Tag: ICC (Page 1 of 2)

Opting for Trials Post-Conflict? Why the Structure of Losers Matters

This post was written with Lindsay Heger, who is Associate Director, One Earth Future Foundation.

We’ve seen the rise of judicial means to bring human rights violators to trial in recent decades, both regionally and globally. Most famously, the International Criminal Court, was established after the Rome Treaty was ratified in 2002 in order to bring the most egregious state violators of human rights to to account for crimes of genocide, crimes against humanity, and war crimes (though this court has not been without its controversies, most acute of which is that the court deliberately over-targets African leaders). There are also many arguments about the effect of the ICC, including the effects that having such an institution has on individual lawyers, judges, and other officials in the practice of law. The complementarity clause of the ICC, furthermore, might be spurring domestic legal institutions to change in anticipation of possible prosecution by the Court, creating a race to the top in terms of complying with the prosecution of war crimes in order to avoid facing the ICC.

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North Korea and Hollywood: the Perfect Holiday Storm


A perfect storm is defined as an event in which a rare combination of circumstances results in an event of unusual scale and magnitude. 9-11 is a classic, and tragic, perfect storm. This December the world has witnessed another perfect storm involving the confluence of culture and foreign policy: the bizarre North Korean hacking of Sony and the scare that arrived just in time for the holidays for millions of Americans.

Not since the Danish publication of a cartoon that Muslims viewed as an insult to Islam has a confluence of this kind had such serious consequences. The Sony executives, who made the spoof film involving a comedic sendup of North Korean repression that ended in an assassination of its sitting leader Kim Jong-un, cannot be faulted for making the film that North Korea took such exception to. But by filming a scene in which the dictator’s head explodes, they crossed a line and all but invited hacker retaliation.

Sony’s internet defenses were surprisingly low, given a previous and rather damaging cyber penetration of its networks. But Sony’s greatest error was actually to take the threat of terrorism from the North Korean hackers on U.S. movie theaters showing the film seriously. Instead of standing up for freedom of expression (and protecting its investment), along with the major movie theater chains it caved. Continue reading


ICC Victory over Immunity in Recent Clash with al-Bashir

[Note:  This is a guest post by Andrew G. Reiter, Assistant Professor of Politics at Mount Holyoke College]

In 2009, the International Criminal Court issued an arrest warrant for Sudan’s Omar al-Bashir on charges of crimes against humanity and war crimes committed in Darfur and expanded those charges to include genocide in 2010.  Yet al-Bashir recently claimed immunity as a head of state and requested a visa from the United States to travel freely to New York to participate in the UN General Assembly and return safely to the comfort of his palace in Khartoum.  In a “Marbury v. Madison” moment for the ICC, the battle between immunity and the reach of international criminal law was in the hands of the US.  A strong position by the US that it could not guarantee al-Bashir would not be arrested forced him to cancel his trip; a move that significantly advances international justice and helps the ICC come of age. Continue reading


Defying Gravity: Seeking Political Balance in ICC Prosecutions



The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.
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The Tragedy of Fragmented Rebellion

Guest Post by Lindsay Heger and Wendy Wong.

In a recent and rare speech, Syrian President Bashar al-Assad dug in his heels. While nobody could have realistically expected him to simply walk away from his post or even give much ground to the opposition, negotiations seemed possible. After all, the rebels had made several recent and promising military advances. In December the Obama administration acknowledged the rebel movement as representative of the Syrian people, increasing pressure on Assad to step down. Even Russian officials, who seemed loyal to a fault, had begun showing signs of reversing course. Yet Assad’s speech seemed to ignore all these developments. Instead, he rallied Syrians to oust who he calls terrorists and criminals, while giving no indication that he planned on doing anything short of fomenting continued violence.

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Crime and Punishment in Syria

The ICRC has stated that the violence in Syria constitutes an non-international armed conflict. This is significant because it means the organization tasked with guarding and promoting the Geneva Conventions is declaring that at least portions of the Geneva Conventions (especially Common Article 3) applies to the conflict and unlawful attacks on non-combatants could be prosecuted as war crimes.

At Lawfare Blog, University of Texas’ Robert Chesney has a terrific round-up of legal questions this raises, including the “legal geography of war,” whether Assad will draw on precedent set by US targeted killings to argue that some noncombatants are legitimate targets, whether the war is already internationalized, and how far the ICRC’s view on the matter is decisive.

One other thing that should be noted: Reuters’ story on this declaration makes it sound as if heretofore atrocities against civilians were beyond judicial scrutiny, though as Chesney notes the article does point out that human rights law did and continues to apply. But in fact most of the previous violence in Syria would also be judiciable through the concept of “crimes against humanity” under the Rome Statute of the ICC. Of course, since Syria has signed but not ratified the Rome Statute, the court would only have jurisdiction if Assad or a ranking official traveled to the territory of a state party and were extradited the court, or if the Security Council were to act.  Since this appears unlikely, any international war crimes court would need to be constituted ad hoc, most likely by a regional organization. Still, governments could also try Assad or his officials under the principle of universal jurisdiction for some crimes, notably torture.


Does the ICC Need to Reconcile with Africa? Bensouda Comes Out Swinging

(Originally posted at Justice in Conflict)

Photo: BBC

Fatou Bensouda, incoming Chief Prosecutor for the International Criminal Court, has put threatening war criminals and defiant states on notice. In several recent public statements she has directly addressed two of the Court’s most significant challenges: the accusation that the Court’s credibility suffers from a “pro-Western, anti-African” bias and the related issue of ensuring state cooperation and support, particularly in executing arrest warrants.

The argument that the ICC has (so far) unjustly targeted only African states and individuals is mostly based on misperception and has become a rhetorical tool of political elites to undermine the Court. Yes, all of the situations presently under the Court’s jurisdiction are from Africa. But as Bensouda and many others have pointed out, the Africa bias criticism is baseless for the following reasons.

African states wanted the ICC. Much of the strongest support for a permanent international criminal court in the Rome Treaty negotiations came from the Africa group. That support continued after Rome and African States Parties have a high level of ratification of the treaty (although, notably, a weak level of corresponding implementation legislation).

