Wednesday, 15 August 2012

International Criminal Law – A Good Time to Reflect


Daniel Wand




Congolese warlord Thomas Lubanga during his trial for conscripting and enlisting children to be used in armed conflict. Evert-Jan Daniels/AP.
Introduction 
Criticising international criminal law has long been a favourite pastime for international legal academics and has provided a wealth of literature on the subject. This has however been arguably justifiable considering the patchy track record of international criminal law in delivering justice on an unrestricted international scale, the very reason for which it was conceived. 
Despite the continued developments and strengthening of international criminal system over the past sixty years, both institutionally and jurisprudentially, it is has remained plagued by various problems and deficiencies. Many of these are an unavoidable result of the deference to sovereignty that international criminal law must pay whilst others are ongoing teething problems associated with infancy of the hybrid legal system. This has resulted in a highly inconsistent success rate of capturing and prosecuting those individuals accused of some of most heinous crimes known to man.
There are two main criticisms of international criminal law which are regularly recited within the literature. The first is that international criminal law has failed to bring to justice the most senior state officials who fund, plan and orchestrate the commission of the most grievous international crimes. The second focuses on the fact that the long awaited and much trumpeted International Criminal Court had failed to bring a single conviction after almost ten years in existence.
These criticisms have however to some extent been mitigated by two recent developments – the conviction of Thomas Lubanga, a former Congolese warlord and Charles Taylor, ex-President of Liberia, in judgments delivered by the International Criminal Court (ICC) and Special Court for Sierra Leone (SCSL) on the 14 March 2012 and 26 April 2012 respectively. These are significant milestones in the ongoing development of international criminal law and prove to the international community that international criminal law and more especially the ICC regime is capable of bringing all individuals to justice and ending global impunity.
The Lubanga Judgment 
The conviction of Thomas Lubanga, the first for the ICC and delivered shortly before its 10th anniversary, is a momentous achievement and a major step forward for the Institution. The judgment proves to the international community and the ICC’s many critics, that it is an institution capable of delivering international justice despite the constraints imposed upon it and has gone a long way to alleviating the lingering fears about the ineffectiveness of the ICC.  
The judgment is also significant as it is the first to confirm the existence of criminal liability for using child soldiers in armed conflict. This practice is prominent throughout Africa and has been for centuries, but it is hoped that Lubanga’s conviction will mark the beginning of the end of this heinous practice, drawing the world’s attention to the issue and acting as a serious deterrent to those who seek to use children in war - as Radhika Coomaraswamy, the UN’s Special Representative for Children and Armed Conflict, stated ‘In this age of global media, today’s verdict will reach warlords and commanders across the world and serve as a strong deterrent’.

