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Whose side is the government on? Targeting of the Rohingya in Myanmar/Burma Leaves Civil Society Demanding Action

On 3 June 2012, the killing and reported rape of a Buddhist woman followed by the massacre of ten Muslims traveling in Rakhine state marked the beginning of a series of violent attacks against the Rohingya communities, their townships and residents in Myanmar/Burma causing widespread destruction of Muslim neighborhoods, mosques and villages and massive displacement. Human Rights Watch‘s (HRW) report All You Can Do is Pray, documents a number of violent incidences against the Rohingya, a minority Muslim population that has long been discriminated against in Myanmar/Burma and the region, since the attacks; including government backed “crimes against humanity” committed against them during a campaign of “ethnic cleansing”. Despite the government appointed Rakhine Commission’s attempt to provide recommendations for improving the ethnic tensions between the Rohingya and the Buddhist populations in Myanmar/Burma, the report failed to effectively tackle the discrimination against the Rohingya. Instead, authorities continue to reinforce the segregation of this population through discriminatory laws and practices that underpin their lack of citizenship and their mistreatment, while also ignoring the violent attacks on Muslim neighborhoods that have continued.

Civil society and UN actors point to the government’s involvement

Under the Responsibility to Protect (RtoP), it is the primary responsibility of the state to protect all populations from crimes against humanity, ethnic cleansing, genocide and war crimes, but in Myanmar/Burma, the government is not assuming this role. To alleviate this tension between the Rohingya minority and the Buddhist population, the Rahkine Commission, a 27 member body which was appointed in August 2012 to examine the causes of the violence between the groups, called for a doubling of security forces in Rakhine State. This is concerning given the number of reports pointing to the involvement of those tasked to restore order – the government, local security forces (including police, inter-agency border control and the army) – in the victimization of the Rohingya. At the United Nations (UN) level, UN Special Rapporteur for the Human Rights situation in Burma, Mr. Tomás Ojea Quintana has said Muslims were clearly targeted with brutal efficiency during attacks on property and the killing of a several Rohingyas. He went on to confirm he received reports of “state involvement in some acts of violence”, including military and police standing by while atrocities are committed as well as evidence of direct involvement of supporting well organized Buddhist gangs in their attacks. One of Burma Campaign UK‘s, latest reports concluded that the targeting of the Rohingya – which includes attacks based solely on identity and the implementation of a number of discriminatory laws, such as the 1982 Citizenship Law denying the population citizenship – violates at least eight international human rights laws and treaty obligations. The UN and a number of civil society organizations, including Amnesty International (AI) and Burma Campaign UK, have expressed concern over the lack of recommendations of the Commission to address issues related to impunity, and the discriminatory laws, as well as the state’s failure to stop “incitement of hatred and violence against Muslims.” The government has failed to address the root causes of the clashes between the groups and implement effective policies to tackle intolerance and promote religious and societal harmony, which, as the Global Center for the Responsibility to Protect (GCR2P) declares, shows that the government, is “failing their duty of the Responsibility to Protect.”

UN Under-Secretary-General for Humanitarian Affairs, Valerie Amos, visits displacement camps in Myanmar’s Rakhine State UN Photo/David Ohana

Quelling ethnic tension: Beyond the Commission’s recommendations

Civil society organizations have been at the forefront of demanding action and issuing recommendations to quell ethnic tensions, which vary from calling for the implementation of comprehensive reconciliation plans, urging the international community to pressure the government to reverse discriminatory policies, establishing an in-country office UN Office of the High Commissioner for Human Rights, and addressing the humanitarian situation with unrestrictive access for aid delivery. The most debated issues are how to end impunity and resolve the statelessness of the Rohingya population caused by the 1982 Citizenship Law, which does not recognize Rohingyas as one of the 135 legally recognized ethnic groups in Myanmar/Burma.