African states need the ICC. The empirical reality is that many situations of atrocities, and those that meet the (vague) “sufficient gravity” criteria for the Court to intervene, are in Africa. Moreover, many African states have a weak rule of law that fails to deter and respond to such atrocities, and so these situations justify the ICC’s intervention as a “court of last resort.” As Bensouda defended,

“The office of the prosecutor will go where the victims need us…The world increasingly understands the role of the court and Africa understood it from the start. As Africans we know that impunity is not an academic, abstract notion.”

African states invited and welcomed the ICC. Three states self-referred their situations to the Court (Uganda, DRC, and the Central Africa Republic) and three states initially welcomed and have since exhibited a satisfactory pattern of cooperation with the Court (Cote d’Ivoire, Kenya, and Libya). Only Sudan remains resolutely defiant and given its head of state is among the accused this should prove, not disprove, the ICC’s credibility. Bensouda expressed frustration that cooperation from African states and civil society is

“not the story relayed in the media…(and) anti-ICC elements have been working very hard to discredit the Court and to lobby for non-support and they are doing this, unfortunately, with complete disregard for legal arguments.”

J’accuse! African war criminals don’t want the ICC. Accusing the ICC of a “pro-Western, anti-African” bias is a rhetorical tool of the accused themselves. Accusing an international tribunal of pro-Western bias or victor’s justice is also not unique to the ICC – Goering, Milosevic, Taylor, etc. all rejected the tribunals they faced with this grandstanding challenge. The accused cannot defend their crimes, so they choose to undermine their accusers instead and invoke hyperbolic claims of racism and neo-colonialism.

African victims and civil society want the ICC. Despite the protestations of some political elites, there is substantial support for the Court’s investigations and arrest warrants among victim communities and civil society, whose support is essential for the ICC’s legitimacy and its ability to obtain witness testimony and evidence. The ICC also engages in outreach and assistance to war-affected communities and brings some hope of justice to those further marginalized by their victimization – something that domestic political and judicial institutions have less capacity and will to do.

The primary cause for concern is not the alleged bias against African states, but that misperceptions of bias have translated into obstacles to state cooperation on arrests and manipulation of the Court as a tool in electoral contests and war-making. The continued cooperation of elites in Kenya, Cote d’Ivoire and Libya will likely depend more on the circumstances of domestic politics and elections than on principled support for the ICC. And in the DRC, there is a renewed sense of urgency for Bosco Ntaganda’s arrest after he and his supporters defected from the ranks of the DRC military and have continued on the war-path in defiance of the ICC. The “Terminator’s” arrest is only likely to happen with the support of the DRC and (possibly) Rwandan governments and militaries. But Bensouda expressed concern about Ntaganda’s tactics and the need for state cooperation on his arrest:

“This level of blackmail – which I call it – in which perpetrators are saying that if you do not drop warrants against me, I’ll continue to kill people – I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.”

On cooperation with arrest warrants, the African Union is fingered for encouraging non-cooperation with the ICC, notably because of its 2010 call for non-cooperation on the Bashir arrest warrant and supporting Kenya’s request to the UNSC and OTP for a deferral of the indictments of its nationals. But as Bensouda argues, there are signs of improvement in cooperation with the AU and indeed the AU supported Bensouda’s nomination, believing the “African bias” of the ICC was more directly linked to outgoing Chief Prosecutor Luis Moreno-Ocampo and not the mandate of the Court itself.

It is wishful thinking, however, to assume that Bensouda will engender a cozier relationship with the AU simply because she is African. It is likely that the the ICC will become a more victim-centered court under Bensouda’s public leadership and prosecutorial strategy, which may lead to more interventions and engagement in Africa and not less.


Peace vs. Justice: Is the ICC Doing It Wrong?

Photo from Still Burning

The Canadian International Council has rolled out a series of interviews and essays on “Peace v. Justice: The ICC and its Alternatives”. Far from flogging a dead theoretical horse, it’s a great renewal of a debate on the realities of the seemingly dichotomous choice between peace and justice.

Not to mention it’s a solid dose of Canadian scholarly insight and we debate very politely.

There are interviews with Kathryn Sikkink on the “justice cascade,” Leslie Vinjamuri on the role of the ICC in conflict zones, and Louise Arbour on the general debate. There are also essays on individual case studies that collectively demonstrate how peace and justice can be mutually reinforcing or come to blows when politics inevitably gets in the way. Check out essays by Mark Kersten on Libya, Stephen Brown on Kenya, Valerie Oosterveld on the Taylor trial, Rosalind Raddatz on the infamous General Butt Naked, and Simon Collard-Wexler on Timor Leste.  (More to come on Sudan, Kony 2012 and Canada’s truth commission.)
My own modest contribution is on “The Paradox of Lawfare.” Here’s a snippet:

The International Criminal Court precariously sits at the intersection of law, conflict, and politics. As such, the Court’s judicial intervention in ongoing conflicts and targeting of elite perpetrators of atrocities render it both an agent and a tool of what has been called “lawfare.” On the one hand, lawfare can refer to judicial interventions to curb atrocities through means that are coercive but morally preferable to military force. This form of lawfare is an ideal expression of liberal internationalism. On the other hand, the Court and global rule of law can be abused by states and political elites that seek to eliminate rivals and protect their own impunity. This is the paradox of the ICC – that it has so far been implicated in both legitimate and illegitimate uses of lawfare…


“Truth to Power”: Louise Arbour on Human Rights and International Justice

CBC – CP file photo

The Canadian International Council recently organized an interesting public event with Louise Arbour on her role in speaking “truth to power.” The talk is available on line at Open Canada.org. (starts around 22min mark, after the introductions) and is constructed as a dialogue with Stephen Toope, President of the University of British Columbia and notable international law scholar.

Madam Arbour is known for being outspoken on the ICC’s prosecutorial strategy, shortcomings in the human rights regime, and advocacy on the Responsibility to Protect and especially the case of Sri Lanka. Arbour’s authoritative voice on these issues stems from her professional credentials and experience: former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, former justice of the Supreme Court of Canada, former United Nations High Commissioner for Human Rights, and presently the President of International Crisis Group.

