Category Archives: African Union

All eyes on upcoming elections as Kenya works to prevent the recurrence of atrocities

The people of Kenya are just days away from casting their ballots on 4 March in the country’s first election since the 2007 presidential race which resulted in unprecedented ethnic violence, leaving over 1000 people dead and 600,000 more displaced.  A country with over 70 distinct ethnic groups – the five largest being Kikuyu, Luo, Luhya, Kalenjin, and Kamba – Kenya’s past elections have largely witnessed voting along ethnic lines. This year, eight candidates are running, among them Uhuru Kenyatta and his running-mate, William Ruto, both of whom have been indicted by the International Criminal Court (ICC) for their alleged role in the commission of crimes against humanity following the 2007 elections. While the Kenyan government has undertaken a range of measures to prevent a repeat of 2007’s deadly crisis, including the adoption of a new constitution to redistribute political power, the training of police and civil society to identify and monitor  hate speech, and educating the Kenyan population on the newly established electoral process , civil society organizations have raised alarm to the sizeable risk of violence that remains.  As several NGOs, including Human Rights Watch (HRW), have reported,  Kenya has already experienced election-related inter-communal attacks that left over 400 dead and upwards of 118,000 displaced during 2012 and early 2013.  This election, which is expected to be extremely close and require a second round, known as a “run off” (scheduled for 11 April), will prove a great test for the Kenyan government as it works to uphold its responsibility to protect its population from the recurrence of mass atrocities, as well as ensure a free, fair and transparent presidential race.

Kenya’s 2007 disputed election: a political and humanitarian crisis

SG Meeting

Secretary-General Ban Ki-moon (centre, head table), flanked by Kofi Annan (left, head table), former United Nations Secretary-General, and Anna Tibaijuka, Executive Director of the United Nations Human Settlements Programme, participate in a meeting to end the two-week old deadly violence sparked by recent disputed results of the presidential elections, with the major parties to the conflict.
Credit: UN Photo/Eskinder Debebe

The presidential election of December 2007 swept Kenya into a wave of ethnically charged violence following the contested announcement of incumbent Mwai Kibaki as president over the predicted favorite to win, Raila Odinga. The declaration of Kibaki as president, followed by the swiftness of his inauguration a handful of hours later, triggered widespread and systematic violence characterized by ethnically targeted killings, which evidence later showed to be largely pre-meditated by politicians and community leaders. Crimes committed included crimes against humanity – one of the four crimes and violations that all governments, including Kenya, committed to preventing and halting when endorsing the Responsibility to Protect (RtoP, R2P). The international community acted rapidly to keep the volatile situation from deteriorating by deploying former United Nations Secretary General, Kofi Annan, to serve as international mediator and head of the African Union Panel of Eminent Personalities.  The outcome of the Panel’s efforts was a power-sharing government that committed to address the long term issues and root causes of the conflict.

Pre-election preparation and reform: enough to prevent a repeat of 2007?

A range of preventive actions have been taken by the government, UN agencies, and civil society to prevent a repeat of the tragic violence that plagued Kenya five years ago.  Civil society and media representatives convened a forum organized by the Nairobi Peace Initiative – Africa and the Global Partnership for the Prevention of Armed Conflict, in Nairobi in early February 2013 to share their work to ensure peaceful elections, and discuss the concerns surrounding the poll with the goal of generating a collective voice and strategy for civil society and media.  At the national level, Kenyan authorities have trained hundreds of police and peace organization representatives in monitoring media and speech to bring attention to hateful language that can incite violence.  With the support of translators the monitors can identify hate speech in a range of dialects and, through partnerships with phone service providers, track phone messages too.

Monitoring will be crucial to determine the election results so organizations like the Carter Center, the Citizens’ Coalition for Electoral Democracy in Uganda, and the Elections Observation Group, as well as the East African Community and the African Union, have dispatched teams to oversee the upcoming poll.

UN officials and agencies have been vocal and active as well, with UN Secretary General Ban Ki-moon calling on all leaders to “abide by legal mechanisms and to send a clear message to supporters that violence of any kind would be unacceptable.”  The Special Adviser on the Prevention of Genocide, Mr. Adama Dieng, was in Nairobi in early February where he recalled the responsibility of the Kenyan authorities to protect and noted the need to ensure a swift response by the international community to prevent a repeat of 2007.  His office was there to work with the International Conference on the Great Lakes Region to support Kenya’s National Committee on the Prevention of Genocide, which included holding a five-day workshop on RtoP and the prevention of inter-communal violence. To ensure that all preparations are underway in the event of displacement, the Office for the Coordination of Humanitarian Affairs, created a humanitarian contingency, with the Special Rapporteur on the human rights of internally displaced persons calling on the government and international community to do everything possible to prevent massive displacement.

The government itself has adopted numerous reforms to create the environment needed for peaceful and fair elections and to address the country’s deep seeded grievances.  While these actions should be commended, remaining challenges and incomplete reforms have left many NGOs questioning if the government’s response will be enough.

Constitutional reform

Following a 2010 referendum, Kenya adopted a new constitution to prevent ethnically charged politics and check the power of the executive.  This has been done by giving greater power and resources to local political leaders through the creation of what International Crisis Group (ICG) calls a “new level of governance”– the establishment of 47 districts each with their own governor, senator and assembly. The government has also adopted measures to ensure full geographic (and therefore ethnic) support for the president-elect by creating new voting rules that require the winning candidate to receive more than half of all votes and at least 25% in 24 of the newly established counties.  While these new rules will serve to spread power and responsibility to a range of politicians, the majority of Kenyans have not received the information needed to understand the new Constitution and voting rules, as the Kenyan Human Rights Commission (KHRC) found in its report entitled Countdown to the March 2013 General Elections.  Through conducting polls and interviews throughout the country, KHRC’s research indicated that increased and continuous civic education is crucial “to secure an informed public for future elections.”

The devolution of presidential power is also meant to keep the nation from erupting into large scale violence; however the new counties and positions could very well create the likelihood for localized conflict.  This is in part due to the increased influence that local politicians will hold, which may lead “many local leaders seek to preserve the system of ethnic patronage that devolution was intended to remove.  As a result, the mobilization of ethnic grievances to garner political support remains rampant,” as the Global Centre for R2P (GCR2P) points out. These findings were echoed in ICG’s report entitled Kenya’s 2013 Elections, where the organization elaborates on how the constitutional changes can lead to risk of violence, stating that “although the new level of governance should give communities, including minorities, a greater say (…), it could also transfer political competition, violence and corruption down and create new minorities and new patterns of marginalization.”

Strengthening the security sector

Efforts were also undertaken to address the failures of the police to protect in the aftermath of the last elections. During the violent crisis, the government responded with excessive force, with Amnesty International (AI) recalling the role of police in “killing and injuring protestors and raping and sexually assaulting women and girls, particularly in opposition areas.”  The government subsequently established an ambitious framework which, as the International Center for Policy and Conflict in Africa noted, was meant to “establish and elaborate an effective system of democratic regulation and oversight of security services;” however, as AI points out, the framework has not been implemented to the fullest, and the capacity of security personnel remains an inherent problem, placing civilians at risk of violence yet again.

Little has been done practically to bring to justice those responsible for violent crimes committed following the previous election, and AI has stated that steps have actually been taken to cover up and politically manipulate cases against security personnel.  As a result, while conducting on the ground research, Human Rights Watch (HRW) has heard from countless Kenyans that “they view the police as ineffective and corrupt.” As the elections approach, police also remain understaffed and ill-equipped, with the Council on Foreign Relations reporting that the Kenyan force has about 70,000 police, “or roughly 160 per 100,000 residents, which is less than three-quarters of the 220 per 100,000 recommended by the United Nations.”  These forces will be stretched to their limits when tasked with patrolling the polling stations, which could exceed 40,000 nationwide.

Ending impunity

Upholding accountability for crimes committed during the 2007 election remains a critical challenge for Kenya, and one that has already had an impact on the elections.  HRW also pointed out that little has been done nationwide to arrest and prosecute civilians responsible for attacks on people and property, leaving those responsible for 2007 election-related violence free to repeat their actions.