It must however be noted that despite its significance some strong criticism has been levied against the judgement. Firstly, it is considered to be very inaccessible. The judgment is almost 600 pages long and highly technocratic and it has therefore been criticised for failing to reach those directly affected by the crimes committed. The judgment is also criticised for being too safe and conservative. It was hoped that the first judgement would seize the opportunity to explore and clarify the nature of the offence of using child soldiers but it fails to do so, offering very little in the way of substance or legal creativity. 
The Charles Taylor Judgment 
The conviction of Charles Taylor was a truly significant moment in modern international criminal law as it was the first time since the Nuremberg Trials that a former head of state was tried and convicted for international crimes in an international criminal tribunal. This judgment proves that no one is above the law and therefore goes a considerable way to reducing the potency of the traditional criticism, that international criminal law is only capable of prosecuting more junior individuals and continues to allow the most senior government officials to live with perpetual impunity – as lead prosecutor Brenda Hollis stated This judgment reinforces the new reality, that heads of state will be held accountable for war crimes....no person, not matter how powerful, will be above the law”. This judgment is also significant for Africa in particular, the continent having struggled to deal with very powerful leaders who have abused their power with horrendous and bloody consequences. 
The basis on which Taylor was convicted is also very significant and reflects a positive shift in international criminal law. The former Liberian president was convicted of aiding and abetting war crimes for his role in perpetuating the conflict in Sierra Leone. Taylor’s link to the crimes committed was significant but a physically detached one and this evidences the fact that international criminal law is beginning to move beyond merely focussing on prosecuting those individuals who directly and physically perpetrate crimes, as has traditionally been the case, and is now being more bold and dynamic in attributing criminal liability to more senior individuals who do not have blood on their hands but without whose leadership and influence the crimes would not occur.  These individuals are arguably the most culpable and it is right and just that they are now being brought to justice.  
Once again however the judgment has not been without criticism. It has been suggested that conducting the trial at The Hague, thousands of miles away from where the atrocities occurred, and not on West Africa soil ‘took away an aspect of the peoples’ ownership of the trial and detracted from the positive ongoing move toward African solutions to African problems, of which the SCSL was emblematic.
What does this mean for the future of International Criminal Law?
The judgments in the Lubanga and Charles Taylor cases are both very important moments in the development of international criminal law and ones whose significance should not be underestimated. Despite both judgments having notable drawbacks their impact on the ongoing development of international criminal law, in terms of its jurisprudential substance and its reputation on the international stage are unquestionable and will undoubtedly contribute to the ongoing development of a greater and more effective international criminal system. 
These judgments however mark only the start of what appears to be a much brighter and more fruitful future for international criminal law. The International Criminal Court is close to delivering its second judgment in the case of Katanga and Chui and has now got its second prosecutor. Radovan Karadzic, a former Bosnian Serb leader, is currently on trial for war crimes and crimes against humanity at the International Criminal Tribunal for the Former Yugoslavia and Bernard Munyagishari, a former Rwandan militia leader, is currently on trial at the International Criminal Tribunal for Rwanda charged with genocide.
It is hoped that these cases will set a new standard in international criminal law, ensuring that no man is above the law and that those individuals who plan, organise and orchestrate the most heinous of international crimes, wherever they are committed, are no longer allowed to live in absolute impunity and are brought to justice in front of the world.

Saturday, 11 August 2012

Who Will Stop the Drones?


Sam Storr




B66 1966 - Unchecked, drone warfare harks back to the excesses of the kill-by-numbers approach resorted to in Vietnam. US Federal Government archive.
The so-called drone wars, began by George Bush and accelerated under Barack Obama, represent nothing less than a totally illegal campaign of systematic, often indiscriminate and senseless murder. It is of vital importance to say this each and every time the topic of the drones is raised, for it is not even secrecy that allows the drones to fly so freely.

Although the existence of CIA bombing campaigns cannot be officially admitted due to 'national security reasons', the Obama administration has had no qualms about publicly referencing it. Indeed, recent Defence Department leaks have made Obama seem indecently proud of his personal involvement in the alleged secret US 'kill list', raising the frightening possibility that innocents across the world will feel the weight of the President's electoral ambitions in high explosives. The US government still makes little information available, but journalists, activists, and NGOs are doing much to fill the gap.

Rather, the US exploits the superficially extra-legal territory that its drone use occupies. The official US silence on the matter is more likely intended to thwart legal attention rather than directly protect national security. Positive statements about the legality of drone operations are coupled with a policy of studied, callous indifference to the facts of what it does.

For example, the Department of Defence clings doggedly to the position that very few civilians are killed in drone operations. This is in dispute of evidence from a variety of sources, such as the Bureau of Investigative Journalism, which are certain that large numbers of innocent civilians have in fact perished. The fact of the matter is that the US makes no attempt to gather the intelligence that might justify their statements.

At times, information supplied by local partners is used to identify specific militants. The reason for drones being used though, is usually because these partners are less-than perfect. As such, this has been criticised for allowing informants to use US drone capabilities as a utility to pursue their own interests, for example by removing a rival.

If this were not enough, many attacks are made on a more spurious basis: the 'signature strike'. This is the method used when the military or CIA wants to kill someone, but has nobody specific in mind. A target can be identified by whether the pattern of their movements fits that of an imagined militant. By the time the 'kill zone' is identified, everybody of militant age is an assumed combatant, and the military does not feel obligated to ascertain whether this was really the case. With such a targeting procedure, the technical precision of the strike is immaterial.

The target of every drone attack is therefore by definition a militant; the more targets that are destroyed, the more successful seems the campaign, and the desire for more blood only grows. This is also in direct contravention of international humanitarian law, which dictates that all reasonable attempts must be made to ensure that civilians do not become military targets. To do this, of course, would make the widespread use of drones impractical.