It’s worth a listen. But for those interested in just the human rights and international justice stuff here are my selective highlights on the issues mentioned above.
(Note: these are not exact quotes as i’m a sloppy transcriber).

Human Rights
There is a need for adequate institutions, specifically an international human rights court. As long as the protection of human rights is in the hands of the duty bearers – the states – not surprisingly we’re not going to get very far.

Peace vs. Justice
The timing (of the Milosevic trial) was dictated exclusively by prosecutorial considerations. Some were concerned that a peace deal would put him out of reach…What it did to the peace process was not part of my brief.

The indictment of Gaddafi was very precipitous…it’s not an unfair assumption that it might have contributed to closing some doors to a negotiated settlement….The same actors in the Security Council that referred the Libya case to the ICC have not moved on Syria…The tensions between peace and justice are very present and will remain so until and unless we segregate the justice agenda from the political one.

Joseph Kony…probably accurate that the fact that he was indicted, at the end of the day, made it impossible for him to participate in peace talks…Political negotiators cannot deliver on that. The ICC process is a parallel track. It is not negotiable in peace talks.

What we need to do is what we do in domestic systems – we make it very clear that politicians don’t run indictments.

ICC and Africa
It would have been imminently predictable that the docket of the ICC would be heavily African. Apart from the cases of Security Council referral, all the other cases have come from countries that have ratified the Rome Treaty….That is the fundamental premise…The ICC was not engaged when there was, in my opinion and with lots of evidence, massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified the Rome Treaty.

The ICC might have been better advised, rather than try to downplay (the African bias) to really embrace it and engage with African governments – open offices, be there, be very present. As opposed to staying in The Hague and be very defensive that it’s only engaged in African issues.

Cooperation of authorities in the DRC with the International Criminal Court has been problematic from the beginning. It’s very unfortunate that the ICC only has jurisdiction in the Congo since the Court was created in 2002 when in fact the most catastrophic loss of life in the Congo took place in the decade before, from 1993-2003. When I was High Commissioner (for Human Rights) I launched what we called the “mapping exercise” to try to document that decade where between 3-5 million people were killed in the east of the Congo and there’s no legal regime to deal with it. The ICC has no jurisdiction so the idea was to hand this over to the Congolese authorities to try to encourage them to launch some kind of mechanism.

Accountability there (DRC), even with the ICC in place, it’s not almost ten years since the ICC has been in place and what? There are five, six people charged?….The ICC has a long way to go before it can be reflective of its mission in that environment

War on Terror and Sri Lanka
One of the most tangible and perverse effects of the War on Terror is the treatment of the war in Sri Lanka. The last few months, in 2009, of the thirty year old war whereby the government of Sri Lanka finally eradicated the LTTE was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was under the agenda of the War on Terror. The LTTE had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. And a lot of casualties in the last few months of the war are attributable to the LTTE itself – it’s not just government forces. But the way this was achieved would not have been tolerable if it had not been under the umbrella of one of the few so-called success stories of the War on Terror.


Syria: The Exile or Justice Ultimatum


Marc Lynch’s policy brief for the Center for a New American Security, titled “Pressure Not War:” A Pragmatic and Principled Policy Towards Syria” raises a provocative possibility for ICC judicial intervention. Lynch argues that pressure should be put on Assad and his officials to either go into exile to allow for a political transition or risk facing war crimes charges at the ICC. In his own words:

“To date, Syrian officials have not been referred to the ICC, in order to keep alive the prospect of a negotiated transition. Asad must have an exit strategy, by this thinking, or else he will fight to the death. However, Asad has shown no sign of being willing to take a political deal, an in any case, his crimes are now so extensive that he cannot have a place in the new Syrian political order. He should be forced to make a clear choice: He can step down and agree to a political transition now, and still have an opportunity for exile, or he can face international justice and permanent isolation.”

The war criminal accusation is already part of the diplomatic discourse on Assad. UN Human Rights chief Navi Pillay’s statements and a UN inquiry report’s assessments concur that war crimes and crimes against humanity have been committed in the Syria regime’s siege on civilians. (Hillary Clinton also sort of called Assad a war criminal – considered unhelpful by David Bosco.)

But as we all know, Syria is not a State Party to the Rome Statute and Russia and China would block a Security Council referral of the situation to the ICC. Putting this obstacle aside, the “exile or justice” ultimatum is a frustrating position to take. Despite the sub-title of this policy brief, this ultimatum is based on assumptions that are neither soundly pragmatic nor principled.

On pragmatics, the offer of exile can no longer be viewed by war criminals as a credible guarantee of impunity – and won’t by Assad and his regime officials. Recall Charles Taylor, who abdicated his Presidency in Liberia in 2003 when the Special Court for Sierra Leone unsealed an arrest warrant for him and he took the negotiated offer of exile in Nigeria. He was arrested and transferred to the SCSL three years later. Recall the Khmer Rouge, many of whom were guaranteed exile and impunity for decades by a sympathetic Cambodian government and a passive UN; several of them now face justice and their victims at the ECCC. Political and security climates that may permit impunity in the short term will inevitably shift in the long term.

On principle, ICC officials and human rights advocates consistently balk at suggestions that the Court’s investigations and arrest warrants, and justice in general, should be used as a bargaining chip in conflict resolution. They have argued as much in the Libya, Sudan, and Uganda situations – all of which are delicate sequencing of peace and justice scenarios. In line with my belief that the “principles vs. pragmatism” dichotomy is unhelpful, such advocates also make consequentialist arguments that impunity is likely to lead to a resurgence of violence and instability. Look to the ICC’s justifications for intervening in Cote d’Ivoire and Kenya as evidence of this causal argument.

All in, the ICC cannot be viewed as credible if it endorses such “exile or justice” ultimatums. Moreover, the developing bond between the Court and UN Security Council as co-defenders of justice and peace will be severed by such unjust political bargains.

(Note: Michael Scharf provides an interesting legal analysis of the exile option, comparing Hussein and Taylor. See, Scharf, Michael P. “Trading Justice for Peace: The contemporary law and policy debate” in Atrocities and International Accountability: Beyond transitional justice.” Hughes, Schabas, and Thakur (eds). 2007.