At the government level, impunity has been stated to be at the heart of the 2007 crisis, with the final report of the Commission of Inquiry on Post-Election Violence calling for the creation of a domestic special tribunal.  After two failed government attempts to establish the tribunal, Kofi Annan sent to the ICC the names of a dozen suspects deemed most responsible, leading to the opening of an investigation by the Court’s then-Chief Prosecutor, Luis Moreno-Ocampo.  From this investigation, six of the suspects, referred to in the media as the “Ocampo six”, were summoned to appear before the Court, ultimately resulting in the confirmation of charges for four of the “Ocampo Six”, including candidate Uhuru Kenyatta and his running mate, William Ruto.  The ICC indictments have influenced the presidential campaigns with the International Federation for Human Rights (FIDH) reporting that some are describing the polls as “a referendum against or for the ICC”.  The indictments have also resulted in an unexpected political alliance with the formation of the Kenyatta-Ruto ticket, as the two men are Kikuyu and Kalenjin respectively, two ethnic groups which violently targeted the other in 2007. Civil society organizations, including the International Commission of Jurists-Kenya (ICJ-Kenya), the Kenyan Human Rights Commission (KHRC), and the International Center for Policy and Conflict, fought to keep Kenyatta and Ruto from running, arguing that their candidacy violated the integrity clause of the new Constitution.  The Kenyan High Court, however, disagreed, ruling that it would not intervene, ultimately giving the two men the green light to participate.  This ruling has led many to wonder about the practicality of a Kenyatta/Ruto presidency, with ICJ-Kenya noting in their report entitled If Uhuru Kenyatta or William Ruto is Elected President or Deputy President, that such a presidency would cripple the government because the country would be left with leaders who are unable to carry out their vast domestic duties due to repeated trips to the Hague.  As of 27 February, the trial dates remained up in the air as the Chief Prosecutor for the ICC, Fatou Bensouda, indicated that she would accept a postponement of the trials to August.  Kenyatta and Ruto had been slated to begin their trials on 10 and 11 April respectively, with 11 April being election run-off date.

What do these risks mean for the elections and the people of Kenya?

As FIDH notes, the pre-election environment has been “marked by political parties and alliances’ mobilization of the population along ethnic lines, the re-activation or creation of illegal gangs and militia groups (…), cases of civilians arming themselves as a preventive measures, the use of hate speech or inflammatory coded language by politicians, vernacular radio stations as well as through social media: in other words, all the ingredients that led to the 2007/2008 violence.”  But 2013 does not need to be a repeat of the cycle of violence that has plagued the country.  As put by ICG, “the people deserve better.  (…) they deserve the change to vote without fear and elect leaders committed to reform and ready to serve society as a whole rather than the narrow interests of elites.”

While the Kenyan government should be commended for the steps taken, more can certainly be done at the domestic and international levels to ensure free and fair elections and uphold the state’s responsibility to protect from mass atrocity crimes.  This can include publicly committing to respect election rules and, as KHRC’s research found, providing civic education about the electoral process.  As HRW recommends, the government can take direct measures through the deployment of police “in adequate numbers to areas of potential conflict and ensure that they perform their duties impartially and with full respect of the law”.  This point was echoed by the GCR2P, who also noted that state authorities should “warn all Kenyans (…) that they will be held responsible for inciting, aiding or perpetrating mass atrocity crimes.”  For actors at the regional and international levels, ICG has called on leaders to send messages urging against “political interference with the elections and especially against the use of or incitement to violence”.  These are just some of the many steps the government of Kenya and the international community can take to prevent the spread of post-election violence.  These preventive efforts drive at the very heart of RtoP, which not only calls for states to halt mass atrocities, but to protect from genocide, crimes against humanity, and ethnic cleansing happening again.  The people of Kenya deserve the opportunity to elect a new president without the fear of mass atrocities; the time for preventive action is now.

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As South Sudan Marks One-Year Anniversary, RtoP Remains Essential As Country Confronts Challenges Moving Forward

South Sudan marked the one-year anniversary of its independence from Sudan on 9 July, with the official Twitter account of the Government of South Sudan (GRSS) sharing its optimism for the future, and President Salva Kiir vowing to work towards a more complete independence for the country at the celebrations in Juba.

United Nations Secretary-General Ban Ki-moon also extended his congratulations to the people of South Sudan for “realizing their long-held aspirations” of independent nationhood.

One year on, however, the world’s newest nation has endured a number of challenges that have wracked its first year of independence, and will continue to threaten its stability as it enters its second year of nationhood.

Border Clashes, Oil Dispute with Sudan

To begin, the split with Sudan has not brought about a peace dividend between the two countries. An oil dispute over pipeline fees with Sudan led the South to halt the production and export of oil in January, which has amounted to an apparent economic disaster in South Sudan.  Protracted skirmishes over natural resources and contested border areas have also nearly led to open war between the two nations, with civilians often caught in the crossfire.

In April, South Sudanese forces captured Heglig, an oil-town in Sudan, which was met with immediate condemnation from the United Nations Security Council (UNSC), as well as threats from Sudanese President Omar al-Bashir to overthrow what he called the “insect” government in South Sudan. In the aftermath, Sudan has been charged with conducting cross-border aerial bombardments on South Sudanese territory on 23 April and 9 May, in direct violation of the UNSC Resolution 2046 of 2 May, which called for an immediate end to hostilities between the two countries.

While an uncertain verbal agreement struck on 8 July between the two countries currently holds a fragile peace in place, a number of outstanding provisions of the 2005 Comprehensive Peace Agreement (CPA), which ended the decades-long Sudanese civil wars and led to the creation of the independent state of South Sudan, remain unresolved, including the status of disputed border areas in Abyei, issues of citizenship, and the sharing of oil revenues.

Amnesty International charged in an 8 July press release that a failure of leadership in Juba and Khartoum has led to increased tensions and conflict between the two countries, The Global Centre for the Responsibility to Protect reiterated this message, stating that the failure by both Sudan and South Sudan to resolve outstanding issues has resulted in the commission of mass atrocities in both countries. With the UN-imposed deadline of 2 August to resolve outstanding CPA issues fast approaching, the threat of a return to violence between these two countries, along with it the commission of mass atrocities, remains. In response to this, a global campaign backed by over 150 human rights activists, civil society organizations and faith leaders called We Choose Peace urged the UN, the African Union, and the League of Arab States to persuade the governments of South Sudan and Sudan to resolve the remaining CPA issues and cease all hostilities.

Ethnic Violence in Jonglei State, Human Rights Concerns

Internal violence has also marred South Sudan’s first year as a nation, with widespread ethnic violence between the Lou Nuer and Murle tribes claiming the lives of nearly 900 in Jonglei State between December 2011 and February 2012.  In a 25 June report by the United Nations Mission in the Republic of South Sudan (UNMISS), entitled Incidents of Intercommunal Violence in Jonglei State, the ethnic clashes were characterized as, “one of the biggest challenges for the GRSS [Government of the Republic of South Sudan] since independence in terms of testing its capacity to protect civilians and to demonstrate its capacity to impose law and order.”

The report subsequently describes how, despite warnings of an impending attack by a large number of Lou Nuer,  the GRSS was “slow to respond”, and failed to prevent or contain the violence. As the report reads, at the heart of the failure by the GRSS to uphold its primary responsibility to protect civilians was a lack of capacity:

Supported by UNMISS, the Government made efforts to contain the violence but these were constrained by the weak capacity of GRSS institutions, particularly local government, security and justice, a lack of human and logistical resources and the tenuous control that state institutions have over territories such as Jonglei, which have been marginalised and neglected over many years.

The report also reflects on the capacity gap faced by UNMISS to assist the GRSS in responding to the crisis:

While UNMISS, as part of its mandate to support the government in protecting civilians, used its resources to the maximum and the actions of both the Mission and the SPLA [Sudanese People’s Liberation Army] contributed to saving lives, it too faced serious constraints to fulfill its mandate obligation in this regard.

As we detailed in a February blog post, the ethnic violence in Jonglei State not only confronted South Sudan’s ability to uphold the first pillar of RtoP – its primary responsibility to protect civilians – but also exposed key challenges for the international community in fulfilling its second-pillar responsibilities of assistance and capacity building:

With the GRSS unable to uphold its responsibility to protect its population without international assistance, UNMISS sought to support national action through preventive deployment, fulfilling RtoP’s second pillar. At the same time, however, UNMISS itself is reeling from a capacity deficit – most importantly, in flight-ready helicopters – which has obstructed the force from effectively carrying out its civilian protection mandate during the recent outbreak of inter-ethnic violence. Thus, although the Security Council established UNMISS in a timely and decisive manner – and with a Chapter VII mandate to protect civilians by “all means necessary” – the force itself has been constrained from providing protection for the South Sudanese population.

Compounding the challenge of upholding pillars one and two has been a lack of accountability for the violence. In a 5 July news release, Coalition-member Human Rights Watch (HRW) urged the GRSS to address the issue of impunity, as well as much-needed human rights reforms, ahead of independence celebrations, stating:

“The government has yet to demonstrate that it will respond to the violence appropriately by actually identifying and prosecuting those responsible,” Bekele said. “South Sudan needs justice, in addition to peace efforts, to stem the violence. The absence of justice contributes to the cycles of attacks and counterattacks across the country.”

The International Federation for Human Rights also documented concerns over the human rights situation in South Sudan in a 6 July report published to mark the first anniversary of the country’s independence, which catalogued concerns over violations of women’s rights, infringements of freedom of expression, and illegal arrests and detention.

 RtoP Essential Moving Forward as South Sudan Confronts Challenges

On top of South Sudan’s internal struggle with ethnic violence and human rights, as well as the looming threat of a return to war with their neighbours to the north and a dismal economic situation, Oxfam International has stated the country is, “facing its worst humanitarian crisis since the end of the war in 2005.” The World Food Programme (WFP) has also reported that levels of hunger and malnutrition in South Sudan are higher now than they were one year ago, affecting nearly 4.7 million people. Tied to this is the conflict with Sudan, which, according to the WFP, “continues to produce a flow of refugees and displaced families, who put further strain on an already overstretched food supply system.”