However, most drone strikes take place in countries where the US is not at war, is not acting in self defence, and has not been authorised by the Security council to act. For the analyst Jeremy Hammond, this makes drone strikes 'incontrovertibly illegal' under Article 2 of the UN convention. Yet this reading is insufficient, as the response to terrorist attacks from unstable states is clearly not something accounted for by the authors of Article 2.

International law has thus far failed to respond to the American challenge, which has been to brazenly distort international legal principles in its favour, whilst making no attempt to recreate a stable, robust and whole international system. This is why UN Rapporteur Christof Heynes is claiming that drone use threatens fifty years of international law.

Therefore the Bush administration considered terrorist acts such as September 11 to be acts of war rather than of criminality, thus unlinking warfare from the concept of states and of international mediation, undermining the entire basis of the international legal system governing conflict. This is essential, as peacetime assassination is banned, as is the use of the weapons carried by drones in law enforcement operations; in war, the threshold for the use of extreme force is lowered, though not previously to the level at which the drone wars operate.

Missiles are aimed not at states, but at poorly-defined 'illegitimate belligerents', to whom precious few legal obligations are owed, especially when they lie dead in a far-off land rather than being an unsightly presence in a Cuban prison.

From Bush through to Obama, the meaning of the terms 'civilian', and 'militant' have also been altered, and the concept of the 'pre-emptive strike' has been strengthened. Although the Obama administration's dropping of the phrase 'War on Terror' seemed a positive development at the time, it now reads as a signal that it could care less about the meaning of what it does.

As Medea Benjamin points out in Drone Warfare, the idea of allowing a place such as Yemen to be bombed on these terms is equally as mad as allowing Hellfire missiles to be directed at uptown Hamburg, London, or New York.

This practice of redefining legal boundaries is of course completely illegitimate. Legal scholar David Glazier argues that most in his profession concur that drone pilots are not technically combatants, and therefore should face no protection from prosecution in the countries upon which they unleash their missiles. Additionally, the CIA, a civilian agency, is wrongfully in charge of many of these attacks.

Above all then, the drone wars rest on the inability of international legal bodies to innovate and to challenge power. Hence the importance of the opening statement; it is caution and complacency that allows the international system to be so badly abused. The beginnings of a high level UN investigation are only just forming, with the UN Special Rapporteur on Extrajudicial killings proffering his belief that war crimes may have been committed. 

Thankfully, despite the seemingly unstoppable momentum of the drone campaign and the associated military hardware industries, this blissful period in which the US military can rain down destruction on the 'others' at will, as it has long dreamed of doing, does have an air of impermanence.

The international community soon begin to realise its direct self-interest in taming the beast, as drone technology becomes more widely available to other rogue states, criminal groups, and terrorists. As the August cover of US Wired magazine so thoughtlessly put it: 'Why should the military have all the cool stuff?'. Israel is also regularly using drones in Palestine. Hezbollah has already flown several Iranian-made surveillance drones over Israel, and has even on occasion attempted to fly in weaponised versions. The possibility of a domestic terrorist drone attack is no doubt the topic of frantic discussion at the Pentagon, as the use of commercial drones spreads.

The legal basis for evaluating drone tactics requires not just research, but hard legal precedent. As international law remains far too selective in its prosecution, unable to challenge the powerful, a system may be built as the monopoly of the skies slips from America's hands. 