Calls for ensuring justice and putting an end to impunity

According to ALTSEAN-Burma, and Minority Rights Group International (MRG), the Commission has failed to hold accountable those responsible for the ethnic cleansing of the Rohingyas. Echoing this, Mr. Quintana stresses that holding to account those responsible will also be an integral part of restoring relations of trust and harmony between different ethnic and religious communities.” Group such as AI and GCR2Phave recommended impartial investigations to tackle the culture of impunity while HRW has more controversially called for “an independent international commission to investigate crimes against humanity.” At the government level, the United Kingdom is a little apprehensive to undertake such bold action, stopping short of proposing to set up an independent international investigation, but rather asking for the Myanmar/Burma government to conduct an “independent investigative work” to assess “whether ethnic cleansing and crimes against humanity have been committed” – a step Burma Campaign UK believes is useless unless it is an “international” investigation. Mr. Quintana, concerned about how accountability will be ensured going forward, supports AI‘s suggestions that in addition to ending impunity a “comprehensive reform of the security forces, including the establishment of robust accountability mechanisms, adequate vetting systems and training on relevant international standards, is also essential.”

Deciding on what it means to be Burmese

While accountability for past crimes is vital, preventing further tensions requires addressing the root causes of the problem as well. At the heart of the issue is the government’s 1982 Citizenship Act, which denies the Rohingya population national citizenship. Under international human rights standards no person can be left stateless and therefore this denied access is a form of discrimination that needs to be urgently addressed. As if statelessness was not enough, there are a number of other restrictive laws and tight regulations, including restrictions on travel, birth, death, immigration, migration, marriage and land ownership, that target the Rohingya and deny them basic rights guaranteed in international law. Civil society organizations, such MRG, were hoping the Commission would call for a review of the 1982 Citizenship Law; however, the government made it clear it has no intention to do so. In fact, the authorities seem adamant to continue the policies reinforcing the Two-Child Policy that controls the growth of the Rohingya population, an action that HRW declares “could amount to crimes against humanity” and as such must be publicly revoked immediately. Burma Campaign UK‘s approach is different, believing that a cultural change is just as important as the reversal of the discriminatory laws. According to the organization, the society needs to decide what it means to be Burmese and “there needs to be an acceptance that Burma is a multi-ethnic and multi-religious country and people from different ethnic groups can live side by side.”

The Responsibility to Assist

RtoP outlines that it is also the responsibility of the international community to assist in building the capacity of states to ensure the protection of populations against any of the four crimes and violations. For the Asia-Pacific Center for the Responsibility to Protect, this should be in the way of building the capacity of Myanmar’s/Burma’s authorities to manage ethnic relations and inter-faith communal dialogue. Others, like the GCR2P, are calling for the international community to pressure the government to prioritize the development of a comprehensive reconciliation plan to engage ethnic minorities. Targeting the European Union, Burma Campaign UK, and MRG have urged the bodynot to lift sanctions against the government and have encouraged that diplomatic relations with Myanmar/Burma must remain limited. Meanwhile, the European Parliament adopted a resolution condemning the persecution and violence of the Rohingyas, and requesting the revocation of the discriminatory polices. Regardless of the action that has been taken or called for, as Burma Campaign UK points out, the international community must remind the government of their international commitment to the responsibility to protect, and to put pressure where needed to demand action to protect populations.

Going forward: Protection free of discrimination

While RtoP outlines the obligations of all governments and the international community to to protect populations from atrocities, in the case of Myanmar/Burma, amounting evidence suggests more needs to be done to ensure such protection. As UN Special Advisor on the Prevention of Genocide, Adama Dieng, said in his March 25 statement on the crisis, there is a considerable risk of further violence if measures are not put in place to prevent this escalation.” As many civil society groups have said, both the international community and the Myanmar/Burma authorities need to come together and implement measures to prevent future crimes and address the underlying issues that foster the continued discrimination against the Rohingya; however, exactly how this is to be done remains unclear and debated. As AI declares, what is certain is that “the Myanmar authorities are responsible for ensuring protection of people, their homes and livelihoods. While doing so, they must ensure protection of all communities without discrimination.”