As South Sudan begins its second year as a nation, the path ahead is fraught with an interconnected web of political, economic, and humanitarian challenges that, if left unresolved, would threaten to subvert the dream of a, “peaceful, prosperous, secure and stable South Sudan.” It is critical that lessons learned from the December 2011-February 2012 violence in Jonglei be institutionalized so as to improve the manner in which the GRSS and UNMISS confront any threatened or actual outbreaks of mass atrocity crimes in the future. In this sense, the Responsibility to Protect remains a critical framework for South Sudan and the wider international community as the world’s newest nation struggles with the extraordinary challenges it faces.

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Kony 2012 and the Responsibility to Protect

On 5 March, Invisible Children (IC) released their viral sensation, “Kony 2012“, which called for the arrest of Joseph Kony, the commander-in-chief of the Lord’s Resistance Army (LRA) who has been indicted by the International Criminal Court (ICC) for his role in the commission of crimes against humanity and war crimes against civilian populations in Uganda.

IC’s Kony 2012 sought to raise awareness about the past atrocities of the LRA and their continued crimes against civilians in the Democratic Republic of Congo (DRC), the Central African Republic (CAR), and South Sudan. It was also a call for action, with a particular emphasis on increasing pressure on policymakers in the United States government, which deployed 100 soldiers in October 2011 to assist Uganda, the DRC, CAR, and South Sudan in their military efforts against the LRA.

Spreading like wildfire on Youtube, Facebook, and Twitter, the video also attracted much criticism. IC was charged with oversimplifying the LRA conflict and omitting the voices of northern Ugandans by Mark Kersten and Patrick Wegner, two bloggers at Justice in Conflict with experience working in LRA-affected areas in Uganda. Mahmoud Mamdani, a professor at Makere University in Kampala, Uganda, deplored IC’s focus on a military solution to the LRA. Alex De Waal, director of the World Peace Foundation at Tufts University, targeted the video for “peddling dangerous and patronizing falsehoods that it is up to the United States to help solve the problem of the LRA.

In response, IC issued a Q&A rebuttal to these critiques on their website, and have since released a second video, entitled “Kony 2012: Part II: Beyond Famous”, which the organization states, “offers a closer look at the LRA and explores the solutions put forward by leaders of the currently-affected areas of CAR, DRC, and South Sudan, where local communities continue to live under the constant threat of LRA violence.”

The idea behind Kony 2012 is not new,” the narrator of the video states as the video opens. “In 2005, world leaders unanimously agreed at the United Nations to uphold the Responsibility to Protect. This states that every single person on the planet has inherent rights that should be defended against the worst crimes against humanity, first by our own countries, and then by the global community, no matter where we live.”

Flashing pictures of Syria and Sudan, and transitioning to the focus on the atrocities committed by the LRA in Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), and South Sudan, the film states, “Although most of the world has agreed to this in theory, in far too many cases, we have failed to live up to our promise…This is why we made this film.”

RtoP, Kony 2012, and Beyond

IC has situated the Responsibility to Protect (RtoP, R2P) at the heart of their film, and premised their recommendations – continued and/or increased military participation by the United States in LRA-affected regions to assist the regional forces of Uganda, the DRC, CAR, and South Sudan, and sustained political support for the initiatives of these countries and regional organizations, like the African Union (AU), to remove Joseph Kony from the battlefield by either arresting him or killing him – on the norm as well.

This post will thus expand on the discussion of RtoP, and examine this new, international norm in the context of the LRA conflict and its application in response to threatened and actual atrocities against civilians in the region.

RtoP’s scope is narrow, but deep, meaning that it applies only to the threat or occurrence of four specific crimes – genocide, crimes against humanity, war crimes, and ethnic cleanings – but provides for a wide range of measures that extend beyond military intervention, including preventive diplomacy, economic sanctions, monitoring missions, and the involvement of regional and international justice mechanisms. The primary responsibility to protect populations from these crimes lies first at the national level, but regional and international actors also have a responsibility to provide assistance and capacity-building to individual governments in upholding this responsibility. In the event of a failure by a state to uphold its protection obligations, these actors have a responsibility to use political, economic, humanitarian, and if necessary, military tools available within the RtoP framework  to prevent and respond to threats of mass atrocities.

The LRA Conflict and RtoP

Kony and the senior commanders of the LRA stand accused of committing widespread war crimes and crimes against humanity, including murder, enslavement, sexual enslavement, rape, mutilation, intentionally directing attacks against civilian populations, pillaging, and the abduction and forced enlistment of children. As unanimously endorsed by UN Member States in  2005, paragraphs 138-139 of the World Summit Outcome Document articulate that war crimes and crimes against humanity are two of the four crimes under the RtoP framework.

As Coalition Steering Committee member Human Rights Watch (HRW) documents in their Q&A on Joseph Kony and the Lord’s Resistance Army, the impact of the operations of the LRA in northern Uganda, where their insurgency began in 1987, was disastrous for civilians, and has induced long-term implications:

“The human toll has been most severe in northern Uganda. Between 1987 and 2006, at least 20,000 Ugandan children were abducted. More than 1.9 million people were displaced from their homes into camps and tens of thousands of Ugandan civilians died…Addressing the aftermath of the war and displacement, however, remains a massive challenge.”

But since being pushed out of Uganda by the Ugandan People’s Defence Force (UPDF) in 2006, the LRA has moved into the neighbouring countries of the DRC, the CAR, and South Sudan. According to HRW, the LRA “remains an immediate menace” to those populations:

“Since September 2008 the LRA has killed more than 2,600 civilians and abducted more than 4,000 other people, many of them children. More than 400,000 people have been displaced from their homes; very few have any access to humanitarian assistance.”

A particular episode in late 2008 and early 2009, the December to January “Christmas Massacres”, highlights the terror and criminality of the LRA. After refusing to sign on to the Juba peace process in 2008, in response to the December 2008 “Operation Lightning Thunder” – a joint offensive by Uganda, the DRC and South Sudan, and supported by the United States – the LRA retaliated with vicious attacks in northern DRC between 24 December 2008 and 13 January 2009. The group also allegedly carried out a massacre of 321 people in the same region of DRC a year later in December of 2009, and abducted 250 others.

Joseph Kony, leader of Lord's Resistance Army, and target of IC's Kony 2012 advocacy campaign. (Photo: Stuart Price/Associated Press)

The LRA is thus allegedly responsible for the widespread commission of war crimes and crimes against humanity in at least two countries, Uganda and the DRC. And while their numbers have supposedly dwindled in light of increased regional military pressure, civilians remain at risk. As a 28 July 2011 report from Coalition Steering Committee member Oxfam International, We are entirely exploitable’: The lack of protection for civilians in Eastern DRC’, states, the majority of people polled in an LRA-affected region felt less safe in 2011 than in 2010.

The report details that in the communities surveyed in Eastern DRC, the LRA was described as the main perpetrator of killings, torture, and abductions as well as of looting, destruction of crops and rape.

In light of the litany of past abuses by the LRA, and the continued threat of mass atrocities posed by the organization in its current areas of operation, the Responsibility to Protect remains an important framework through which national, regional, and international actors can focus their efforts of protecting populations.

However, as critics of Kony 2012 have noted, while the atrocities committed by the LRA are egregious, the group is just one part of the conflict that has spanned over 25 years and across four countries in Central Africa.

In a recent op-ed published in the Washington Times entitled The Other Half of the Kony Equation, Maria Burnett and Elizabeth Evenson, both HRW employees, also highlight the problematic record of the Uganda government’s involvement during the fight against the LRA. Noting that the LRA emerged in large part due to the marginalizing policies of Ugandan President Yoweri Museveni towards the people of northern Uganda, Burnett and Evenson state, “On a lesser scale than those of the LRA, crimes by government forces nevertheless included deliberate killings, routine beatings, rapes, and prolonged arbitrary detention of civilians.”

They assert that there has been no justice for victims of these abuses by the UPDF, with the government stating that those responsible have been investigated and prosecuted, but not publicly releasing any information on the trials. And nearly seven years after releasing the indictments for the top LRA leadership, Burnett and Evenson also state that the ICC has not examined abuses by the UPDF or the Museveni government, which has, “eased pressure on Ugandan authorities to hold their forces to account.”

This remains a crucial issue for Adam Branch, a senior research fellow at the Makere Institute of Social Research in Uganda and professor at San Diego State University, in his op-ed for Al-Jazeera, Kony Part II: Accountability, not awareness. Reflecting on IC’s focus on the efforts of Ugandan and regional forces, Branch states:

“[…] The new strategy ignores the Ugandan military’s abysmal human rights record in neighbouring countries, of great concern if Uganda is to take the lead role in the campaign…Kony Part II aligns itself closely with the ICC’s Moreno-Ocampo, who has shown himself nothing if not unaccountable to the victims to whom he claims to bring justice. Moreno-Ocampo has been perfectly willing to offer impunity to the Ugandan government in order to secure the government’s co-operation in the ICC investigation of the LRA, ignoring the demands from Ugandan human rights activists that the ICC indict both sides, instead of taking sides.”