Wednesday, 4 July 2012

Press Ethics in the Brave New World


Sam Storr




The CrowdMap Syria Tracker.
The prominence of the vocal, online crowd in so much of our news has rapidly been accepted into our common reality. So rapidly that this reality is much more mature than the debate over its implications.
The popular view of crowdsourcing is very much in its adolescence. Talk abounds of revolutions driven by the social use of simple Western technological innovations, an ideology of open self-expression that can cut across the old restraints and unite all on some shared plane of human diversity.
It is surely true that the opportunities for journalism are great. It has been proven that technology can enable people to speak out in places where the threat of violence or repression would previously have led to this information being suppressed. Rather than having to mine for information, in some places the gems appear to shoot straight from the ground.
Outside of the famous crisis areas, crowdsourcing widens the scope for participation, such as in the recent collaboration between Al Jazeera and the open-source software group Ushahidi, intended to harvest the opinions of ordinary Somalis.
Ushahidi itself was a project that coalesced on the blog of Kenyan journalist Ory Okkoloh, now Google’s Policy Manager for Africa, in response to the violence and lack of information following the Kenyan elections in December 2007, before the famous Green Revolution in Iran. Now providing a versatile open software in use the world over, Ushahidi provides a platform for anybody to contribute in media ranging from text messages to Twitter, to a map of events in space and time. Even in places where violence overshadows a free press, certain Twitter feeds and blogs enable people to take control of the information environment.
Yet all exuberance results in hangover. Evgeny Morozov, amongst others, has already written convincingly of how social media can also offer unique opportunities for dissent to be tracked and crushed. The dangers are insidious and can come in surprising forms, from the sophistication of Middle Easter security regimes to the murderous reaction of Mexican drug cartels to those that spoke ill of them on Facebook.
It is natural to accept the bravery of the activist, journalist, or war correspondent for what it is, if less so for those innocents who without meaning fall afoul of the violent on social media. But admiration should not lead to apathy. When tragedies strike activists, they are lamented, but sometimes consolation is found in the fact that at least their voice was heard. Yet all good journalists take the proper precautions, so that what they do can fully be considered worth the sacrifices they make. 
Although the relationship between journalists and their sources may be changing, its nature should remain the same, and all steps taken to inform and enable activists to deal with the risks. Despite the open chaos and unseen dangers of the internet, Eva Galperin of the Electronic Frontiers Foundation is adamant that it remains ‘incumbent on journalists to insist on secure communications.’
Often, the proper precautions require that both journalists and their sources become experts in online security themselves. Galperin reports that the Syrian regime’s use of digital surveillance, hacking and malware has created an ‘unusually difficult situation.’ It should be noted here that responsibility for the capabilities of many repressive regimes lies partly with the Western companies that create bespoke software explicitly for their use.
One major precaution is to avoid the use of all kinds of phones; though their accessibility makes them popular, they are insecure and can give away the user’s location. The Committee believes that many, especially the unsung locals who may account for nine of every ten journalistic deaths worldwide, are insufficiently aware of these risks.
Beyond this, all must take care of their internet security, using only encrypted communications (and even encrypted Skype calls can be listened in on with 50-90% accuracy), browsing using software such as TOR, avoiding malware, deleting all sensitive information, and being prepared for viruses that their software may not detect.
Luckily, the internet also provides a great deal of free support and guidance – Ushahidi, SaferMobile and the Standby Task Force being good examples. In addition to expertise, the best organisations provide ethics guides. With open-source software being what it is though, not all using it can be depended on to stick to them. Few deployments of the Ushahidi platform were run by the Ushahidi team itself. Very little on the internet can truly be trusted, even powerful hacker collectives are plagued to the extent that police forces can infiltrate and turn their ranks; in Syria, even revolutionary documents and programs purporting to encrypt Skype turned out to be Trojan attacks likely to have emanated from the regime.
Without doubt it is the duty of journalists to ensure that their sources are aware of and prepared for the dangers. It cannot be happily assumed that reporters are fully aware of and accept the risks. No doubt most professional news organisations attempt to do so as best they can. Yet there is a danger that the technologically driven spread and democratisation of journalism that accompanies the declining fortunes of mainstream reporting, amidst the growing pressures of the 24-hour news cycle, threaten a decline in professionalism. Neither is the proper two-way flow of information guaranteed when news is simply gathered from YouTube and Twitter. 
Though new-style journalism and the techniques of the crowd come hand-in-hand, they may not necessarily be the best partners. Indeed, it is important not to over-emphasise novelty. ‘Hazrid’, a Syrian tech activist, told Demotix, somewhat fatalistically, the he expects most of his co-rebels to be caught ‘old style’, due to arrests, torture, and informing. Many of both the dangers and the precautions pre-date their digital forms, though they may now be amplified.
It is also certain that crowdsourced journalism, in its disruptiveness, raises broader ethical questions. For example, while someone posting information publicly might appear to knowingly accept the risks of doing so, they might only be targeted if other users or the mainstream news make their contribution famous. This information can also put others at risk; the ability of the Syrian government to arrest activists has led to the realisation that protests must be filmed so as not to show faces. Even the most careful relinquish control over their fate and that of others when posting to the internet, so that it might be asked, whither goes the responsibility for their risk?
Despite the opportunities and the passive participation enabled by technological change, those who put themselves at risk through their participation in the online crowd are owed more than respect and the propagation of their message.