The ICC and Kenya: In the Thick of Deterrence

Antony Njuguna / Nairobi

The big news out of the ICC today was the confirmation of charges against four of the “Ocampo Six” Kenyan elites accused of orchestrating and inciting the country’s post-election violence in 2007-2008. Ruto, Arap Sang, Muthaura and Kenyatta had their charges confirmed and are expected to appeal; charges against Kosgey and Ali were dismissed by the Court’s judges because of a lack of evidence.

The decision comes four years after the violence and almost two years after the investigation was opened by the Chief Prosecutor. In that sense it is an underwhelming “milestone” but it is nevertheless an important reminder of the potential significance of ICC justice for Kenyan politics and stability.

The Court is mindful of its impact on stability. In its summary statement today it expressed that

“The chamber is mindful of concerns regarding the precarious security situation in parts of the country. It is also attentive of its responsibility to maintain stability in Kenya, and to fulfill its duty vis-a-vis the protection of victims and witnesses….It is our utmost desire that the decisions issued by this Chamber today, bring peace to the people of the Republic of Kenya and prevent any sort of hostility.”

Stability concerns are related to the upcoming presidential election. Two of those now set to stand trial – Kenyatta and Ruto – have both expressed their intention to run in the election but it’s now unclear if that will be possible. But their rival ethnic and political factions are more likely to use domestic and international attempts to mete out justice as political engineering.

The International Crisis Group recently released an important briefing on these issues with several recommendation to the Court and Kenyan government:

“These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.”

With respect to views on the ground, two recent polls show relatively divided, but declining, support for the ICC among Kenyans and notably increasing concerns about the impact of trials on security.

The link between human rights prosecutions and specific and/or general deterrence has been hashed out by various notable academics (see Vinjamuri and Kim and Sikkink). But the Kenya situation will provide for an excellent test case of such deterrence claims for several reasons. First, there is strong and active local civil society support for the ICC. This increases the chance that future potential human rights violations will be monitored and evidence can be collected and thus make prosecutions more credible. Second, the Kenya situation came to the ICC at the initiation of the Prosecutor after years of stalling by the Kenyan government – this underscores the Court’s “court of last resort” moniker and that justice is possible in spite of politics. Third, those considered “most responsible” are high level political elites yet their domestic power has not prevented their trial. Of all the situations before the ICC, this will be the one to watch for deterrence effects.


R2P, Louise Arbour and the Responsibility to Reality

She’s cool, but she’s wrong.

I have a short piece on the Responsibility to Protect (R2P) in the October 2010 Review of International Studies Special Supplement on “Evaluating Global Orders” (that came out last week? I don’t get journals). It’s basically a reply to Louise Arbour, former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) who argued in 2008 that R2P was becoming “a duty of care in international law and practice”.

For those of you who don’t have access to the journal (or just want a brief description) my argument is that Arbour’s line of reasoning is flawed.  Arbour rests her argument on the 1948 Genocide Convention and the 2007 Bosnian Genocide Case at the International Court of Justice. She suggests that because the Article 1 of the Convention states that states have a duty to prevent and punish genocide, and that Serbia and Montenegro were found to be in breach of this obligation, that stopping genocide/mass atrocity is becoming a legally enforceable norm.  Further, she argues that this does not only suggest that neighbouring states should intervene, but any state that has the ability to intervene (Psst: she’s looking at you, Western states!) is legally obliged to do so. (Clearly, I’m simplifying here. If you’re interested, read her article for the full argument.)

I found this argument problematic for a number of reasons – all well pre-Côte D’Ivoire and Libya. (I wrote this in March 2009, revised it in spring 2010.)

The first set of critiques has to do with Arbour’s reliance on the 1948 Genocide Convention and the decision in the 2007 Bosnian Genocide Case.

First, the decision in the Bosnian Genocide Case states that states are only obliged to intervene if genocide has actually occurred or there is a plausible risk of it occurring. Fair enough, but how do we know if/when genocide is happening or likely to happen? The ICC was unable to bring genocide charges against Sudanese President Omar al-Bashir on its first attempt because there wasn’t enough evidence that a genocide (which has a very particular legal definition requiring evidence of intent) was taking place. (The ICC prosecutor was successful in having these charges laid against Bashir on appeal.)

Secondly, the Court’s decision in the Bosnian Genocide Case was far more limited than what Arbour suggests in her article. The decision states that the Court did not “purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts.” Yet this is exactly what Arbour is doing. She’s extrapolating from this case to make the case for a general obligation despite the fact that the Court was clear on where it put the limits of its judgement.

Thirdly, even if such a norm could be established, there is little guidance in either the ICJ’s decision or Arbour’s argument as to what “prevent” actually is. There is also no guidance as to who should make the determination that genocide is taking place (if states are to be held legally accountable, does it matter if there is international recognition at the emergence of a risk of a genocide occurring?) In fact, the only guidance offered in the Court’s decision is that something should be done “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Not exactly a clear road map to action.

The second major set of critiques I have for Arbour relate to the fact that even if we could establish an obligation or “duty of care” in the international community, that this still doesn’t get to the “hard part” of R2P: actually getting states to do things. It is one thing to establish a law, principle or even a norm – it is quite another to change practices. If we have learned anything about international law in the last few decades, it is that its existence rarely delivers consensus.

In other words, even if everyone can agree that R2P as a legal obligation exists, this does not mean there will be agreement as to how it should be implemented. For example, should it be done through sanctions? Direct military intervention? Monitoring? There is no answer – and that is because these are the hard questions of R2P for which there is no easy answer. More importantly, these are the complicated issues which cannot be solved through law like Arbour seems to hope. Establishing an obligation does not help us to answer the much more difficult questions related to authorization and execution.

