Cornerstone Global Associates

(Photograph by the author)

Leonie Timmers, Cornerstone

The judgment has been praised by inter alia the European Union and several NGO-s for representing “a milestone for international criminal justice”, since it “demonstrates that perpetrators cannot act with impunity”.¹ Certainly, the importance of this judgment and the work of the ICC should not be underestimated; however, to argue that this one judgment “demonstrates that perpetrators cannot act with impunity” is not realistic for several reasons.

Firstly, it is important to stress that the ICC lacks an enforcement mechanism. This characteristic is often referred to as the “Achilles Heel” of the institution because it means that the ICC depends on the cooperation of States to enforce arrest warrants. The arrest warrant against the Sudanese President Al-Bashir is the clearest example of how this has proved problematic. Three years have passed since the arrest warrant against Al-Bashir was issued, and he has not been arrested in spite of the fact that he has travelled to several countries, including ICC State parties. So long as arrest warrants are mere ink on paper, it is difficult to see how one conviction demonstrates that impunity no longer exists.

Secondly, in accordance with Article 12 of the Rome Statute, the ICC may only exercise jurisdiction over crimes committed within the territory of a State party or committed by a national of a State party, the only exception being a referral of a situation by the Security Council. Therefore, the fact that countries such as the Russian Federation, the United States, Egypt, Iran and Syria have not ratified the Statute implies that in certain countries perpetrators can act with impunity. This again shows the importance of State cooperation. So long as Russia remains determined to block any Security Council action with respect to Syria, President al-Assad remains shielded from the Court and can commit crimes against humanity without being held accountable for them.

Finally, the ICC is complementary to national persecution and has only a limited capacity to try individuals. This raises two issues. Firstly, the majority of those individuals responsible for crimes in a certain conflict are tried in national courts. The ICC should do more effort to assist in the construction of an effective national judiciary, for as long as local prosecution is not seen as a valuable alternative, the majority of perpetrators still enjoy impunity.

The second issue has to do with the type of individuals who should be prosecuted by the ICC. Because of the principle of complementarity, Prosecutor Moreno-Ocampo has always stressed that he targets individuals “bearing the greatest responsibility” for the “most serious” crimes in a conflict. In order to identify those with the greatest responsibility in a conflict, effective investigation on the ground is needed. Seen the distance in terms of kilometers, culture, and traditions between the Court and the areas in which investigations need to be conducted, investigations have not proved to be as effective as they should be. The Lubanga trial provides an example of the consequences of ineffective investigations. First of all, most Congolese do not consider Thomas Lubanga to be the individual bearing “the greatest responsibility” in the crimes committed in the DRC. He is rather considered to be a “small fish” since he was no more than one of several mid level-members within the armed group “RCD-ML”. Secondly, several stakeholders have presented evidence that Thomas Lubanga has committed far worse crimes than those for which he was charged. Those might – to some – just seem details; however, for the victims of the atrocities committed in the DRC such “details” are highly sensitive.

It can be observed from the above that the Lubanga judgment does not resolve the weaknesses of the ICC. Therefore, it can probably be best described as a “first step towards international criminal justice” since it demonstrates that “not all perpetrators can act with impunity”. Moreover, the Lubanga trial has been a learning process that has demonstrated to ICC officials, victims, and to the international community, that the functioning of an International Criminal Court raises difficulties² that were not envisioned when the Rome Statute was drafted and that need to be resolved step by step.

¹ EU Declaration on International Criminal Court judgment in Lubanga Dyilo case, 14 March 2012, available from: http://www.eu-un.europa.eu/articles/fr/article_11967_fr.htm

Simona Maria Ross, Cornerstone

On March 4, the fight for children's rights celebrated a small victory. The conviction of Thomas Lubanga at the International Criminal Court (ICC), has not only been the first successful trial at the ICC, it is also the first time that someone accused of recruiting child soldiers has been convicted.

Thomas Lubanga is a Congolese warlord and the leader of the Union of Congolese Patriots (UPC). The UPC had a stronghold in the gold-rich Ituri region and were fighting for greater influence in this ethnically divided region. The rebel groups are accused of torture, rape and the abduction of children. Children were not only forced to fight, but especially in the case of young girls they have also been used as sex slaves. In 2005, Lubanga was arrested by Congolese authorities and in 2006 the ICC issued an arrest warrant.ⁱ

The final conviction of Lubanga is important for the victims in many ways. For many victims the conviction sends a strong message because it shows that what they experienced is wrong. It delivers a sense of justice and accountability to the victims.