Friday, 15 June 2012

Syria: The Dangers of Desperation


Sam Storr




Bullets litter the  ground in Houla. Reuters.
If the last two decades hold a lesson about crisis prevention and intervention, it is that the international community has been fairly poor at it. As all parties to the conflict combine to turn Syria into a violent pressure-cooker, dire predictions are being made of what kind of tipping point might eventually be reached, even raising the ghosts of past Annan plans in Bosnia and Rwanda. This international community called upon by the rebels – comprising reluctant liberal-internationalist-opportunists, authoritarian dictatorships, and religious Gulf States – should beware the influence it could have on the dynamics of the conflict. All steps should be taken to avoid endorsing the Assad plan.
The scale of the violence in Syria continues to escalate, and is said to be past the point of a convenient solution, such as the ‘Yemenskii Variant’ given much thought in Russia. The UN Human Rights Commissioner is adamant that there will be no easy escape for Bashar Al-Assad’s regime through amnesty. Assad continues because he believes the opposition can be crushed before he is totally isolated, a possibility which remains in flux. If he is abandoned though, there might be little reason for him to stop. The temptation will grow to suspect him of madness, unable to accept defeat or to react in any other way.
As Syria becomes portrayed as a sectarian conflict, it is apparent that Assad might follow a logic darker than the death impulse. A dominant explanation for why a society might suddenly implode holds that a challenged leadership can draw its supporters (the in-group) closer around them by encouraging xenophobic feelings towards the rest (the out-group). It is believed that the increasingly corrupt and isolated Hutu elite ruling Rwanda in 1994 instigated genocide against the Tutsi in an ultimately suicidal attempt to reaffirm their authority and support among the Hutu majority. An internationally-imposed agreement was on the cusp of forcing them to share power with the enemy Tutsi, at the cost of their patronage system. The killing may also have been intended to ensure that the international community could never again attempt to reunite Rwanda.
Assad’s power system is similarly constituted, with Alawites dominating the government and the army, in particular the component causing violence. Not all Alawites have in fact prospered under Assad either. The arming of loyalist Shabbiha militias, said to have played a large role in the Houla massacre, show how the use of violence can be transferred from state to society. 
Even the worst possibilities for Syria will not match Rwanda, as Alawites only constitute 12% of the population and there exists nothing near the same background of war and hostility. Assad’s rhetoric of ‘foreign-backed terrorists’ is diversionary, rather than the dehumanising descriptions of ‘cockroaches’ favoured by the Hutu and Colonel Gaddafi. Nonetheless, he certainly intends to bind the fate of his people to his own, so that the foundations of his rule will be as strong as his actions are horrifying. By spreading violence and retaliation he could make a monster of Islamism and the Sunnis, putting fear into his Christian supporters. By preventing an acceptable opposition from forming, and damaging the prospects of any future settlement, he would frustrate and deter the international community. Recent sympathetic violence in Lebanon also raises the danger of chaos throughout the Middle East.
It is impossible to tell how close any of this is to reality; the Shia-Alawite versus Sunni narrative might be exaggerated by the political context in the Middle East; Western analysis might play into the regime’s hands by sensationalising the unknown. It is not so long since Robert Kaplan’s The Coming Anarchy took the policy world – and Bill Clinton - by storm with its apocalyptic vision of a descent into tribal violence. 
Feelings about sectarianism and how to face it polarise Syrians themselves. Some regime defectors are pleading with their fellow Alawites to believe that their future is not inextricably linked to the legacy of Assad. Sectarianism remains a choice for Syria, to be determined over the course of this conflict. Even when attempting caution, the international community should ensure that it always supports that.
For Western nations (barring Russia) to hold off responsibility, vocally supporting peace whilst tacitly condoning arms imports by Sunni regimes, is hypocritical and may fuel the sectarian dimension of the conflict. Even when calling for international probes into Syrian war crimes, it is important to avoid making villains of the Alawites in general. However, the extreme difficulty of dealing with sectarianism, and avoiding polarisation, is demonstrated by the international community’s extremely mixed form in the past.