The third part of the article (somewhat rhetorically) suggests that we need to think about R2P with a “responsibility to reality”. In other words, while there can be no question that R2P is a revolution in the notion of ‘sovereignty’, translating this into a legally enforceable responsibility is, politically speaking, taking R2P to a whole new and probably unrealistic level. R2P ultimately comes down to a difficult political discussion between states. This means it is applied inconsistently, and where more powerful states believe there is an interest. Ultimately, as mentioned above, trying to solve this political problem with law is not going to work. Lawyers may want to remove themselves from the icky world of politics so that they may establish norms and principles from above, but the “reality” is that the future of R2P will not be decided at the ICJ, but in the closed door-meetings of NATO and the UN Security Council. At the very least, R2P’s future will not be decided through law, but the imperfect political international political institutions. Perhaps the best that international lawyers like Arbour can hope for is that R2P gives us the common language in which action may be debated and plans to help solve some of the world’s worst problems may be asserted. R2P may actually work – but it is difficult to imagine that it will work in such a way as to effectively trap states into obligations into which they have not given their consent.

Short version: Arbour is wrong, I’m right. HA!


Who Will Arrest Gaddafi? Not It!

On June 27th the International Criminal Court issued arrest warrants for Libyan leader Muammar Gaddafi, his son Saif Al-Islam Gaddafi, and chief of military intelligence Abdualla Al-Senussi for:

crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

The judges believe there is “reasonable grounds” to attribute criminal responsibility to these three individuals for the deaths of (at least) hundreds of civilians during the protests. There are no allegations of the mass rapes Ocampo publicly suspected were being fueled by the distribution of Viagra, and human rights groups claim there is no evidence to support such claims yet. Ocampo indicated it’s possible that, upon further investigation, allegations of widespread sexual violence could be added to the charges.

So far there are a few issues related to the arrests warrants that are generating debate.

Skeptics of international justice claim that the ICC has complicated peace negotiations, that Gaddafi cannot be deterred, and therefore that the arrest warrants will leave him no option but to dig in his heels. For a typical articulation of this argument see Marc Thiessen’s post here – where he argues that the arrest warrants foreclose the possibility of Gaddafi’s vertical (voluntary) departure. Another variant of the skeptic position questions the timing of this judicial intervention, as Richard Falk criticizes here. He argues there is a political calculus behind the timing of the arrest warrant and essentially suggests that NATO and the ICC are colluding to wage lawfare (i’m not going to stoke the lawfare fire in this post).

Others, like Stewart M. Patrick at the Council on Foreign Relations, contend that these types of arguments present a false tradeoff of peace and justice. Human Rights Watch made a similar statement, which is consistent with their advocacy on international justice. David Scheffer makes the case at Foreign Policy to call of the missiles and send in special ops – to delink military and judicial intervention. Certainly there was never any indication that Gaddafi would negotiate and in that sense the ICC has a null effect. Realistic idealists (yeah – i just made that label up) would argue that no one expects Gaddafi to turn himself in or be deterred. But it is hoped that the ICC’s intervention will delegitimize his leadership and encourage and/or obligate other parties to arrest him. This is the real practical challenge….
States Parties to the Rome Statute are, of course, obligated to arrest Gaddafi if he enters their territory. President Bashir’s worldly travels tell that this option is unlikely. Ocampo’s statement made the most likely options for arrest very clear:

Libya has the primary responsibility to implement the arrest warrants. Libya is not a State Party of the Rome Statute, but it is a member of the United Nations since 1955. Libya has to comply with UN Security Resolution 1970…Gaddafi’s inner circle is the first option: they can be part of the problem and be prosecuted, or they can be part of the solution, work together and with other Libyans and stop the crimes.

Second option, the Interim National Council has expressed its will to implement the arrest warrants…International forces operating under UN Security Council Resolution 1973 have no specific mandate to implement arrest warrants and the Court is not asking for that…”

So there we have it. Except the rebel forces do not have the capacity and Gaddafi’s “inner circle” does not have any incentive (short of assured amnesties) to carry out these arrests. And while NATO diplomatically supports the arrest warrants, its mandate remains only to protect civilians and not to be contracted out as the ICC’s global police force. Maybe this will go the way it did for Gbagbo in Cote d’Ivoire, whereby the opposing rebel forces can grab Gaddafi with the logistical support of foreign forces and avoid a taboo form of regime change.

(Cross-posted at Global Transitional Justice)


ICC Sheriff Too Quick on the Draw

This is a guest post by Leslie Vinjamuri and Jack Snyder. Leslie is Co-Director of the Centre for the International Politics of Conflict, Rights and Justice and a Lecturer in the Department of Politics and International Studies at the School of Oriental and African Studies, University of London. She is also the co-chair of the London Transitional Justice Network. Jack is the Robert and Renée Belfer Professor of International Relations at Columbia University

Last Wednesday’s announcement that the International Criminal Court will seek arrest warrants against three senior officials in Libya will come as no surprise to Security Council members who gave the ICC authority to investigate. They may soon find themselves regretting this decision.

The responsibility to protect and the duty to prosecute both have strong coalitions backing them, but these two norms do not always go well together. The duty to prosecute removes an indispensable strategy for inducing the peaceful exit of perpetrators. Unless NATO is prepared to put boots on the ground, its ability to negotiate a palatable exit for Qaddafi and his key supporters could become essential to bringing an end to this intervention.

Libyan rebel leaders demand that Qaddafi step down, but they refuse to negotiate a settlement with him. Leaders in Britain, France, and the United States have embraced this rebel demand, blurring the line between the goal of protecting civilians and regime change. So far, though, they have been prudent. The mandate of protecting civilians has not been used to justify an expanded mission with on the ground operations to ensure a swift change of regime.

Without an international decision to invade or arm the rebels, it is hard to imagine how this conflict will end. The ICC’s announcement that arrest warrants are forthcoming will only make this worse. Qaddafi or his core supporters will be unlikely to abdicate power without guarantees against prosecution. The international coalition that backed UN Security Council Resolutions 1970 and 1973 may have boxed itself into a corner.

Any arrangement that might be made – perhaps an offer of sanctuary in Venezuela or Zimbabwe – comes under the cloud of the Charles Taylor precedent, who was flushed out from his asylum in Nigeria. This put dictators and mass murders on notice that there is no such thing as a reliable promise of sanctuary.