These concerns over the alleged abuses perpetrated by the Ugandan government strike at the core of RtoP: All states made a commitment to protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing in their endorsement of the norm at the 1005 World Summit. As such, in the context of the LRA conflict, the individual governments bear the primary responsibility for the prevention of these most egregious crimes. Regional and international actors, in recalling their responsibility to protect, must also be available to assist these nations in ensuring the safety of civilian populations.

Responding to the LRA Conflict

Kony 2012 Part II details IC’s four-point “Comprehensive Approach” to stopping Kony and the LRA in 2012, which highlights IC’s civilian protection initiatives in the region, including establishing radio stations that can broadcast and warn civilians against potential attacks, efforts to ensure the peaceful surrender of LRA soldiers, the importance of engaging in post-conflicting reconstruction and rehabilitation in LRA-affected areas, and finally, the arrest of top LRA leadership.

The video states, “Unless Kony and his top commanders surrender, or are arrested, their atrocities will not stop.” This stems from their assertion that negotiations between governments opposed to the LRA have failed to bring about an end to violence, and that the group has consistently used peace negotiations as a means to resupply and rebuild, often through carrying out mass abductions.

Joseph Kony (centre, in white) surrounded by leadership officials of the LRA, including the now-deceased Vincent Otti. (Photo: Reuters)

As such, Kony 2012 Part II calls for the international community to strengthen the ongoing military efforts of the African Union (AU) and regional governments (Uganda, the DRC, South Sudan, and the CAR), which IC states is, “the best way to apprehend top LRA leadership.”

Since 2008, these governments have coordinated militarily against the LRA, conducting joint operations in an attempt to apprehend or kill Joseph Kony and cease atrocities against civilians. Aside from the concerns raised over alleged abuses of human rights committed by the UPDF and other national armies in the region, these troops also suffer from a lack of necessary equipment, including heavy-lift and transport helicopters, and effective training, which has hampered their individual and coordinated military responses to the LRA. Such gaps in capabilities have thus made it difficult for these countries to effectively uphold their primary responsibility to protect civilians from LRA attacks.

Recognizing this, international actors have moved to bolster these efforts. The United States, dispatched 100 military advisers to the region in October 2011 to provide “information, advice, and assistance” to the national armies of Uganda, the DRC, the CAR, and South Sudan. And in March 2012, the African Union announced that it would move to form a 5,000-troop strong brigade, drawing from troops from Uganda, the DRC, the CAR, and South Sudan, to synergize their efforts in seeking to stop Kony through coordinated military action.

But Wegner at Justice in Conflict notes that despite these actions, and the potential for greater coordination by regional governments, the African Union, and the United States, the use of force has yet to be successful in the fight against the LRA:

“Military operations have so far failed to stop the LRA….Rather, they provoked retaliations and civilian casualties. During the UPDF led offensives to stop the LRA in northern Uganda and southern Sudan (now South Sudan), the LRA managed to outmanoeuvre the UPDF and spread the conflict consecutively to previously peaceful parts of the north and eventually even to eastern Uganda where civilians bore the brunt of the fury of the LRA.”

The United Nations also has various peacekeeping missions present in the region, including a UN Stabilization Mission in the DRC (MONUSCO), which has the authorization by the UN Security Council under Chapter VII of the UN Charter to use force to protect civilians, and is deployed in LRA-affected areas in the DRC.  But HRW notes that:

“The UN’s various initiatives regarding the LRA have lacked coordination and impact. While the UN missions have attempted to respond to LRA threats to civilians, it has rarely been a top priority for any of the missions and resources are often directed elsewhere.”

Civil society organizations, particularly those working on the ground in LRA-affected areas, have an all-too important role to play in the effort to protect civilians. Groups that monitor the movements of the LRA and provide early warning of attacks may ensure better civilian protection on the ground, and can alert the actors involved of the risk of imminent atrocities.  Civil society is also integral to the ongoing assessment of coordinated efforts against the LRA, and raising awareness regarding the progress of civilian protection in the region. Their work with victims and affected communities is also crucial to facilitating rehabilitation and post-conflict reconstruction, which are necessary to build a sustainable peace in LRA-affected areas.

As the international community works to protect populations from these massive human rights violations, it is crucial to reiterate the narrow, but deep scope of the RtoP. All states agreed to the responsibility to protect their populations from the crimes of genocide, war crimes, crimes against humanity, and ethnic cleansing. Furthermore, the norm provides for a broad range of political, economic, humanitarian, and if necessary, military measures that actors at all levels, including civil society, individual states, regional and sub-regional organizations, and the United Nations can implement to assist individual governments in upholding their responsibility to protect. If civilians remain at risk in spite of such measures being employed, actors at all levels must assess the tools available to them under the RtoP framework to ensure atrocities are prevented and effective civilian protection is provided.

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Civil Society Advocacy Aims to Ensure Constructive 2012 UN Dialogue on RtoP

The United Nations General Assembly (UNGA) will host an informal interactive dialogue on the Responsibility to Protect this summer (date yet to be announced). The dialogue will be the third of its kind since 2009, and is an opportunity for discussion between Member States, regional and sub-regional arrangements, and civil society on the norm and its implementation. This year, the dialogue will be on measures under the third pillar of the Responsibility to Protect framework – timely and decisive action.

Each dialogue is based, in part, on a report published by the UN Secretary-General (UNSG) ahead of time, which explores aspects of the prevention and response to mass atrocities and roles of various actors within the RtoP framework. A report for this year’s dialogue has yet to be released.

Civil society plays an important role ahead of the dialogues, engaging UN Officials, regional and sub-regional organizations, and Member States to provide constructive remarks, working together to educate on the thematic focus of the dialogues, participating in the meetings themselves, and publishing reports in their aftermath.

The dialogues have served as an important forum to stimulate discussion on the implementation of RtoP, emphasize the importance of prevention, and advance the normative consensus at the UN and in national capitals. They have also attracted an increasing number of attendees since the first meeting in 2009, including from civil society organizations.

Both ICRtoP and the Global Centre for R2P issued statements at the 2010 dialogue on Early Warning, Assessment and RtoP in 2010. Civil society was also represented in the opening panel during this dialogue. The following year, during the dialogue on The Role of Regional and Sub-Regional Arrangements in Implementing the RtoP, the Coalition, Global Centre, Initiatives for International Dialogue (based in the Philippines), and the School for Conflict Analysis and Resolution at George Mason University gave remarks.

Members of the ICRtoP Steering Committee and Secretariat with UN Secretary-General Ban Ki-moon, former President of the UNGA Joseph Deiss, Special Advisors Francis Deng (Genocide Prevention) and Dr. Ed Luck (RtoP), and other panelists at the 2011 dialogue on the role of regional and sub-regional arrangements.

The thematic focus of this year’s dialogue will be measures under the third pillar of the RtoP framework. Third pillar tools range from diplomatic, to economic, legal, and military, and enable flexible, rapid responses to country-specific situations. In light of recent cases including Libya, Côte d’Ivoire, Sudan/South Sudan, and Syria – where such third-pillar measures have been implemented in efforts to protect populations from mass atrocities – the dialogue will serve as a timely opportunity to address concerns held by some UN Member States over RtoP’s implementation, reflect on best practices and lessons learned, and foster informed conversation on clarifying what RtoP’s third pillar entails and how to operationalize these measures.

Underlining the importance attached to this summer’s dialogue, 38 civil society organizations* from around the world participated in a sign-on letter coordinated by the ICRtoP Secretariat, which was sent to UN Secretary-General Ban Ki-moon, the President of the UNGA, Abdulaziz Al Nasser, and the UNSG’s Special Adviser on RtoP, Dr. Edward Luck, on 23 March.

The letter calls for an announcement of a date for the dialogue, and asks that the UNSG’s 2012 report on measures within RtoP’s third pillar be released at least two months ahead of the dialogue, following a consultative process with civil society. As the letter reads:

“Only if published well in advance, can your report be a crucial resource for Member States, regional organizations, and UN offices and departments to prepare for a constructive dialogue. Regional meetings of NGOs and diplomats ahead of the dialogue are an opportunity for these actors to reflect on the report. This will result in increased participation from Member States and regional organizations, as in past years they have lacked adequate time to prepare remarks for the General Assembly….This year’s dialogue can act as a forum to further the commitment of all actors to protect populations from mass atrocities, fostering discussion on how we can all work towards the effective use of the full spectrum tools under the third pillar of RtoP.”

Recognizing the central role that regional and sub-regional organizations play in preventing and halting mass atrocities, and the need for these organizations to be involved in ongoing discussions of RtoP, ICRtoP also sent a letter addressed to 14 such organizations** on 22 March to encourage their attendance and active participation at this summer’s meeting.