UN observers, informing the world of Syria's breakdown. Reuters.
The genocidal massacres that took advantage of poorly-defended or militarised humanitarian space in Srebrenica, Zaire, and perhaps more recently in the Sudan, should worry those advocating it as a soft-intervention compromise to avoid ‘embarrassing’ the US (whilst shaming Obama). Humanitarian space must be demilitarised and open to all; Assad’s military strength would require a heavy defence and precludes a Libya-style solution. In former Yugoslavia, aerial intervention at first greatly accelerated the atrocities committed by both sides, although the Serbs were singled out for the demonization that accompanied an illegal NATO bombing of civilian targets. 
The Rwandan genocide saw a victor’s democracy emerge for the Tutsi army. President Paul Kagame has since been lavished with praise and aid, despite his forces arguably committing their own genocide in Zaire where Hutu forces thrived in refugee camps. Kagame believes his strict laws banning ethnic self-determination and genocide-denial are necessary to avoid a repeat of the still-recent violence, but is accused of exploiting them to maintain his authoritarian rule. 
By contrast, a strong international involvement in Bosnia and Herzegovina assumed differences to be irreconcilable, imposing a fiendishly complex political system whereby ethnic groupings were each given their own special status and divided into cantons, ensuring that ethnicity remains central to a weak and contradictory national politics. 
The greatest case for caution comes from Iraq, where the shallow but costly achievement of US interests created a nation that would soon unravel in sectarian violence. The criminalisation of the entire Ba’athist party after the 2003 invasion of Iraq only fuelled a weak state and the later insurgency. This demonstrates that the need to end impunity and create justice must also be balanced against the impact on stability
International criminal proceedings have been criticised for being too shallow and insensitive to local politics. Above all, the prosecution of justice must be seen to be fair and impartial. Where violence has occurred between communities that coexist in areas such as in Homs, justice based on truth and reconciliation may be more appropriate. Amongst the confusion, desperation and self-interest that will dominate any international response, the central guiding principle should be to keep the options for Syria’s future open.

Wednesday, 13 June 2012

The Responsibility to Protect Doctrine and the Syrian Conflict – A Difficult Test Failed?