‘For the first time in the history of international criminal justice, victims had the opportunity to present evidence as well as their views and concerns before the ICC in their own name and not only as witnesses for the prosecution.’ⁱⁱ The strong participation of witnesses helped victims to feel recognized and to increase the legitimacy of the verdict. However, there have been many concerns about the security of witnesses. Some fear reprisal attacks on victims and witnesses on the ground, since rebels have been known to attack individuals suspected of cooperating with investigators. Moreover, relatives of those suspected are also targeted. For these reasons, the investigation was transferred to non-governmental organizations that were operating on the ground. As a result, the quality of the investigation in the field faced heavy criticism. Thus, the ICC has to enhance witness protection and care. And while preparation was assured to the victims, there is no clarity about who will be held accountable to deliver these promises. After all, how will anybody be able to measure such unbearable harm?

Another very critical issue, especially in the eyes of victims, is that the charges against Lubanga are very narrow. The strong focus on the topic of child soldiers may have been an essential advantage for the investigation but all those that have been affected by other crimes committed by Lubanga feel forgotten in their pursuit of justice. A great number of young girls have been the center of horrifying stories about sexual abuse. However, those girls will never feel the satisfaction of justice being done.

Nonetheless, the case constitutes a great step for all those individuals, organizations and public institutions that have been involved in the prosecution of Lubanga. The ICC could celebrate a huge milestone in its short history. The ICC is governed by the Rome Statute and is the first international criminal court that investigates serious crimes of concern to the international community. The ICC started its work in 2002.ⁱⁱⁱ

Yet, the ICC lacks full recognition in the world. Because the ICC is a treaty-based institution, and because the most powerful and influential countries have yet to sign, some people question its representation as a global court. With the United States, Russia, China and India excluded from its mandate, the ICC has legal authority in neither the most influential nor the most populous countries.

Still, some argue that the Lubanga case bestows on the ICC more credibility. In fact, it may encourage missing countries not only to ratify the Rome Statute, but also to ratify the UN Convention on the Right of the Child and other resolutions that fight the violation of human rights. Moreover, the ICC is said to be an African court, because so far all eight cases the ICC is working on are focused on war crimes committed in Africa. This leads to the assumption that the ICC is a ‘Western institution’ which operates in ‘Western interests’.

Besides the need for political recognition in the world, the ICC also has to face heavy criticism concerning the quality of the proceeding. Considering that many organizations and individuals have contributed to solving the case and that it has a limited focus on the use of child soldiers, the process should have gone a lot quicker than it did.

On the other hand, Luis Moreno-Ocampo, who is the chief prosecutor, states: "An international court investigated the suffering of some of the most vulnerable members of humanity – children in war zones. (…) The court provided a fair trial to the suspect and convicted him. It is a victory for humanity."^iv

Another essential aspect of this case is its symbolic meaning. It sends a clear message to those still abusing children to fight their own wars. To recruit child soldiers is a war crime and criminals ought to be held accountable. Even though the conviction of Lubanga is a great step in the global development towards a full recognition of human rights, the fight for justice seems to be too complex to find a solution through a single institution. Based on the verdict, many warlords in the Democratic Republic of Congo have retreated in fear. They threaten to stop the peace negotiations if the government cannot guarantee impunity to them. This lowers the ICC’s ability to bring justice. Furthermore, many warlords may see the ICC as a distant institution in The Hague with limited outreach. They calculated their risk of being caught as very low, and value the benefit of having child soldiers over the cost of having to deal with any consequences.

Then again, it is important to see the ICC as part of the ‘bigger’ picture. The justice system also includes the International Criminal Tribunal for the former Yugoslavia and Rwanda as well as legal institutions on the national level. The Lubanga case will act as a role model for similar cases, but it will also encourage domestic institutions to enhance their legal system, to further set a focus on war crimes in their own countries, and to charge individuals who violated human rights.

Although the conviction of Lubanga has generated much criticism, it is an important case for the international community. Firstly, it is a meaningful first step toward achieving justice for victims of violence caused by Lubanga and his followers, as well as for all other people affected by war crimes. It can lead to a reversal in the trend of using child soldiers because military leaders are aware of possible consequences. And while it may not lead to immediate change, this conviction represents progress in the right direction. To shed a light on such atrocities and to show that the world is ready to do something about these inequalities is always the first step towards a peaceful and just future.