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Shocking report details the UN’s failure to protect the people of Sri Lanka

A United Nations (UN) report alleging the failure of the international body to uphold its responsibilities to protect civilians threatened by massive human rights violations during the Sri Lankan civil war was released on 14 November 2012, and quickly spurred impassioned reactions from civil society and UN actors. For many, the Report of the Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka confirmed their earlier claims that the UN did not act rapidly or robustly to protect the people of Sri Lanka. For others, the report was a shocking reality check that the international community still has a long way to go to build the necessary political will and capacity to respond to these deadly conflicts.

Large-scale civilian suffering during the civil war

The final stages of the Sri Lankan civil war, from August 2008 until May 2009, saw a dramatic escalation of violence between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE), known as the Tamil Tigers, who had been fighting to establish the state of Tamil Eelam in the north of the country since the late 1970s. Violence was concentrated in the Wanni, a northern region, and clashes trapped hundreds of thousands of civilians without access to basic necessities or humanitarian aid.

At the time, several civil society organizations, including Human Rights Watch and Amnesty International, criticized the UN for its limited efforts to hold the Sri Lankan government accountable for likely war crimes and crimes against humanity. As noted in the report, the UN evacuated its staff in the Wanni in September 2008 when the government announced it would not be able to guarantee their security, and after that was largely unable to gain access to distribute humanitarian relief aid. With the end of the war in May 2009 came widespread calls to UN Secretary-General Ban Ki-moon to investigate the perpetrators of mass atrocities and UN efforts to protect civilians.  After a Panel of Experts, established by the UNSG, reported in April 2011 that many UN agencies and officials had not done enough to protect civilians, the UNSG created the Internal Review Panel on UN actions in Sri Lanka, which is responsible for the recently released report.

UN fails to protect Sri Lankan population

The report concludes that though the government and LTTE were primarily responsible for “killings and other violations” committed against the civilians trapped in the Wanni, the “events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the evolving situation during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN.”

The report criticizes the UN for its overall lack of action on the crisis, condemning the evacuation of UN staff without protestation as a “serious failure”. According to the report, the UN system as a whole did not put enough political pressure on the government, and left its staff on the ground ill-prepared to deal with the escalating crisis. The report also draws attention to the fact that, though the UN officials had data on the number of civilian deaths and evidence that the government, in many cases, was responsible, they only reported on the violations committed by the LTTE. According to officials at the time, they were reluctant to release information about the government’s involvement out of fear it would further hinder their access to the population in the Wanni. The sole exception was a public statement issued by the Office of the High Commissioner for Human Rights (OHCHR) on 13 March 2009, in spite of strong criticism by most UN senior officials, which reported on the number of casualties and declared that actions by the government and LTTE “may constitute international crimes, entailing individual responsibility, including for war crimes and crimes against humanity”.  The report concludes that “in fact, with its multiplicity of mandates and areas of expertise, the UN possessed the capabilities to simultaneously strive for humanitarian access while also robustly condemning the perpetrators of killings of civilians.”

According to the report, the low level of commitment to civilian protection in Sri Lanka was exacerbated by the inaction of Member States, who failed to take up the escalating crisis in the Security Council, Human Rights Council and General Assembly. To what extent was the commitment governments made in 2005 endorsing their collective responsibility to protect populations from crimes against humanity and war crimes considered during the crisis? The report notes that though RtoP was raised in the context of the war, states were unable to agree on how the norm could help the international community halt the ongoing violence. The report concludes that governments “failed to provide the Secretariat and UN [Country Team] with the support required to fully implement the responsibilities for protection of civilians that Member States had themselves set for such situations.”

Civil society and former UN officials clash over the report’s findings

Civil society organizations swiftly responded to the report, calling for accountability and to use the example of Sri Lanka as an impetus to strengthen UN protection capacities. On 14 November Amnesty International’s José Luis Díaz called the report a “wake-up call for UN member states that have not pushed hard enough for an independent international investigation into alleged war crimes committed by both Sri Lankan forces and the LTTE in the last phase of the war.”  Philippe Bolopion of Human Rights Watch agreed, stating that the report serves as “a call to action and reform for the entire UN system.”  Additionally, Bolopion noted that “The UN’s dereliction of duty in Sri Lanka is a stark reminder of what happens when human rights concerns are marginalized or labeled as too political”.