Our letter to these organizations draws on the active role played by these organizations in response to country-specific situations where mass atrocities are threatened or have occurred. From the African Union-facilitated mediations in response to the post-election violence in Kenya in 2008, to the deployment of an international policing operation in Kyrgyzstan in 2010 by the Organization of Security and Cooperation in Europe, and the diplomatic moves by the League of Arab States, the Organization for Islamic Cooperation, and the Gulf Cooperation Council to resolve the current crisis in Syria, the efforts of regional and sub-regional organizations are critical to fostering a more comprehensive understanding and robust discussion on third pillar measures under the RtoP framework.

For more information on regional and sub-regional arrangements and regional entry points for the prevention of mass atrocities, please see our regional pages: Africathe AmericasAsia-PacificEurope, and the Middle East.

As the summer nears, civil society has indicated its willingness to be an active participant in this year’s dialogue, as it has been in the past. The announcement of a date for the upcoming dialogue, a published report from the UNSG well in advance to provide the opportunity for wide-ranging consultations, and a commitment by regional and sub-regional organizations to participate in the meeting would be welcome first steps in ensuring the fourth informal interactive dialogue on RtoP is the most comprehensive and attended dialogue yet.

*The 38 civil society organizations that signed on are as follows: A Billion Little Stones (Australia), Act for Peace (Australia), Aegis Trust (United Kingdom), Asia-Pacific Centre for the Responsibility to Protect (Australia), Asia-Pacific Solidarity Coalition, Canadian Lawyers for International Human Rights (Canada), Center for Media Studies and Peace Building (Liberia), Centre for Peace and Conflict Studies (Australia), Centro de Investigación y Educación Popular (Colombia), Citizens for Global Solutions (United States), Coalition for Justice and Accountability (Sierra Leone), Coordinadora Regional de Investigaciones Económicas y Sociales (Argentina), Droits Humains Sans Frontières (Democratic Republic of the Congo), East Africa Law Society (Tanzania), Genocide Alert (Germany), Global Action to Prevent War (United States), Global Justice Center (United States), Global Partnership for the Prevention of Armed Conflict (The Netherlands), Human Rights Watch (United States), Initiatives for International Dialogue (The Philippines), Madariaga-College of Europe Foundation (Belgium), Mindanao Peaceweavers (The Philippines), Montreal Institute for Genocide and Human Rights Studies (Canada), Pan African Lawyers Union (Tanzania), Permanent Peace Movement (Lebanon), R2P Student Coalition (Australia), Réseau de Développement et de Communications de la Femme Africaine (Mali), Semillas para la Democracia (Paraguay), STAND Canada (Canada), United Nations Association – Denmark (Denmark), United Nations Association – Sweden (Sweden), United Nations Association – UK (United Kingdom), United to End Genocide (United States), West Africa Civil Society Forum (Nigeria), West Africa Civil Society Institute (Ghana), World Federalist Movement – Canada (Canada), World Federalist Movement – Institute for Global Policy (United States, The Netherlands) and World Federation of United Nations Associations (United States and Switzerland).

**The 14 regional and sub-regional organizations are as follows: The Association of Southeast Asian Nations, African Union, Caribbean Community, European Union, East African Community, Economic Community of West African States, Gulf Cooperation Council, Intergovernmental Authority for Development, International Conference of the Great Lakes Region, League of Arab States, Organization of American States, Organization for Security and Co-operation in Europe, Organization of Islamic Cooperation, and Southern African Development Community.

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The RtoP and the ICC: Complementary in Prevention, Assistance and Response

The International Criminal Court (ICC) has delivered its first ever verdict with a finding of guilty in the case of the Prosecutor vs. Thomas Lubanga Dyilo on 14 March 2012.

In light of this, and with the ICC playing differing but integral roles in responding to mass atrocities in recent situations like Libya and Côte d’Ivoire, we’d like to expand on the relationship between the Responsibility to Protect (RtoP) and the ICC. In this effort, we asked several ICRtoP member organizations, including the Kenyan Section of the International Commission of Jurists, Citizens for Justice and Accountability, the International Refugee Rights Initiative, and the World Federalist Movement-Institute for Global Policy to provide their reflections on the relationship.

The Responsibility to Protect (RtoP) and the International Criminal Court (ICC) are two interconnected initiatives that seek to ensure that the world responds to mass atrocities and hold perpetrators of these egregious crimes accountable. At their core, however, the RtoP and the ICC are complementary in seeking to prevent these crimes from occurring altogether.

Both the RtoP and ICC articulate the primary responsibilities of states. The Rome Statute of the ICC provides that it is the primary responsibility of national authorities to investigate and prosecute individuals responsible for the commission of genocide, war crimes and crimes against humanity.

George Kegoro, Executive Director of the Kenya Section – International Commission of Jurists, explains this further: “The ICC is a ‘court of last resort’ – that is, its mandate is to prosecute only when domestic avenues have been exhausted, and where a State is unable or unwilling to prosecute those individuals responsible for the gravest of crimes.”

Similarly, RtoP bestows the primary responsibility to protect civilians from genocide, war crimes, crimes against humanity, and ethnic cleansing – the four ‘RtoP crimes’ – to the state. As William Pace, the Executive Director of the World Federalist Movement-Institute for Global Policy (WFM-IGP), a founding Steering Committee Member of the ICRtoP and the Coalition for the ICC, notes, this synergy dates back to the march towards the creation of the ICC, as “RtoP emerged massively from the Rome Statute process – the same crimes, complementarity, national and international responsibility.”

However, as has been witnessed in countless situations, some states fail to uphold their obligations. In instances where states are willing but unable to protect populations, the second pillar of RtoP – international assistance and capacity-building – asserts that the United Nations (UN), its Member States, regional organizations, and civil society have a role to play in ensuring that those states receive the assistance necessary to assume their RtoP.

Similarly, the Assembly of States Parties of the ICC adopted a resolution at the May-June 2010 Kampala Review Conference which premised that the Court and its members, the States Parties to the Rome Statute, should provide the tools needed to assist states who were willing but unable to fulfill their Statute responsibilities. One such example of this was provided by Sulaiman Jabati, Executive Secretary of the Freetown, Sierra Leone-based Citizens for Justice and Accountability  (COJA), who said that the ICC should “expand its outreach activities in countries that have early warning signs for potential conflict.” In this sense, RtoP and the ICC are both complementary in calling for the provision for international assistance to ensure states uphold their primary responsibilities.

RtoP and the ICC are also complementary in instances where states are found both unable and unwilling to meet their responsibilities. The Rome Statute provides that when a state does not meet its primary obligations to prosecute individuals responsible for the commission of Statute crimes, it will ensure situations are investigated, warrants are issued, and those in its custody are prosecuted.

Similarly, when a state is found unable and unwilling to uphold its responsibility to protect civilians, the norm provides that the responsibility to protect those civilians yields to the UN and its Member States in cooperation with regional organizations.

Libya and Côte d’Ivoire: The ICC in the RtoP Toolkit

As the recent cases of Libya and Côte d’Ivoire have demonstrated, the Court is firmly engrained under RtoP’s third pillar – timely and decisive response – as a tool used to respond to situations where mass atrocities are threatened or have occurred, as well as to prevent further atrocities from being committed through deterrence.

In response to the situation in Libya, where the regime of the now-deceased Colonel Muammar Gaddafi committed widespread atrocities against civilian protesters beginning from 17 February onwards, the RtoP framework guided early and unprecedented action to avert further crimes against civilians. An ICC referral was one of the broad range of measures taken to halt the threat of crimes in this context.

On 26 February, the UN Security Council (UNSC) passed Resolution 1970, in which it referred the Libyan case to the ICC and imposed other non-coercive measures to respond to the crackdown. Pace calls the Resolution 1970, “one of the finest ever of the UNSC, and the process leading to the 15-0 decision [result of the vote] among the best examples of how the international community should maintain international peace and security.”

The investigation that ensued resulted in the indictments of Muammar Gaddafi, his son, Saif Gaddafi, and former intelligence chief, Abdullah Senussi, which were announced by the Court while the conflict raged on. But, as Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (IRRI), suggests, the indictments being made while Libya was in the midst of a conflict were problematic. “The arrest warrants before the fall of Gaddafi regime played into the discourse being propagated by the African Union,” states Nkunda, “that the ICC was more interested in trying African leaders,” than finding peace in the country.

Furthermore, Nkunda said the process raised serious concerns on the African continent about the independence of the ICC from the influence of the UNSC, particularly as, “the Libyan case was seen to be biased against one side of the conflict.” Disquiet over the impartiality of the Court has thus led to concerns over the selective application of the RtoP, Nkunda said, which may prove problematic for both the norm and the institution moving forward.

Despite these concerns, the Court remains actively involved in Libya. After Saif’s arrest in November 2011, the ICC has been engaged with Libya’s National Transitional Council (NTC) on the issue of his trial. It had been reported that the Court would allow Libya to try Gaddafi’s son, but as of 25 January 2012, no decision had yet to be made by the ICC.