References:

Al Jazzera, (Profile: DRC’s Thomas Lubanga, 2012), URL: http://www.aljazeera.com/news/africa/2012/03/201231494537374621.html

Internatinal Criminal Court, (About the Court), URL: http://www.icc-cpi.int/Menus/ICC/About+the+Court/

Ridgwell, Henry. (Lubanga Conviction Boosts ICC – But Weaknesses Remain, 2012), Voice of Africa, URL: http://www.voanews.com/english/news/africa/Lubanga-Conviction-Boosts-ICC—But-Weaknesses-Remain-142819925.html

Sanchis, Eva. (Lubanga’s verdict only first step towards justice for victims, 2012), Redress, London.

Simona Maria Ross, Cornerstone

Senator Mark Warner belongs to the Democratic Party and acts as the current Senator of Virginia. However, people also like to speak of him as a leader of the ‘Gang of Six’. The ‘Gang of Six’ is a bipartisan group, consisting of three democrats and three republicans. Together they assembled to solve the US budget crisis and drafted a plan, which the President agreed on without hesitation. Ironically, as Mr. Warner jokes tiredly, ” That was the worst outcome we could have had, because whenever the President is in favor of something, the rest of the House [of Representations] will be against it.”

Even so, there is little sense in placing the blame entirely on any one political party. As Senator Warner points out, the current budget crisis is simply the consequence of modern medical technology and the resulting increase in life expectancy. In 1889, when Germany established its social insurance program under Germany’s Chancellor Otto von Bismarck, Germany set the retirement age to 70 years and later to 65. At the time, the concept seemed sound, because the average life expectancy was lower than 65 years. In contrast, today the average life expectancy is around 80 years in most industrialized countries. Further, at the early beginning of social insurance programs, the ratio of working people versus people that received entitlements was 16: 1. In comparison, current numbers are around 3: 1.

Another change that has to be tackled is the rise in interest rates. So far the United States enjoyed one of the lowest interest rates in the world. A rise in interest rates would inflate the budget deficit tremendously, and any attempt to decrease the budget deficit would come at a cost of decrease spending in areas such as Infrastructure, education and research. Given that these areas are necessary for global competitiveness, such austerity measures efforts, while consider a short-term solution, would create many long-term problems.

The largest expenditures however are tax cut and tax benefit programs, followed by defense, homeland security and entitlements. Health care does in fact play a big role too, but there are many other programs that acquire a much larger percentage of the budget. Additionally, it is only 5 % of the population that causes about 50 % of the health costs. This group of patients is representative of the chronically-ill. So far the cost reimbursement in the health care system is based on the volume of prescriptions and the number of hospital and physician office visits. In order to achieve more efficiency in the cost and outcome process, the current healthcare system should move toward to a cost reimbursement system based on general health care quality and its outcome.

Mr. Warner also criticizes the political system in the United States. He claims that every third year, during the election campaign, it is the case that politicians take a whole year off. “A whole year long it seems like the political life is on hold,” Warner says. Politicians are too afraid to fulfill their duties and make the right decisions. Sometime those decisions include things that may not have the desired effect to become elected, but they may be essential to the next generation’s future. They choose to do unfavorable necessities in the next year. However, it is not going to be easier to solve the budget crisis next year. Especially considering the fact that it will still be the same old, dysfunctional system where all political institutions are independent, but the system requires them to work together. Every day their passive attitude adds another 4 billion dollar to the national debt of the United States.

Some people argue that they are waiting for the big ‘crash’ that will finally force people to act. However, such an event is not going to bring about any solutions. Even though the economy currently seems to be fragile, it is still the private sector that holds most of the capital. Mr. Warner thinks that business leaders have to also bear some responsibility and have to give up their tax breaks. More and more business managers have already been ready to step forward and choose to actively face global financial challenges.

It is questionable however whether today’s society is ready to give up certain privileges in order to ensure our children’s future. 

(Photograph by the author)

Simona Maria Ross, Cornerstone

As leaders from around the world met at the London Conference on Somalia, it becomes imperative to understand the root causes of the conflict. Over 40 governments and multilateral organizations came together with the aim of delivering a new international approach to Somalia. The main issues have been security, political process, counter-terrorism, piracy and the current humanitarian situation.ⁱ Furthermore, we have to ask whether there will be any progress achieved by June, when the next conference on Somalia will be held in Istanbul.