By severely limiting the Council’s ability to bargain with Qaddafi’s lieutenants over indictments, the Security Council’s referral of Libya to the ICC also complicates its ability to use inducements combined with economic sanctions to drive a wedge between the dictator and his fence-sitting backers. This places even greater pressure on NATO to expand its mission beyond protecting civilians to encompass regime change and ensure Qaddafi’s defeat.

Security Council Resolution 1970 was unique in signaling a desire to bargain with members of the Libyan regime. It enables the Council to undertaken further measures “including the strengthening, modification, suspension or lifting of the measures” depending on whether the Libyan authorities comply with the terms of the resolution. The trick now, as the campaign continues, is to leverage this conditionality in Resolution 1970, combined with the ongoing air campaign, as part of an integrated strategy designed to coerce Qaddafi and his cohort to cease their violent tactics and negotiate a peace with the rebels.

Striking a bargain with Qaddafi that provides him a safe exit while removing him as an ongoing threat will now be difficult since he most certainly will be one of the three candidates for arrest. But the opportunity to provide Qaddafi loyalists a carrot may be even more important than before. What can the Security Council offer potential defectors? Under the current arrangements, the Security Council can suggest a deferral of any trials of Qaddafi supporters for 12 month periods. But this may be insufficient. The Security Council would be wise to assert its continued authority over the situation in Libya in a new resolution offering leniency to Qaddafi’s aides who defect by a specific date.

It is of course entirely plausible that Qaddafi loyalists are choosing whether to stay and fight, or jump ship, based mainly on an assessment of Qaddafi’s ability to hang onto power rather than any carrots the Security Council provides. But on the margins, the UN’s carrots and sticks could matter. If sanctions are to have maximum effect, they need to combine the promise of relief with the threat of punishment.

If international justice is going to be a primary tool of coercive diplomacy in ongoing conflicts, those wielding the tool need to rethink how to exploit the leverage it can provide. A better tactic would be to create independent commissions of inquiry that may proceed with investigations, but would remain under the authority of the Security Council until peace has been secured. This would delay any final decisions about which crimes will be prosecuted, keeping open the possibility of rewarding those who switch from supporting war criminals to protecting human rights. In this way, international justice can target the most irredeemable perpetrators.

Delaying justice until conflicts stop would not be exceptional, and it may also mean better justice as well as more peace. In Kenya, for example, investigations into the post-election violence were taken without prejudice as to which court would ultimately prosecute any cases. Delaying decisions until after the fighting ends has the advantage that domestic courts might be ready to undertake trials of perpetrators, leaving the ICC to its intended role under the Rome Treaty’s “complementarity principle” as a court of last rather than first resort. Protecting civilians and holding war criminals are both worthy goals but it might not be possible to do both at the same time.


Safe Conducts, Immunities and International Crimes

The arrival in the UK of the Libyan Foreign Minister and former Head of Intelligence, Moussa Koussa, raises some interesting questions. Consider the facts: one the one hand, although Moussa Koussa has, apparently, been a force for moderation in recent years, in his heyday he was an unapologetic defender of the use of force against Libyan dissidents and other opponents of the regime. Quite possibly he planned the Lockerbie and Niger airline bombings, and, if he didn’t, he knows who did and was complicit in the crime and in other acts of terrorism by Libya.  In short, there is a prima facie case that he has committed crimes against humanity for which he should answer in the appropriate national courts or at the ICC in the Hague.  The British Government is insistent that he hasn’t been given any kind of guaranteed immunity from prosecution – and, indeed, no national government would be in a position to give such a guarantee.

On the other hand, it is clearly very much in the interests of the people of Libya that as many as possible of Gaddafi’s associates jump ship, indeed that Gaddafi and his family themselves leave the country, and it is equally clear that the possibility of prosecution in an international court makes this outcome less not more likely. Given a choice between spending the rest of his life in prison in the Netherlands or holding out in Tripoli and hoping that something will turn up, Gaddafi will probably choose the latter, even if the most likely endgame involves a last stand in the family bunker rather than continuing stalemate.  In short, building a golden bridge to allow your enemy to flee (or, more prosaically, providing a safe conduct for a journey into exile) is good realpolitik – but in this case it would also probably save lots of Libyan lives.

I suggest there is a clear difference here between the interests of the international community in seeing crimes against humanity punished as a way of deterring future criminals, and the interests of the Libyan people in removing a criminal regime as effectively and painlessly as possible. The Chief Prosecutor of the ICC disagrees; he regards punishing crimes against humanity, in simple terms, as a matter of law and order. Criminals should be tried and if convicted, punished; plea bargains if they co-operate are in order, but immunities and safe-conducts are not, even if the people most directly concerned, in this case in Libya, would be prepared to countenance them.  Even if the overwhelming majority of Gaddafi’s victims were, and are, Libyan (certainly the case, even taking into account his foreign activities) it is not up to the Libyan people to decide his fate – these are crimes against humanity.   Punishing such crimes is in everyone’s interests, including the interests of the Libyan people – there is no clash here.

I’m unconvinced. Here’s a hypothetical; one of the great achievements of the 1990s was the peaceful transfer of power in South Africa, which was based on a deal struck between De Clerk and Mandela to the effect that the crimes of the Apartheid era would go unpunished – there would be a Truth and Reconciliation Commission but no trials of those who defended the Apartheid state.  Suppose, during the negotiations De Clerk and his associates had gone to London and been arrested there (as an assertion of universal jurisdiction over crimes against humanity) to stand trial for past wrongdoings, and as a result the deal had collapsed and South Africa had descended into chaos. Would such an outcome have been in the general interest? I’d suggest not – too high a price would have been paid by ordinary South Africans for the assertion of a principle.

But I’m well aware that the position I’m arguing here is not without its downside. One of the great achievements of the rule of law domestically is to take matters of justice out of the hands of individuals. Instead of regarding crimes as personal matters to be settled by vendetta, revenge or the payment of money to compensate for blood-guilt, they become offences against the state – in the UK in the Middle Ages, the King’s courts gradually asserted control over such alternative means of resolving disputes, and we still describe criminal trials as Regina vs. the defendant.  Ocampa’s position is that the same principle should apply internationally – we are all the victims of crimes against humanity not just whichever group they were committed against, just as murder in a domestic system is a crime against the whole society, even though there is a specific victim. But is there really an international society analogous to modern domestic society, or are we still in a self-help system where individual states make their own decisions on such matters? 