As of November 2011, the Court remained involved in Libya as it continues to build its case against Saif Gaddafi and Senussi and investigates allegations that all parties to the conflict, including anti-Gaddafi forces, committed war crimes and/or crimes against humanity. The 2 March 2012 report of the UN Human Rights Council’s Commission of Inquiry into Libya, and its handing over of a list to the UN High Commissioner for Human Rights (UNHCHR), Navil Pillay, of suspected perpetrators, could mean continued involvement for the Court moving forward as well.

The Court also played an important role in the response to the post-election violence in Côte d’Ivoire between 28 November 2010 and 11 April 2011, during which widespread human rights violations and crimes against humanity were alleged to have been committed.

As the situation in the country intensified in March and April 2011, the Office of the Prosecutor of the ICC warned on 6 April that an investigation could be triggered as a result of reports of widespread and systematic killings. On 4 October 2011, in the aftermath of hostilities, the ICC exercised its jurisdiction in the country and authorized an investigation into allegations of such violations committed by all parties to the conflict.

Months after his arrest on 11 April 2011, on 30 November 2011 former President Laurent Gbagbo was transferred to the Court – the first head of state to be in the custody of the ICC – and will stand trial for his in alleged involvement in crimes against humanity over the course of the civil conflict. It was also announced on 22 February 2012 that the Court would expand the scope of its investigation into the country to the 2002-2010 period.

According to Kegoro, while the initial involvement of the Court in Côte d’Ivoire (and Libya as well) was both appropriate and justifiable – in that it had an immediate effect of publicly championing an end to impunity and the promotion of the rule of law – the true impact of the ICC is at a, “fledgling state”.

Assessing how the ICC intervention has affected the prevention of further atrocities and regional stability and the peace will require on-going monitoring and evaluation, both during ICC trial processes and after the decisions,” Kegoro said. While he noted that prosecution of perpetrators of the most serious crimes can have a deterrent impact, “the societal implications of ICC interventions and decisions is something that will only be shaped and understood over time.”

Kegoro concluded by adding that, “The long-term impact of the ICC, especially on African nations, is something that needs to be carefully assessed,” particularly in the wake of the Court’s involvement and the implementation of RtoP in Libya and Côte d’Ivoire.

Peace vs. Justice?

As the ICC was involved in Libya during the conflict, but formally announced its investigation into the situation in Côte d’Ivoire only after hostilities had ceased, debate has arisen over the timeliness of the employment of the ICC as a tool to respond to mass atrocities under the RtoP framework. The debate also touches on a more general discussion of whether justice for victims of atrocity crimes can be pursued while attempting to secure a peaceful resolution to a conflict or vice versa. This is more commonly known as the peace vs. justice debate.

Both Jabati and Pace were unequivocal in stating that there can be no peace in any situation without justice for crimes committed. This idea spurred Jabati’s COJA, along with a number of other civil society organization’s present at the Kampala Review Conference, to push for the ability of the ICC’s Chief Prosecutor to prioritize conflict prevention in Africa through extensive outreach programs, highlighting the importance placed on justice in the pursuit of peace in cost-conflict settings, and in the prevention of violence altogether.

Pace argues against the premise that pursuing peace and accountability for international crimes at the same time doesn’t work, and says that there has been, “no peace strategy that has worked worse” than giving major combatant leaders amnesty and transferring them to a third country with personal and financial security. Instead, the WFM-IGP Executive Director stated that while each individual situation must be evaluated independently, the recent-year examples of Bosnia, Sierra Leone, Uganda, the DRC, and Colombia, “make the case that in many conflict situations introducing international criminal justice actually helps achieve and fortify peace.”

But, drawing on the specific example of Kenya, where the ICC opened an investigation on 31 March 2010 and is currently in the process of trying four individuals it has found responsible for the 2007-2008 post-election violence, Kegoro says that the country’s experience points to the fact that the “most practicable time for ICC intervention is in post-conflict situations.

However, according to Kegoro, this was a result of the fact that Kenya had only exhibited its unwillingness to prosecute perpetrators of violence well after it had subsided; thus the ICC had little role to play during the crisis. Therefore, he states that, “there may be a set of circumstances in the future where direct ICC intervention during an armed conflict is appropriate, or even required.”

Also drawing on recent examples, Nkunda sees both positives and negatives of the Court’s involvement during armed hostilities. With the Lubanga case, Nkunda notes that the Court’s engagement during the conflict in the DRC did have a positive impact on limiting crimes, specifically in raising awareness that the practice of conscripting child soldiers was contrary to international law and that such behaviour to could lead to the docket in the Hague.

In terms of negative implications, the IRRI Co-Director points to Sudan as a glaring example, where, “the unintended but expected consequences of the Court’s decision was the expulsion of humanitarian organizations [16 aid agencies operating in Darfur were expelled in early March 2009], which heavily impacted the lives of the very people – the victims – whom the Court was trying to protect.” Furthermore, in singling out individuals as direct perpetrators of the violence, as the ICC did with the indictment of Sudanese President Omar al-Bashir and others in the context of the crisis in Darfur, Nkunda notes that the actions of the Court may have served to insulate one group to become, “more deadly, since they have nothing to lose.”

Our members’ insight, drawn from their experience working in the fields of international law and conflict prevention in unique national and regional contexts, shows that much depends on the complexities of the situation at hand, but that justice should certainly not come at the expense of peace.

Deterrence and the Need for Prevention

Jabati, Kegoro, Nkunda and Pace all touted the deterrent effect of the ICC on would-be violators of Rome Statute provisions, both in conflict and post-conflict settings. At times, however, the ICC itself may not be enough to halt ongoing mass atrocities in specific cases. In both Libya and Côte d’Ivoire, a wider array of measures became necessary to protect populations, including the use of force.

The present Syrian crisis, which has claimed as many as 8,000 lives since March 2011, continues unabated as the civilians remain victim to gross human rights violations at the hands of the regime of President Bashar al-Assad.  Regional and international actors must uphold their Responsibility to Protect the population of Syria by employing additional measures to effectively end the continued “collective punishment”.

In addition to a range of measures to respond to the crisis, the ICC has emerged as a potential tool to respond to the crisis through the RtoP framework. Calls have been made on a number of occasions by UNHCHR Pillay, as well as by French Foreign Minister Alain Juppé, and civil society organizations, including Human Rights Watch and Amnesty International, for the Security Council to refer Syria to the ICC. To date, however, there have been no such moves to ensure justice for the victims of the crackdown through the ICC, and the killing has largely continued unabated.

Only when tangible steps are taken to prevent genocide, crimes against humanity, war crimes, and ethnic cleansing from occurring altogether will this cycle of atrocity and reaction be broken.

UN Secretary-General Ban Ki-moon put forth two such preventive measures in his January 2009 report, Implementing the Responsibility to Protect, by urging Member States to ratify the Rome Statute of the International Criminal Court and to implement national legislation against atrocity crimes.

As the report reads, “The Rome Statute seeks to develop mechanisms and processes for identifying, investigating and prosecuting those most directly responsible for crimes and violations relating to the responsibility to protectI would encourage additional States to become parties to the Statute and thus to strengthen one of the key instruments relating to the responsibility to protect.”

But the Secretary-General noted that becoming a Party to the Rome Statute, along with other relevant instruments of international law, is just the first step in the full of the responsibility to protect. Consistent with the emphasis on the primary responsibilities of states by both the RtoP and the ICC, the Secretary-General’s report states that, “these core international standards need to be faithfully embodied in international legislation,” so that impunity for any of the four RtoP crimes is not accepted nationally or globally.

Taking these steps may ensure that states meet their primary responsibilities of protecting civilians by criminalizing the four RtoP crimes under both their domestic laws and their international obligations, and may work to realize their prevention altogether.

Please see the links below for the full statements by our members:

Statement by Sulaiman Jabati, Executive Secretary of Citizens for Justice and Accountability (Freetown, Sierra Leone)

Statement made by George Kegoro, Executive Director of the Kenyan Section of the International Commission of Jurists (Nairobi, Kenya)

Response by William Pace, Executive Director of the World Federalist Movement-Institute for Global Policy, Convenor of the Coalition for the International Criminal Court (CICC), and Co-Founder and Steering Committee Member of the International Coalition for the Responsibility to Protect (New York, USA)

Statement by Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (Kampala, Uganda and New York, USA)

Special thanks to George Kegoro, Sulaiman Jabati, Dismas Nkunda, and William Pace. A shorter version of this post was expanded upon for this blog, and will be appearing in the upcoming print edition of World Federalist Movement News.

Editor’s Note: The views expressed in these individual responses prepared by our civil society member organizations do not necessarily reflect the views of the International Coalition for the Responsibility to Protect.

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FEATURE: Civil Society Reflects on Challenges for RtoP Post-Libya

To better understand the challenges posed for RtoP in the aftermath of the UN-mandated, NATO-led operation in Libya, we asked a few ICRtoP Member organizations from throughout the world to reflect and provide insight on the following questions:

  • Was the UN-mandated, NATO-led operation in Libya a step forward or a setback for the norm? What implications – positive and/or negative – does the Libya operation carry for RtoP moving forward?
  • What are the responsibilities of the international community as Libya transitions into the post-Gaddafi era? Despite the ending of the NATO mandate in Libya, should the international community continue to play a role in civilian protection?
  • Through an RtoP lens, what lessons can be learned from Libya for future cases where international action – whether non-coercive or coercive – is necessary to protect civilians?