Somalia’s history of conflict reveals an intriguing paradox––namely, many of the factors that drive armed conflict have also played a role in managing, ending, or preventing war. For instance, clannism and clan cleavages are a source of conflict. They are used to divide Somalis, fuel endemic clashes over resources and power, mobilize militia, and make broad-based reconciliation very difficult to achieve.ⁱⁱ

However, significant armed conflict was absent during Somalia’s first 17 years of independence (1960–77).ⁱⁱⁱ The Somali Republic (1960–1991) constituted the former Italian colonies of South-central Somalia and Puntland and the former British Protectorate of Somaliland.^iv Artificial states without a strong social base of support, resources, or popular legitimacy often survived during the Cold War thanks to superpower patronage and international norms that favored stability and sovereignty. Several of those states, however, collapsed in the 1990s, as external support was withdrawn and societal demands for economic advancement and better governance increased. Sometimes this led to anarchy, but other times legitimacy devolved to local groups.^v Decolonization and the institutions of the early independence years failed to establish effective new ways to connect Somali society to the state.^vi Up to the spring of 1988, through skillful manoeuvering and repression, Siad Barre had managed to stifle the clan conflicts in Somalia.^vii His regime became increasingly authoritarian over time. In the end it relied upon brute force and the manipulation of clan animosities to remain in power. Opposition groups failed to develop an agenda beyond the need to remove Barre. When the state finally collapsed, it left behind little but the wreckage of distorted traditions and artificial institutions, a vacuum that the most ruthless elements in the society soon filled. A long and complex process led to the collapse of the Somali state, compelling the international community to consider what it could do to reverse the deterioration.^viii Siad Barre and his supporters finally fled Mogadishu on January 27, 1991.^ix In a tragic unfolding of events, chaos and insecurity built up until Siad Barre was forced out of Mogadishu. The uncontrolled street violence in the capital led nearly all embassies, international organizations, and non-governmental organizations to close their offices.^x

In mid – 1991, regional actors attempted to convene peace conferences in Djibouti to forge a new ruling coalition, but with little success.^xi The government of Djibouti requested the support of the UN, which refused with no explanation other than that the matter was too complicated. Had the UN, together with regional organizations, been involved in preparing this conference, the reconciliation process could have gotten off to a good start. Even though the negotiations might have been long and arduous, international pressure would have ensured that all parties were committed to the results.^xii The United Nations finally took action to respond to the political vacuum in early 1992 and succeeded in getting the major factional leaders in Mogadishu to sign a cease-fire in March. The United Nations and the rest of the international community, however, responded slowly to the opportunity to broaden the cease-fire into an effective process to promote political reconciliation and institutional rehabilitation.^xiii International officials have responded to the challenge of state collapse by considering expanded multilateral peacekeeping or peace-enforcement operations.^xiv

The military operations by the United States and the United Nations in Somalia have important implications because they exemplify one of the first cases of international action in response to state collapse in the post-Cold War era, and because they represent experiments in new forms of multilateral peace operations. Somalia, of course, has a number of unique characteristics and there is no single model for international actions in cases of state collapse.^xv However, by November 1992 President George Bush sent U.S. forces to lead an international intervention.^xvi Before long UNOSOM itself became embroiled in the conflict, leading to the infamous shooting down of US Black Hawk helicopters in Mogadishu and the subsequent withdrawal of US forces. UNOSOM’s humiliating departure from Somalia was followed by international disengagement and a decline in foreign aid.^xvii

Two major international peacekeeping interventions, the UN Mission in Somalia (UNOSOM) in the 1990s and the AU Mission in Somalia (AMISOM) today, have left their mark on the country.^xviii Some argue that the seeds of militant Islamist movements were planted in this period. Osama bin Laden, then based in Sudan, denounced the UN mission as an invasion of a Muslim country.^xix

Conflict between rival warlords and their factions continued throughout the 1990s. No stable government emerged to take control of the country. The UN assisted Somalia somewhat with food aid, but did not send peacekeeping troops into the country. In the late 1990s, relative calm began to emerge and economic development accelerated somewhat. The country was by no means stable, but it was improving. A transitional government emerged in 2000, but soon lost power.^xx