Daniel Wand



The International Commission on State Sovereignty’s document on the Responsibility to Protect. Image Source.
The conflict in Syria has now been raging for over 12 months and has claimed over 9000 lives and left thousands more injured. Yet despite this the international community remains reluctant to intervene militarily in order to stem the violent bloodshed. This unwillingness to act must be questioned in light of the existence of an obligation on the international community to intervene in states in order to protect civilians from gross human rights violations being perpetrated against them by their own government. This obligation is located in the doctrine of the Responsibility to Protect (R2P), a doctrine which was employed to good effect to bring about an end to the violence in Cote d’Ivoire and the conflict in Libya. However, despite the efforts of various states and non-governmental organisations it has so far seemingly failed to provide a solution to the humanitarian crisis in Syria and this has led various commentators to consider whether it really is an effective tool for protecting civilians against gross human rights violation or merely, as many sceptics feared, glossy legal rhetoric subservient to international power politics.
The R2P doctrine was first conceived in 2001 by the International Commission on Intervention of State Sovereignty and was formulated in response to pleas made by the then Secretary General Kofi Anan to the international community to develop and find consensus on a means of effectively addressing gross systematic violations of human rights. The traditional approach of humanitarian intervention sought to provide just such a means to forcibly intervene in states but was widely criticised and discredited throughout the 1990s, especially by developing states who viewed it as no more than neo-imperialistic interventionism dressed up in a humanitarian guise and therefore a fundamental breach of Article 2 (4) of the United Nations Charter. The uncertainty surrounding its legitimacy and legality made the international community reluctant to act upon it which resulted in many horrific atrocities occurring unchecked, most notably the genocide in Rwanda and the Srebrenica massacre. 
The R2P doctrine therefore sought to provide a more legitimate and legally uncontroversial framework through which mass human rights violations could be addressed and therefore allow action to be taken when necessary. It did this by placing the obligation to protect civilians primarily in the hands of the state. Only once a state failed to fulfil this obligation was the international community’s responsibility to act triggered. This is primarily to be discharged through a range of peaceful and diplomatic means but can ultimately take the form of military intervention if peaceful means prove ineffective and only in the gravest circumstances. This approach sought to provide a more comprehensive framework for addressing violations which would alleviate the concerns of developing states and help build a consensus amongst the international community on when and in what circumstances action should be taken.
Following its initial elucidation in 2001 and its unanimous adoption by the General Assembly at the World Summit in 2005, the doctrine began to be tentatively applied by the United Nations Security Council, passing its first real test. It was hesitantly referred to in the sanctioning of intervention in Cote d’Ivoire and more unequivocally in Resolution 1973 which provided for military intervention in Libya. At this point it appeared that the doctrine was moving from theory to reality, providing a legitimate means through which to justify intervention and effectively protect vulnerable populations. Ban Ki-Moon suggested that these events 'represent a historic watershed in the application of the R2P' and 'affirm clearly and unequivocally, the international community's determination to fulfil its responsibility to protect'.
States vote for a UN resolution imposing a no fly zone over Libya in the UN Security Council, 17 March 2011. Image Source.
The escalating conflict in Syria presented another and potentially much more challenging test for the newly evolving doctrine, a test which so far many consider it has failed. It is unquestionable that Bashar Al-Assad’s government has failed to discharge its primary responsibility to protect the Syrian population and the international community has subsequently failed to shoulder its secondary responsibility by failing to forcible intervene to quell the violence and killings.
Although a carefully brokered ceasefire plan has recently been put in place, it was not expressly done so under the auspices of R2P and cannot be said to be an example of the international community reacting to fulfil its responsibility established under international law. Although forcible intervention is not appropriate in all circumstances it is unquestionable that the situation in Syria warrants more forcible intervention. More people have been killed in Syria so far than were killed in Libya prior to the NATO led intervention and many have called for action under the framework, including most recently France.
It can therefore be suggested that the failure of the international community to react effectively is a result of a distinct lack of political will. There are various reasons for this; firstly, unlike Gadaffi, Bashar Al-Assad has numerous allies who are willing to defend his position on the international stage. This can be seen from the various threats made by Russia to veto any Security Council resolution which proposed the condemnation of the Syrian regime or sanctioned forcible intervention. Secondly, unlike Libya, Syria’s geographic location in the volatile Middle East region means that many states fear the wider ramifications of a Western led intervention and are thus reluctant to actively support it.
Diplomats disagree over how to deal with Syria. Photo: AFP.
This shows that despite the high hopes and grandiose claims that the doctrine would provide a clear and pragmatic legal framework through which to address gross human rights violations systematically and effectively, this has not quite been achieved as of yet. The conflict in Syria pertinently highlights the fact that the doctrine is still merely legal rhetoric and heavily subject to international power politics, something which Commission attempted to avoid when developing the doctrine.
This is a serious problem which the concept must overcome if it is to become a credible doctrine which can really provide a means to prevent gross human rights violations occurring in the future, an issue expressly acknowledged by states at the 2009 General Assembly debate on the R2P. The R2P has the potential to completely change the way the international community approaches the protection of civilians and it should not be squandering this excellent opportunity to further the implementation of the doctrine and more importantly help the people of Syria.

Wednesday, 16 May 2012

Corruption in International Law


Sam Storr




Corruption is portrayed as a deadly force in Kenya. Flickr Stream of futureatlascom, from hpronline.
Of all the forms of structural violence that beset the world, probably the most entrenched, widespread and harmful is corruption. It is a sickness, of politics or even of society, which prevents development without huge inequalities, strangles attempts at good governance, destroys confidence in aid programs, and disenfranchises entire populations. 

Of the two most widely-agreed types of corruption, it is petty corruption – the street- or low-level corruption involving interactions with public officials – that most directly impacts the poor. Petty corruption can envelop all levels of society, and is a crime in which all are complicit. Grand corruption, on the other hand, affects the incomes and governance of entire nations. 