The enlightening responses we received drew on the individual expertise of these ICRtoP Members, and brought in unique regional perspectives as well. Members who contributed were:

Rachel Gerber, Program Officer at The Stanley Foundation

Gus Miclat, Executive Director of Initiatives for International Dialogues

Robert Schütte, President of Genocide Alert

Jillian Siskind, President of Canadian Lawyers for International Human Rights

Sarah Teitt, Outreach Director and China Programme Coordinator for the Asia-Pacific Centre for the Responsibility to Protect

Dr. Robert Zuber of Global Action to Prevent War and Armed Conflict

The full post, “Civil Society Reflects on RtoP Post-Libya“, includes our review of the international response to the situation and analysis on its implications for RtoP, as well as the reflections on the challenges for the norm post-Libya by the individuals above.

We have also published a piece to mark the one-year anniversary of the first protests in Libya, which discusses the difficulties of the transition into the post-Gaddafi era.

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Libya, One Year On: National Transitional Council Struggles with Revolutionary Change

The one-year anniversary of the first protests in Libya was marked on 17 February 2012. Spurred on by the arrest of a human rights campaigner and emboldened by protests sweeping the Arab world, citizens in the eastern Libyan town of Benghazi hit the streets in a “Day of Rage” exactly one year ago in protest of the now-deceased Colonel Muammar Gaddafi’s 41-year rule.

Like Tunisia and Egypt before it, protests spread like wildfire across Libya, with Benghazi becoming the de facto stronghold of the opposition to the Gaddafi regime. As they spread, the crackdown by the Gaddafi regime became more ruthless.

The Libyan leader broadcasted his clear intent to commit further widespread human rights violations in a 22 February 2011 speech, calling on his supporters to attack the protesting “cockroaches”, and urging them to “cleanse Libya house by house” until they surrendered.

The international community responded in an unprecedented manner with a range of measures within the framework of the Responsibility to Protect, imposing sweeping diplomatic and other non-coercive measures at the national, regional, and international levels.

Civil society was quick to label Libya an RtoP situation, with a number of organizations calling for decisive action to prevent atrocities against civilians.

Individual states enacted sanctions, asset freezes, and travel bans. Regional organizations such as the League of Arab States (LAS), the Organization of Islamic Cooperation, and the African Union appealed for restraint, with the European Union enacting sweeping sanctions.

The UN Security Council (UNSC) imposed an arms embargo, travel ban, and assets freeze, while also referring the situation to the International Criminal Court through the unanimous adoption of UNSC Resolution 1970. The UN General Assembly suspended Libya from the Human Rights Council, after the Geneva-based body requested such an action be taken.

As the situation deteriorated further, the LAS and the Gulf Cooperation Council called for more robust measures to be adopted. The regime remained unfazed, intent on committing further atrocities.

With sweeping non-coercive measures failing to bring an end to the crackdown, on 17 March 2011, exactly one month after the first protest erupted, the UNSC passed Resolution 1973, which authorized “all necessary measures” to protect Libyan civilians. A Coalition of international states, led by the North Atlantic Treaty Organization (NATO), moved to quickly enforce the mandate on 19 March 2011.

The decision was another benchmark for RtoP, as it was the first time the Council had mandated the use of force to protect civilians from one or more of the four crimes under the norm’s framework.

Seven months later, after a protracted civil war with devastating consequences for civilians and combatants, Gaddafi was captured and killed on 20 October 2011 by rebel forces, with assistance from NATO airpower. The dictator’s shocking demise spurred the UN’s Office of the High Commissioner for Human Rights, the ICC’s Chief Prosecutor, Human Rights Watch, and Amnesty International to raise suspicions that a war crime was committed.

It was a violent end to the old Libya, and a turbulent beginning to the new era.

Insecurity, Lawlessness Prevail

As Libyans celebrated an end to the Gaddafi era, Mahmoud Jibril, the former leader of Libya’s now-provisionally-ruling National Transitional Council (NTC), hailed Gaddafi’s death as an end to “all the evils” in his country.

One year on however, evil has not vanished from Libya. Instead, insecurity and lawlessness prevail, and a number of high-profile civil society organizations have documented allegations of widespread human rights violations by Libya’s revolutionaries.

According to a 16 February report by Amnesty International (AI), hundreds of armed and “out of control” militias threaten Libya’s transition in the post-Gaddafi era, which the provisional NTC has been unable to rein in.

Running street battles often break out between the militias, terrifying and threatening civilians. Revenge attacks and discrimination against known or suspected Gaddafi supporters, as documented by ICRtoP member Human Rights Watch (HRW) in a 22 January report, are commonplace. Clashes between rival militias have erupted in the southeast, and despite NTC forces intervening, have continued. The violence is fueled by easy access to weapons stockpiles, some of which have slipped across Libya’s borders into neighbouring countries.

Impunity also reigns. These “out of control” militias, along with some NTC-affiliated military and security entities, have allegedly engaged in ill-treatment, torture, and killings of detainees. Lacking an effective judicial system, these alleged crimes have largely gone unpunished in the new Libya.

Detention in these conditions persists for thousands, mostly in centres that are controlled by militias independent of the ruling NTC. A 16 February report by the International Committee of the Red Cross (ICRC) indicated that 8,500 detainees remain in custody in over 60 separate places of detention, most of which are under the control of different authorities.

Detention centres in Misrata were appalling enough to cause Médecins Sans Frontières (MSF) to suspend their work in the prisons on 26 January. In a press release, MSF stated that officials from Misrata-based militias that ran the detention centres frequently subjected detainees to torture and denied them medical care. Furthermore, members of MSF staff were repeatedly brought detainees in the middle of an interrogation to be given medical care so that they could be questioned further.

At a UNSC briefing on 25 January, UN High Commissioner for Human Rights Navi Pillay stated that the lack of central oversight “creates an environment conducive to torture and ill-treatment”, and urged the detention centres to be brought under the control of the Ministry of Justice. However, while the NTC has reportedly assumed custody of more detainees, the reports of AI, HRW, and MSF highlight the continued risk of torture and other human rights violations in post-Gaddafi Libya.

Despite this, there are glimmers of progress. The citizens of Misrata held Libya’s first real exercise in democracy in 42 years by going to the polls on 20 February to elect a new City Council. The NTC has also vowed for elections in June, along with drafting a new constitution, although no date has been set. These gains are threatened by the fact that Libya’s revolution cities, like Misrata, are outpacing the NTC with reforms and forming nearly autonomous city-states.

Reports emerging from Libya in the first months of 2012 are certainly troubling. The struggle to establish security in the new Libya after an eight-month civil war has been compounded by an equally difficult struggle to ensure that human rights are protected, the rule of law is built and respected, and reconciliation is pursued.

Moving forward, the country’s authorities, along with partners at the international, regional, and national levels, must work together to ensure both peace and justice as Libya rebuilds. Such a challenge may prove as a great a test for RtoP as its implementation in response to the crackdown nearly one year ago; however only then will the responsibility to protect truly be upheld in the post-Gaddafi era.

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Filed under African Union, Arab League, Human Rights, International Criminal Court, Libya, National Transitional Council, Post-Conflict, Prevention, Regional Orgs, RtoP, UN

Accounting for the African Union (AU) Response to Libya: A Missed Opportunity?

Featuring commentary from several ICRtoP members

Going against the grain of international recognition of the Libyan National Transitional Council (NTC), on August 26th the African Union (AU)  refused to recognize it as the legitimate governing authority of the country. Instead, the African body has instead called for an “inclusive dialogue” with all parties to the conflict, despite the fact that 20 of its members have already recognized the NTC.

This response marks a notable break among African states in the organization over how to best respond to rapidly unfolding developments in Libya.South Africa has led those who oppose the UN-mandated, NATO-led operation, adopting an openly confrontational position. President Jacob Zuma made the statement that the AU would not support the Libya rebels,  and his government also boycotted the recent Libya Contact Group meeting in Paris, refused to unfreeze assets for the NTC, and has criticizedNATO for the way in which the Libyan operation was carried out, calling for an International Criminal Court probe into alleged human rights violations.

South Africa is joined by others who continue to support Gaddafi and the AU’s response, including Zimbabwe, which promptly expelled Libya’s ambassador to the country when he stated he supported the rebel movement. Kenya has also continued to support an inclusive dialogue between members of the NTC and the Gaddafi regime, and has denied recognition of the NTC.

But ill-sentiments have not been limited to official government channels. Concerns with the implementation of resolution 1973 were recently aired in an open letter signed by over 200 “ordinary citizens” of Africa, including former government officials, academics, and artists, and among them former President of South Africa, Thabo Mbeki. A look at the introduction and conclusion encapsulates the letter’s message:

We, the undersigned, are ordinary citizens of Africa who are immensely pained and angered that fellow Africans are and have been subjected to the fury of war by foreign powers which have clearly repudiated the noble and very relevant vision enshrined in the Charter of the United Nations. […] Those who have brought a deadly rain of bombs to Libya today should not delude themselves to believe that the apparent silence of the millions of Africans means that Africa approves of the campaign of death, destruction and domination which that rain represents.