The ICC Review Conference : The Belgium Amendment

For those of you who are international law junkies (– and really, who isn’t?) ASIL has a very interesting blog on the ICC Review Conference that took place over the last two weeks in Kampala, Uganda. David Scheffer, a notable scholar on both the ICC and international criminal justice, has a really interesting post summarizing most of the decisions that were made.

Of course one of the most interesting developments is, of course, the crime of aggression. However, what I find to be more interesting is the expansion of the prohibition of weapons banned in international armed conflict (including expanding bullets) in non-international armed conflicts, or NIAC – the so-called “Belgium amendment”.

This may seem relatively straightforward – the law of armed conflict has had regulation of bullets since 1868. As Scheffer himself writes:

These weapons already are included in Article 8(2)(b) for international armed conflicts, without anyone raising any real fuss, and this amendment is a logical extension of such weapons to non-international armed conflicts. So they are barely considered “new” weapons; rather they are long-standing weapons in the Rome Statute now introduced into an additional scenario of armed conflicts.

Yet, in areas of conflict such as Iraq and Afghanistan – where whether one is fighting an international or non-international armed conflict seems to change daily, this could have very serious consequences. It might affect sniper and counter-terrorism operations not only in these areas, but also within states, where the need to have one-shot/one-kill is important for security.

Additionally, incorporating the development of weapons law into the ICC Statute is an interesting new tactic for humanitarian groups. While the Belgium Amendment was formally supported by Austria, Argentina, Belgium, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland, there also has been clear support and lobbying from humanitarian organizations, particularly the ICRC.

This development also confirms the trend whereby humanitarians, unable to affect the kind of change they want to see through the ICRC Customary Law Study or the Convention on Conventional Weapons (CCW) Review Process (of which there will be a conference next year), are increasingly turning to alternative international fora. These fora have real binding powers and operate largely two-thirds majority voting system, like the voting proceedure in the General Assembly. This was the general approach of the process that lead to the Ottawa Treaty and Cluster Munitions Treaty. Western countries and militarily affected states have, by and large, favoured consensus approaches over this later system for rather obvious reasons.

It has been my understanding that the US is to issue a statement of understanding on the ICC soon (I’m a little surprised it hasn’t been out already – but perhaps they were waiting for the outcome of the Conference?) However, I have to believe that these kinds of approaches are not helping to bring the US any closer to ratifying – but perhaps the state-parties to the ICC are simply no longer inclined to care or bother trying.


The Accused

The latest Human Rights and Human Welfare roundtable is online at University of Denver’s Korbel School website. This month, I and several other human rights scholars debate the value of Julie Flint and Alex de Waal’s recent article condemning the International Criminal Court and, in particular, its Chief Prosecutor, Luis Moreno Ocampo.

My two cents:

“Let us assume that Moreno-Ocampo erred, as has been ably described, in failing to launch a full-scale investigation of the atrocities in Darfur. But why single out Darfur as uniquely deserving such an investigation?…

Let us assume that the indictment of President Omar Bashir and Joseph Kony by the court are, as Flint and de Waal say, toothless acts that only undermine peace processes on the continent. At worst, are the authors not accusing the ICC simply of upholding its mandate to prosecute the law?…

Let us assume that Flint and de Waal have accurately depicted the Chief Prosecutor of the ICC as a hopelessly abrasive, procedurally obtuse, and personally corrupt individual whose behavior has undermined morale at the ICC. Must it therefore follow that his conduct has damaged the ICC’s legitimacy beyond repair?

I doubt it, and explain why here.


ICC Issues Arrest Warrant for Bashir, But Not For Genocide

When Foreign Policy’s Morning Brief hit my inbox today, the top story was the arrest warrant issued by the International Criminal Court for President Omar Bashir of the Sudan.

FP’s header gets the charges wrong, however – Bashir is charged with war crimes and crimes against humanity, but not with genocide. The distinction is legally and politically significant – crimes against humanity include a host of horrible acts, when widespread and/or carried out systematically against a civilian population.

Genocide, however, is a crime not against individual civilians but against certain groups and requires a finding that the perpetrator carried out a series of acts with the express intent to wipe out not particular people but the group itself. Note the exact language the prosecutor had to work with, borrowed from the 1948 Genocide Convention and spelled out in Article 6 of the Rome Statute:

“For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

This is a tall order, not only because the definition of what exactly constitutes a “group” is often ambiguous, but because even if the above acts have occurred, and even if they can be linked to the political leadership, those leaders are seldom careless enough to leave paper trails demonstrating the acts were carried out with intent to destroy the group as such.

This explains why there have been only a handful of convictions for genocide in the history of international war crimes tribunals.

In political terms, this is likely to be an unpopular decision – the colloquial use of the term “genocide” as a referent to Darfur, by diplomats and activists, has overshadowed the legal meaning of the term for several years, and many people view crimes against humanity as a lesser charge (though in my mind, systematic rape and slaughter is plenty bad even when there’s no intent to wipe out a whole group). But in legal and institutional terms, the absence of genocide from the charges is a no-brainer: as a new institution, the ICC prosecutor has an interest in making a case he thinks he can win. Whether or not this is a good decision politically is about to be a huge subject of debate – see for example Kevin Jon Heller’s reactions – but let’s remember, the ICC is a legal, not a political institution. In theory.

UPDATE: Not long after I posted this (or perhaps even before I did), Foreign Policy had made a correction – the actual website now shows “crimes against humanity” as the charge.


War and punishment

Ethics and pragmatism sometimes align in matters of war and peace, and other times they work at cross purposes. Two recent examples illustrate this rather banal point:

1. Brian Ulrich calls attention to what might be charitably described as a misguided Israeli tactic for dealing with Hamas in the West Bank:

It’s long been said that Hamas is popular because of its social services. Israel’s defense establishment is now on the case:

“Israeli military officials have identified Hamas’s civilian infrastructure in the West Bank as a major source of the Islamic group’s popularity, and have begun raiding and shutting down these institutions in cities like Hebron, Nablus and Qalqilyah.