In the climate of international insecurity that followed the 9/11 attacks on the US, the failed state of Somalia attracted renewed interest as a potential haven and breeding ground for international terrorists.^xxi Additionally, Somalia is often the battleground for divisions between its African and Arab neighbors. Regional actors support clan groups in Somalia that may extend their influence. Somalia is a member of the African Union and the League of Arab States (LAS). As part of Africa, it is automatically a member of the African Union, while its long-standing historic ties based on common cultural and religious affinity give it membership in the LAS.^xxii

The issue of foreign intervention in the country arouses profound emotions. Somalis believe that foreigners – from the Western nations through Somalia’s immediate neighbors to the foreign fighters working for Al Shabab – are involved with Somalia only to satisfy their selfish economic and political interests. They are deeply disappointed by the lack of progress made during past reconciliation conferences sponsored by the international community.^xxiii

Somali people are not just having a lack of trust in the international community. They also doubt that the Transitional National Government is capable of improving their situation. One Somali stated: “I can’t see anything they can do because all their programs are dictated from abroad, so there is no other solution other than for them to leave their positions.”^xxiv They argue that: “People with knowledge must take positions of authority. That can restore peace.”^xxv Most want a peaceful solution to the conflict through reconciliation between the opposing forces – only a minority advocates the use of force. Although, as noted earlier, many see a role for the international community in terms of providing financial and moral support, they are nonetheless adamant that reconciliation must principally be a Somali-led effort.^xxvi

When discussing the conflict and possible peace-building measures in Somalia, it is important to note that the majority of Somalis are Sunni Muslims.^xxvii The international community has to fully understand their personal interpretation of religion and the meaning of war.

Conflict-sensitive assistance would mean that reconstruction and development policies, programs, and projects consider their potential impact on the conflict environment, in order to ensure that interventions do not contribute to conflict escalation but instead, if possible, to de-escalation.^xxviii Conflict monitoring would have two aspects: monitoring indicators of change and monitoring the impact of reconstruction and development interventions on the conflict situation.^xxix A preventive approach in such case has a fairly good chance of success without great expense, and without the need for a large military presence.^xxx

Leaders agreed on a seven-point plan promising more humanitarian aid, support for African Union peacekeepers and better international co-ordination.^xxxi Whereas Ms Harper from BBC News argues that: ” There seems to be a bit of a contradiction in the final communiqué. On the one hand, it states in bold type that decisions on Somalia's future "rest with the Somali people". On the other it talks about outsiders taking some control of the government's budget.”^xxxii Whatever those world leaders agreed on and discussed, it is still questionable whether this conference will bring any change.

Somalia is the longest-running instance of complete state collapse in the post-colonial era. It has also been the site of some of the world’s most intensive mediation efforts, designed to bring the country’s twenty-year crisis to a close.^xxxiii

However, we have to notice that with each failed peace process, the Somali crisis has become more intractable and difficult to resolve as distrust grows, grievances mount, coping mechanisms become entrenched and the percentage of the Somali population that has a living memory of a functioning central government shrinks.^xxxiv

References:

Baugh, Matt. [London Somalia Conference, 2012], Foreign and Commonwealth Office, London, URL: http://www.fco.gov.uk/en/news/somalia-conference/

BBC. [London conference backs Somalia terror fight, 2012], London, URL: http://www.bbc.co.uk/news/uk-politics-17131208

Bradbury, M./ Healy, S. [Whose peace is it anyway? - Connecting Somali and international peacemaking, 2010], Accord, Issue 21, London.

Central Intelligence Agency [Somalia], In: The World Factbook, URL: https://www.cia.gov/library/publications/the-world-factbook/geos/so.html

Levy, Andrea L. [Searching for Peace - Views and Comments from Somalia on theFoundations of a New Government, 2011], National Democratic Institute for International Affairs, Washington DC.

Lyons, Terrence./Samatar, Ahmed.I. [Somalia – Sate Collapse, Multilateral Intervention, and Strategies for Political Reconstruction, 1995], Brookings Occasional Papers, Washington DC.

Pike, John. [Somalia Civil War], Global Security, URL: http://www.globalsecurity.org/military/world/war/somalia.htm

Sahnoun, Mohamed. [Somalia – The missed opportunities, 1994], The United States Institute of Peace Press, Washington DC.

World Bank. [Conflict in Somalia: Drivers and Dynamics, 2005], URL: http://siteresources.worldbank.org/INTSOMALIA/Resources/conflictinsomalia.pdf

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