Although a problem for all countries, it is in the developing world where corruption can be seen to do the most harm. In Nigeria, the scale of corruption surrounding the oil industry bedevils attempts to account for how much money is lost, or even how much oil has been taken from the soil. Despite the country’s huge incomes, rising poverty levels provoked huge protests last January, which may force the Nigerian government to take action. Uganda too announced a moratorium on oil deals last year after corruption allegations caused parliamentary infighting. India has seen a huge anti-corruption movement grow since 2011, and the Arab Spring can also be read as a widespread rejection of corrupt rule.

Rich mineral and petroleum deposits can quickly attract foreign investments if the country’s politicians are able to offer strong protections to industry. Yet these incomes can sustain a corrupt political elite that shows little interest in extending the same courtesies to their populations. It is argued that these nations have too little capital and expertise to exploit their riches without foreign investment, but this begs the question of what else might be lacking. The risks of conflict that many scholars of war associate with these types of state have led to natural resources being considered more a curse than a blessing.

And yet, major foreign investment deals continue to be pursued in countries rife with corruption issues. There are widespread fears that the about the finding of large oil deposits in east Africa and their impact on countries like Kenya. Even in Somalia, which barely has even a transitional government, the prime minister recently promised that there would be ‘room for everybody’ to gorge on the country’s oil resources, as long as they help to construct the country. This happy narrative of Western-led development and state-building defies the experience of Afghanistan, which is itself negotiating international investment in its resources. 

It is not that international commitment on the need to tackle corruption is lacking. Anti-corruption has been the 10th principle of the UN Global Compact since 2004, and the UN Convention on Corruption now has 140 signatories. Anti-corruption conventions have also been passed by the Organisation of American States and the African Union, and the US has had the Foreign Corrupt Practices law since 1977. Yet it is clear that far more needs to be done in enforcement terms. 

Entrenched corruption is naturally resistant to national attempts at change. As a political issue, it can even become a tool to justify the suppression of dissenters. The mass demonstrations in India that began last year, as well as the examples of Nigeria and Uganda, demonstrate that corruption can eventually reach intolerable levels, even to the point of deterring investment. But national recognition comes at a great cost, and it is yet to be seen whether firm action will actually be taken.

Although, at its worst, corruption can hark back to pre-modern forms of order, it is often inherently transnational by nature. Those who obtain large riches at the expense of their compatriots often base much of their lives abroad, travelling, doing business, educating their children. The ability to expatriate their gains, or emigrate if necessary, is essential if they are to operate with impunity. Sanctions are therefore be an invaluable tool in removing the incentives of corruption.

One major existing obstacle is a lack of data. Many attempts to measure corruption rely on proxies, such as black market size or regulation levels, and the UNDP’s advice is that it be more of an ‘art form’, taking into account many indicators, surveys, and expert advice about the country. This is the approach taken by the widely-cited Corruption Perceptions Index produced by Transparency International, which is essentially a compilation of expert assessments. Although useful for investors, this type of investigation is insufficient to identify corrupt individuals.

Targeting the organisations that thrive on such situations is an alternative to coaxing resource-holders, sustained as they are by their high incomes, to be more accountable to their own populations. Industrial lobbyists, whom can function as a more institutionalised form of corruption, are naturally putting up a good fight. Part of the problem is the assumption that payments to governments are a normal part of competitive business, and that any interference is unfair. A major concern in this respect would be China, which is taking steps to accelerate its foreign direct investment while making a virtue of its ‘non interference’ approach.

However, recent developments suggest that developed nations are increasingly recognisant that the costs of allowing corruption may outweigh the advantages of letting it slide. The US passed Section 1504 of the Dodd-Frank act in 2010, requiring US-registered companies to register all their transactions with governments, and the European Commission followed with similar legislation in 2011. The Foreign Corrupt Practices Act, which has a wide mandate against all activities that can be linked to the US, is also said to have entered a ‘new era of enforcement’. 

Another approach is to put corruption on the human rights agenda. The International Council on Human rights makes the case that corruption can violate the rights to non-discrimination, fair judicial processes, political participation, information access, economic and cultural entitlements, food, housing, healthcare, education and water. Yet despite a growing recognition of the harms of corruption, the status quo remains resilient to both international legislation and national movements.