment conducive to the continuing perpetration of these crimes. Accountability is an essential component of prevention, and prevention is the most important aspect of the Responsibility to Protect.

Yet, time and again, accountability is dismissed as an obstacle to peace and stability. ‘Pragmatic’ considerations are often invoked – including by child protection agencies – to justify amnesties or de facto immunity for authors of child recruitment in order to secure the release of children from the ranks of armed forces and armed groups, for example. However, we believe that peace is neither achievable, nor sustainable without accountability. This has been repeatedly demonstrated in the context of the Democratic Republic of Congo (DRC), where impunity and integration into the armed forces of suspected perpetrators have simply fuelled further instability and consequent child recruitment.

While amnesties may be pursued for the sake of peace, stability or demobilisation efforts, it is well established (and it is a long standing UN policy) that they cannot be extended to individuals suspected of crimes under international law considered under RtoP – including war crimes like the use and recruitment of children in hostilities, as well as crimes against humanity and genocide.

Accountability and the ICC

When national authorities fail to take action, the International Criminal Court (ICC) offers potential recourse.In December 2014 we welcomed the conviction of former Congolese militia leader Thomas Lubanga Dyilo before the ICC. Mr Lubanga was found guilty of the crimes of conscripting and enlisting children under the age of 15 into his militia, the Patriotic Force for the Liberation of Congo (FPLC), and using them to participate actively in hostilities. In its first judgment, the ICC signalled that these crimes warranted international attention and would not go unpunished.

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Thomas Lubanga on trial at the ICC. Lubanga was ultimately found guilty of the war crime of the use and recruitment of child soldiers. Reuters.

We have observed the deterrent effect of this conviction: in the DRC, where Mr Lubanga’s militia was operating, our partners negotiating the release of children from armed groups report that some commanders who have become aware of Mr Lubanga’s conviction are now fearful of the threat of criminal prosecution and have begun releasing children more systematically.

Similarly, in April 2012 we hailed the conviction of former Liberian President, Charles Ghankay Taylor, before the Special Court for Sierra Leone as a clear message from the international community that those who “aid and abet” armed groups that recruit and use children can and will be brought to justice. Mr Taylor was found guilty of a range of crimes under international law, including recruiting children under the age of 15 and using them to participate actively in hostilities. In 2007, the Court had already convicted Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu for war crimes, crimes against humanity and other serious violations of international humanitarian law, including the recruitment and use of children.

There is huge potential for the ICC to send similar strong messages that these war crimes will no longer be tolerated. It is encouraging to see that it is currently dealing with several other cases of alleged crimes relating to child soldiers, including that of former militia leader Bosco Ntaganda, also from the DRC.

A Former Child Soldier at The Hague

Another ICC case that relates to the issue of child soldiers is that of Dominic Ongwen. A former commander in the Lord’s Resistance Army (LRA), Ongwen was abducted as a child in his native Uganda, spent two decades in the LRA and was brought before the ICC last month. He is the only former child soldier appearing before the Court so far. The charges he faces do not relate to any role he had in the recruitment or use of children; they cover numerous attacks on civilians in 2004 and 2005. However, some are asking whether, as a former child soldier, Mr Ongwen should receive more leniency than other war crime suspects.

Dominic Ongwen’s precise age is unclear. Some reports say that he was abducted while walking to school as a 10-year-old. He himself reported being abducted at 14. In any event, no one is denying that Mr Ongwen, as a child, was the victim of a crime which tore him apart from his family environment and shaped the rest of his life.

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Victor Ongwen makes his first appearance at the ICC accused of war crimes and crimes against humanity. AFP.

It is alleged that he subsequently rose through the ranks of the LRA and became a senior commander involved in the commission of crimes against humanity and war crimes. In 2005 the ICC had issued an arrest warrant for Vincent Otti, Joseph Kony, Dominic Ongwen and two other senior LRA members. In January, some 10 years later, one of those arrest warrants was realised when Mr Ongwen was transferred to the ICC.

His being a former child soldier raises the question about how such defendants can be justly treated in either national or international courts. This has caused some debate, particularly in Uganda where some community leaders and lawyers argue that former child soldiers are not wholly responsible for their actions.

The offences Mr Ongwen is charged with were committed during his adulthood. Using his own stated age, the offences under consideration allegedly took place when he was approximately 29 years old. Indeed the ICC has no jurisdiction to prosecute crimes committed by someone who was under the age of 18 at the time (Rome Statute, Article 26). Mr Ongwen’s past experience as a child soldier may be relevant for his legal defence; however, without prejudice to other factual and legal issues, his being a victim of a similar crime is not a defence in itself. His status as a former child soldier may be more relevant at the sentencing stage, should he be found guilty. Once the Court establishes the correct sentence to impose on an offender, it must then consider whether it should be reduced to take into account the offender’s personal mitigating circumstances.

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Demobilized child soldiers in the DRC. UN Photo/Sylvain Liechti.

It cannot be underestimated how significant these might be in Mr Ongwen’s case. Being abducted as a 10-year-old and experiencing the peripatetic and terrifying life of the LRA’s campaigns cannot but have had a lasting effect on any child. Many children associated with armed forces and armed groups will have endured severe beatings and sexual violence, and will have witnessed killings. Some will have victimised others. Extremely traumatic experiences within these groups are associated with marked emotional distress, behavioural difficulties and traumatic stress symptoms. Children’s ways of coping will be affected by whether they were able to demobilise, and by their post-conflict experiences. Those likely to fare better in the longer term are those who on return to their communities can receive family, peer and community understanding, support, acceptance and forgiveness. However, Mr Ongwen never went back: he grew into adulthood without being exposed to non-violent familial and community socialisation and developmental experiences.

Understanding and empathy towards victims of armed conflict must also be extended to those who emerge from such war-ravaged childhoods to commit crimes, even on a scale such as this. We believe that Mr Ongwen should not avoid justice because of his childhood experiences. However, it would be a potential injustice not to take into account his traumatic experiences when determining an appropriate sentence, should he be found guilty.

Case Studies for the Responsibility to Protect

Several lessons for RtoP can be gleaned from the cases above. First, accountability is the primary responsibility of national authorities, but failing this, can be achieved with the assistance of the international community, or through an ICC investigation. Accountability for crimes under international law such as the recruitment and use of child soldiers is essential for ending the cycle of violence and impunity that can lead to the re-commission of such crimes, as evidenced by the deterrent effect seen in the DRC.

In addition, as demonstrated by the Ongwen case, the RtoP extends to other post-conflict initiatives aimed at preventing future outbreaks of violence that can lead to the commission of atrocities. When dealing with child soldiers, it is critical for States to implement demobilization programmes that also include proper support that will aid the return to psychological well-being in emotionally distressed child soldiers. This, and associated work with their families and communities to facilitate their acceptance and forgiveness on return, is more likely to ensure peace in the longer term.

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Filed under DRC, First Pillar, International Criminal Court, Justice, Prevention, Reconciliation, Uganda