“Last week, troops focused their efforts in Nablus, raiding the city hall and confiscating computers. They also stormed into a shopping mall and posted closure notices on the shop windows. A girls’ school and a medical centre were shut down in the city, and a charitable association had its computers impounded and documents seized.


In recent months, the army has also closed down an orphanage, a bakery and other institutions in Hebron, which Israel believes are associated with Hamas. In Gaza, meanwhile, Israel and the Islamic group are observing a truce, but this does not pertain to the West Bank where the Israeli military operates freely.”

Are they serious? Having Israel attack Hamas orphanages and medical centers is supposed to make Palestinians turn against Hamas?

Robert Farley lodges an additional objection:

The motivating concept behind strategic bombing in World War II was that enemy morale would be crushed by the destruction of the infrastructure of civilian life; the Japanese, it was thought, would stop supporting their government when the United States Army Air Force destroyed the ability of that government to supply civilian services. Essentially, the point is to make the people blame their own government for their hardships.”

Rob contines

The Israelis aren’t actually blowing anything up, but the concept seems to be the same — close an orphanage, and hope that the Palestinians blame Hamas instead of Israel. Good luck with that…

I think Rob misses the point. The Israeli campaign isn’t designed to make the Palestinians blame Hamas for a loss of social services, but to deny Hamas the ability to provide social services. Now Rob is right that a major problem with the strategy is that it risks creating more of a rally-around Hamas effect; another is that it further undermines Fatah.

Writing in the daily Haaretz newspaper this week, columnist Gideon Levy calls the move against Hamas-related institutions “ludicrous.” Residents of the West Bank, he concludes, “cannot be simultaneously imprisoned, prohibited from earning a living and offered no social welfare assistance while we strike at those who are trying to do so, whatever their motives. If Israel wants to fight the charitable associations, it must at least offer alternative services. On whose back are we fighting terror? Widows? Orphans? It’s shameful.”

By moving against Hamas institutions, Israel runs the risk of increasing the popularity of the Islamic movement and, at the same time, undermining that of Abbas and his Fatah party, who are perceived, correctly or not, as the intended beneficiaries — even if unwitting and unwilling ones — of this policy.

What’s more, Hamas’s popularity does not derive only from its network of schools and charities, but is also very much a direct function of the deep disillusionment among the Palestinian people with the Fatah-led Palestinian Authority and its inability to deliver on its key promises, the central one being an independent state in the West Bank and Gaza. Some in Israel argue that the best way for Israel to block Hamas and bolster Abbas would be to halt construction in Jewish settlements in the West Bank, ease travel restrictions there and, most importantly, ensure there is progress in negotiations with the Palestinian leader.

To be blunt, the Israelis need to demonstrate to the Palestinian people that the peace process–and those advocating peace–will bring material improvement to their lives. Israeli counter-terrorism strategy, however, often does just the opposite.

The frustrating thing is how little anyone interested in peace has learned since the breakdown of Oslo, when the Israeli far right Palestinian extremists de facto conspired to torpedo the peace process. They did so not only by polarizing the environment, but by forcing policies that destroyed the hope of material benefit from the peace process.

So this is a case where moral action–responding to the plight of the Palestinian people–is also pragmatic action.

2. The opposite, unfortunately, is true in Sudan. Recall that the ICC has issued a warrant for the arrest of Sudanese President Omar al-Bashir on charges of genocide. China, an increasingly close ally of Sudan, is part of an effort to suspend the ICC indictment.

But the indictment should be suspended, as it complicates already struggling attempts to deal with the situation in Darfur. Proceeding with the indictment backs Bashir into a corner, reduces whatever incentive he has to sign onto any future agreement, and renders such negotiations even more difficult. The African Union is basically right that:

“hard-won gains made in the search for peace and reconciliation in the Sudan” could be jeopardised.

Foreign ministers of the 15 countries currently serving on the AU’s Peace and Security Council are expected to meet in Addis Ababa, the Ethiopian capital where the AU is based, next week.

The charges against President Bashir put African countries in an acutely difficult position, says the BBC’s Liz Blunt in Addis Ababa.

They supply almost all the troops for the joint AU/UN peacekeeping force in Darfur, and are also the countries most likely to be called upon to carry out any arrest warrant, she says.

It also threatens to undermine the ICC itself, as it can’t do much of anything to enforce its writ.


New “crimes against humanity”?

A few weeks ago, ABC News (Australia) reported the following from AFP:

“Producing biofuels today is a crime against humanity,” UN Special Rapporteur for the Right to Food Jean Ziegler told Bayerischer Runfunk radio.

Here’s the logic: Using biological materials (like corn) for energy production increases global food prices because it increases market demand. Biofuel production also increases competition for arable land and potentially encourages developing states to grow crops for profitable energy production instead of necessary foodstuffs. Some American farmers are apparently switching production from soy and wheat to corn.

Incidentally, this is not a new claim by Ziegler. He expressed the same view at UN headquarters last October, as reported by the BBC. At that time, Ziegler called for a 5 year moratorium on biofuels so that new technologies can use agricultural waste instead of crops.

Play around with google for a short time and it is apparent that various political figures are starting to play fast-and-loose with the phrase “crime against humanity.” On April 16, AFP reported:

“The real crime against humanity would be to just cast aside biofuels and push countries struggling with food and energy shortages towards dependency and insecurity,” [Brazilian President Luiz Inacio] Lula told the conference in Brasilia.

So, in this case, an action and its opposite are both described as a “crime against humanity.”

The Rome Statute, which created the International Criminal Court, provides a broadly agreed definition of “crimes against humanity.” While the scope of the Statute is fairly comprehensive, I don’t see that it would include biofuel production — or nonproduction, for that matter. Even the catch-all category covers merely “acts when committed as part of a widespread or systematic attack directed against any civilian population”:

Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Over the years, domestic and international critics of American use of “depleted uranium” weapons have characterized this practice as a “crime against humanity.”

Hmmm. That actually seems like a more serious place to start a debate.

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