Meanwhile, others reacted to the UN’s decision to evacuate its staff from the Wanni region. In reading the report, Edward Mortimer, who serves on the Advisory Council of the Sri Lanka Campaign for Peace and Justice and who formerly served as Director of Communications in the Executive Office of the UN, declared that he believed the UN left when they were most needed. The report, Mortimer stated, would show that the “UN has not lived up to the standards we expect of it…”

Benjamin Dix, a UN staff member in Sri Lanka that left the war zone, recalled his own doubts at the time, saying that he “believe[d] we should have gone further north, not evacuate south, and basically abandon the civilian population with no protection or witness….As a humanitarian worker questions were running through my mind – What is this all about? Isn’t this what we signed up to do?

Sir John Holmes, Under-Secretary-General for Humanitarian Affairs at the time of the crisis and one of those whom the report blames for underreporting the government’s responsibility for the violence, defended the UN’s actions. Holmes told BBC that “the idea that if we behaved differently, the Sri Lankan government would have behaved differently I think is not one that is easy to reconcile with the reality at the time.”  In an attempt to provide clarity on the UN’s decision not to report casualty figures, UN spokesperson in Colombo, Sri Lanka at the time, Gordon Weiss, stated that, “It was an institutional decision not to use those [casualty lists] on the basis that those could not be verified and of course they couldn’t be verified because the government of Sri Lanka wasn’t letting us get anywhere near the war zone.” However, his remarks starkly contrast the findings of the report.

Some took the opportunity to remind that the report highlighted the ultimate failure of the Sri Lankan government to protect its population from mass atrocities.Steven Ratner, a professor at University of Michigan’s Law School, stated, “the UN failed, but the Sri Lankan government is ultimately most responsible…They are the ones who have not begun a bona fide accountability process.”  Echoing this, Amnesty International’s José Luis Díaz noted that “The report clearly illustrates the Sri Lankan government’s lack of will to protect civilians or account for very serious violations. There is no evidence that has changed.

Report shows challenges in implementation must not lead to inaction

The Secretary-General’s report not only shows the need to uphold the responsibility to protect populations in Sri Lanka by preventing a culture of impunity for crimes against humanity and war crimes, it emphasizes the critical gaps that the international community must address to strengthen its political will and overall capacity to respond to emerging and ongoing situations of RtoP crimes.

With regard to the Responsibility to Protect norm, the report concludes that, “The concept of a ‘Responsibility to Protect’ was raised occasionally during the final stages of the conflict, but to no useful result. Differing perceptions among Member States and the Secretariat of the concept’s meaning and use had become so contentious as to nullify its potential value. Indeed, making references to the Responsibility to Protect was seen as more likely to weaken rather than strengthen UN action.” This finding serves as a sober reminder to governments, UN officials and the international community as a whole that though we continue to address important questions about how to implement the Responsibility to Protect, these disagreements must never hinder our commitment to react when populations are in dire need of assistance.  The report as a whole underlines the prevailing importance of the prevention of and rapid response to RtoP crimes and violations by highlighting a tragic example of the consequences when the protection of populations is not prioritized.

The initial establishment of the Panel and the Secretary-General’s decision to make its findings public show a commitment to holding perpetrators of the crimes committed in Sri Lanka accountable. However, as Human Rights Watch’s Philippe Bolopion said, “While Ban deserves credit for starting a process he knew could tarnish his office, he will now be judged on his willingness to implement the report’s recommendations and push for justice for Sri Lanka’s victims.”  The UNSG stated that the report’s findings have “profound implications for our work across the world, and I am determined that the United Nations draws the appropriate lessons and does its utmost to earn the confidence of the world’s people, especially those caught in conflict who look to the Organization for help.”  We can only hope that this report will act as a much needed impetus to reform the system as a whole to better respond to protect populations from the most horrific crimes known to humankind.

 

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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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