What can explain all of this? What factors were at play in the AU’s response to Libya? Why has South Africa taken such an openly confrontational stance towards the mission? Has the African continent’s regional body and perhaps its most powerful member found themselves on the wrong side of history and missed an opportunity in Libya?

Looking for answers to these questions, we turned to some of our ICRtoP members on the African continent. Their responses were insightful, ranging from the lasting ties to Muammar Gaddafi to concerns over the nature and conduct of the Libyan operation.

In this post, we explore what they had to say, in addition to other recent commentary from journalistic and academic sources, including Reuters, Time Magazine, and the South African Institute for International Affairs, to get a better picture of the AU’s and South Africa’s response to Libya.

Gaddafi’s generosity, his pan-African vision, and history

As Dismas Nkunda, Co-Director of the International Refugee Initiative (IRRI) in Kampala, Uganda, and Steering Committee member of the ICRtoP, states, “Put simply, it’s about one person: Colonel Gaddafi.” And more simply still, the remaining support for Gaddafi is due to the fact that the ex-leader spread his country’s wealth across the continent:

The government of Libya had invested heavily in many African countries mainly in telecommunication, oil exploration, hotels, agriculture and infrastructure development in many countries; which means that there was no longer need to borrow from the World Bank or International Monetary Fund or indeed begging for loans from the big economic powers with the appendages that come with that.

Tito Byenkya, CEO of the East Africa Law Society in Arusha and also Steering Committee member of the ICRtoP, Tanzania, states that:

Gadaffi was one of the leading financiers of the AU, and a lot of the AU leaders would undoubtedly feel sympathy for him; and one would wonder why their clamour for democratic and pluralistic governance never saw the light of day whilst Gadaffi was still in absolute power in Libya.

But, as Nkunda notes, lingering support for Gaddafi may also extend beyond his invested riches to an affinity with his pan-African vision of solidarity and unity:

His vision for the United States of Africa, was indeed seen by many as the last attempt to rekindle the lost hope of Ghana’s first President Kwame Nkrumah in the quest for a united Africa. It is believed therefore that the west “feared” what a united Africa, with its own currency, vast natural resources, large population and having one common voice could mean for the rest of the world…What if United States of Africa demanded at their own terms?  At the behest of Gaddafi, Africa was about to have Africa Monetary Fund and Africa Central Bank. And his country had the resources to invest heavily in making these financial head way come to fruition.

For South Africa, it’s also history that binds them to the Gaddafi regime. As Nkunda states, the historical connection between many in South Africa and Gaddafi provides a strong, continued link between the ruling-African National Congress (ANC) and the ex-leader of Libya:

When Nelson Mandela came out of prison, he went against all diplomatic and political pressures and visited Libya to thank Gaddafi for standing up against the apartheid regime and supported Africa National Congress.

But can the lucrative relationship with Gaddafi and a historical connection to his support explain the position adopted by a regional organization and enforced by one of its most powerful members? As we’ll see, other factors were at play.

Shunning AU initiatives, stepping over the boundaries of resolution 1973

South Africa’s critical turn against both NATO and the UN, and the subsequent AU decision to refuse recognition of the NTC, became entrenched when the AU road map for peace – a five-point plan led by South Africa, which called for an inclusive political dialogue between the NTC and the Gaddafi regime – was shunned by the Libyan rebels and the international community. Characterized  as “outdated”, the NTC rejected the AU road map on the basis that it did not reflect the demands of the Libyan people that Gaddafi and his sons completely relinquish power. Alan Boswell, the East Africa correspondent for Time Magazine, writes of the effects on the dismissal of the AU’s efforts:

South African President Jacob Zuma then spearheaded an AU effort to get the two sides in Libya to negotiate, but the international community largely ignored the efforts, and the NTC rejected his mediation as biased. “The rebels, encouraged by NATO, snubbed the African Union,” says Isakka Souare, a researcher at the Institute for Security Studies in South Africa. And now, the AU and Zuma are snubbing them back.

And, as Matthew Tostevin of Reuters notes:

For the African Union – and South Africa in particular – there was the embarrassment of seeing peace efforts (no matter how well intended) dismissed internationally while the rebels fought towards Tripoli under the NATO air cover which made their war possible.

In aftermath of this dismissal, Byenkya of the East Africa Law Society says that the conduct of the NATO operation can further explain why both the AU and South Africa have taken the stance that they have:

The African Union, just as the Arab league, was in support of the UN Security Council Resolutions 1970 and 1973…Unfortunately, it appears that the UN Security Council, on which South Africa sits, did not expressly detail the mode of operation of Resolution 1973, leaving it to the members and other continental bodies to determine how to implement it.  NATO then figures that protection of civilians also includes bombing of Gadaffi’s military depots and communication infrastructure; while France resorts to arming the insurgents who have decided to fight all the way to Tripoli…A number of countries that initially supported the resolution, including South Africa, took issue with this mode of implementation of the Resolution, insisting that it was outside the parameters of the Resolution, and effectively constituted facilitating a regime change in Libya..

And according to Nkunda, the manner in which resolution 1973 was implemented may have consequences for the perceptions of RtoP held in capitals on the African continent, and, by association, its various regional bodies and the African Union:

Africa has had the strongest proponents of R2P. As evidenced in the article 4h (of the AU Constitutive Act), it was a mile stone step that if not tinged with world politics and personalities was bound to make R2P become very relevant. But now it will take more convincing since the opponents of the norm will question the wisdom of giving the west a free hand of choosing where, when and how to intervene in any UN member state with or without the consent of the others.

It becomes clear then that the manner in which the international community reacted to the AU’s peace plan, largely championed by South Africa, and concerns held over the way in which resolution 1973 was implemented and pursued by the UN and NATO have factored into the way in which members of the regional body, in particular South Africa, have calculated their response the situation in Libya.

Concerns over regime security?

While the concerns expressed above are powerful in explaining the AU’s and South Africa’s response to the Libya, Nkunda raises an interesting point in his response to our questions, turning his analysis to the response of some other countries on the continent. He states:

There are those who believe that should Gaddafi go, then they are next in line, particularly those who have been longer in power than their constitutional welcome. They muse, “If the strong man Gaddafi can go; what will happen to us, we could be the next”. That is why countries such as Uganda, Congo, Zimbabwe are ready to dismiss the NATO led forces into Libya for they are not sure whence the same force could strike next.

And this fear, that popular revolt (and a potential for UN-mandated intervention to support them in the face of a heavy-handed response) may somehow spread to Sub-Saharan Africa, is certainly guiding some leaders who want to ensure their citizens do not imitate the Egyptians, Tunisians, and Libyans. Recent actions by the government of Uganda, which went as far as blocking a rally that supported the NTC, claiming that protests could trigger violence, are telling.

What role for the AU in Libya moving forward?

The African Union has categorically rejected any criticism that it has failed to help bring an end to Libya’s civil war. It has expressed a willingness to work with the NTC moving forward, and, despite South Africa’s boycott of the Paris Contact Group meeting, the Chairperson of the African Union Commission, Jean Ping, participated.

Given this, what role should the regional body play moving forward in Libya?

Regarding the African Union, Byenkya states that it must come around on its position towards the NTC and secure a position in post-conflict Libya:

The AU should work with the NTC to meet the constitutional and legal reform targets that it has set, but also ensure that all those persons complicit in rights violations on either side of the political divide in Libya are brought to book.

But he also wrote that the AU has bigger challenges confronting it, as evidenced by the manner in which it has responded to Libya:

The AU, as a continental intergovernmental organizational, has all the organs and mechanisms to effectively deal with conflict across the region…However, the response time of these institutions to governance and resource based conflicts across Africa seems at best belated, and wrought with political and other considerations…The AU should also examine whether its current institutional framework is attuned to the emerging global mechanisms on timely prevention of or accountability for human rights violations; and if it is in the negative, make the necessary amendments so it is to be perceived as being relevant.

Elizabeth Sidiropolous of the South African Institute of International Affairs makes a similar recommendation, and urges the African Union to act quickly in order to ensure continued and constructive involvement in post-Gaddafi Libya:

It should also recognise the TNC. Not doing so quickly will make it more irrelevant in the post-Gaddafi Libya and unable to play a meaningful role in pushing for, as its August 26 communiqué said, “an inclusive transitional government, the establishment of a constitutional and legislative framework for the democratic transformation of Libya… and the national reconciliation process”… If the AU does not take these actions now, its objections to its marginalisation will become a self-fulfilling prophecy.

Now, we want to know what you think. Have the African Union and South Africa fallen on the wrong side of history and missed an opportunity in Libya? Or is the manner in which the regional body responded to the situation measured, given their concerns? Comment below and get the conversation started!

A special thanks to Dismas Nkunda and Tito Byenkya for their insights and assistance in bringing this post together.

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Filed under African Union, CivSoc, Libya, Regional Orgs, RtoP, UN