by hilzoy
Remember these kids?
They’re some of the Night Commuters, children who walk from their parents’ farms to the nearest town every night in order to avoid being kidnapped by the Lord’s Resistance Army, a brutal and more or less insane group that has been terrorizing northern Uganda for almost twenty years. (I wrote about them here.)
Finally, they may get a chance to sleep at home:
“The government and the rebel Lord’s Resistance Army last night signed another landmark agreement on Comprehensive Solutions to the Northern Uganda conflict. (…)
The agreement on comprehensive solutions handles issues of participation in national politics, system of government, inclusiveness in participation in the government, ensuring equal opportunities, participation in state institutions, the judiciary, security organs, Internally Displaced Persons, reconstruction of Northern Uganda, land and restocking of cattle in the war affected areas.
“The parties agree that members of the LRA who are willing and qualify shall be integrated into the national armed forces and other security agencies in accordance with subsequent agreements between the parties” the draft copy obtained by Daily Monitor indicates.
The two parties also agreed that the children of the departed LRA combatants shall benefit alongside other conflict-affected children from the Universal Primary Education and Universal Post-Primary Education and Training. (…)
On the system of governance, the parties agreed that government shall, through the Equal Opportunities Commission, review and assess the nature and extent of any regional or ethnic imbalances and disparities in participation in central government institutions and shall take all necessary steps to remedy any anomalies.
The parties affirmed the principle of proportional representation of all the regions in the armed forces and other security agencies as a guarantee for sustainable stability in the country.
The two groups also agreed that recovery programmes for Northern Uganda are implemented expeditiously and where necessary “fast tracked” in order to respond effectively to the post -conflict needs in affected areas.”
This is a serious agreement that addresses a whole host of issues that might otherwise undermine a ceasefire. It is a wonderful, wonderful thing. I hope it holds.
There is one little sticking-point, though. Jonathan Edelstein:
“The talks have now adjourned to May 11 to address amnesty from the international war crimes charges against five key LRA leaders. This has proven an obstacle on a number of past occasions necause the Internatonal Criminal Court prosecutor’s office, which is the sole body authorized to withdraw the indictments, has declared that it won’t honor any amnesty agreed by the Ugandan government. With peace so close, and with a Ugandan accord potentially critical to other peacemaking efforts in the region, now is the time for the ICC to change its mind and, if necessary, participate directly in the Juba talks. Whatever the LRA’s atrocities, and they are both real and extreme, the international community’s abstract need to punish them does not outweigh what may be millions of central Africans’ best chance for peace and stability.”
He’s absolutely right. I am happy to see bad people go to jail (after being convicted in fair trials.) I would be very happy to see Joseph Kony locked up for a long, long time. He plainly deserves it. But if the price of seeking his conviction is a continuation of a war that has gone on far too long, and cost far too many people their lives, their limbs, and their childhoods, that’s not a price worth paying.
One of the most inspiring experiences I’ve ever had was traveling around Mozambique in 2000. That was eight years after the end of a similarly horrendous civil war, in which infants were nailed to trees and people were boiled alive and child soldiers roamed the countryside dealing destruction. That civil war ended with the reintegration of the truly appalling Renamo into Mozambican society and politics; it just became the opposition political party.
No one I talked to was inclined to minimize what had happened, but for precisely that reason no one thought that bringing the perpetrators of war crimes to justice would have been even remotely worth having the civil war continue, even for a day. They had enough to do picking up the pieces of their country, trying to deal with the roughly 500,000 land mines that were strewn about, the many, many wounded and traumatized people, not to mention the HIV from which the civil war had protected them (when virtually no one dares to set foot in your country, one of the very few benefits is a low HIV rate), but which a lot of refugees had brought back with them.
I hope that Uganda and Mozambique, along with the rest of the world, reach the point at which the likes of Joseph Kony can be brought to justice without plunging the country back into civil war. But I don’t think that insisting on bringing him to justice now is the way to get there.
Could they theoretically withdraw the indictment now w/o actually committing to honor an amnesty forever?
How much suffering is caused by people’s failure to recognize, to grapple with, to understand viscerally how bad war is? “Sometimes war is necessary,” you hear, like that’s something we needed to be reminded of. And sometimes it is. But it’s bad, it’s terrible. It tears up people’s lives, it kills little children, it destroys the conditions of ordinary happiness. There’s nothing naïve about being anti-war, even reflexively anti-war. It’s those who expect good things to come from something so intrinsically awful who are, more often than not, the naïve.
But mightn’t such an amnesty encourage more power-hungry lunatics to commit crimes against humanity in future, if they can expect to get away with it? (Backwards-looking retribution isn’t the only reason to want the likes of Kony punished, after all.)
I was with Richard for a minute or two – amnesty just feels so viscerally and fundamentally wrong.
But then I realized that the likes of these LRA leaders are never going to be deterred by the ICC or any similar international organization. Heck, the ICC would get the vapors if someone suggested Nuremburg style trials followed by quick and efficient hanging for the guilty.
Tyrants have nothing to fear from our current international organizations – not serious intervention from the UN while committing their atrocities, and in this day and age not serious punishment after the fact. They may have to worry about dying of old age before their trial is complete. Our international organizations are toothless.
So whatever local solution puts the quickest end to this is the best answer. Hopefully those guilty of the worst atrocities will meet with untimely accidents in the months and years to come.
What Richard said. Think about Charles Taylor. He agreed to step down from the presidency of Liberia and get political asylum in Nigeria in return for not meddling in Liberia.
Well of course he meddled in Liberia. Only sending him to the jurisdiction of the Sierra Leone Court (and subsequently to the Hague) got him to stop.
Kony has broken his word many times before. I would trust him as far as I could pick him up and through him.
Re the ICC: Uganda requested their assistance in this matter. The threat of prosecution by the ICC could only have had a salutory effect.
OC Steve: The ICC is a whopping five years old. They have indicted people in Darfur, Uganda and the DRC. How about we give them a chance?
I agree with Jonathan Edelstein, hilzoy, and Helena Cobban (another blogger who wrote about this)–justice is important, but it’s less important than stopping a horrendous war.
As for bad people getting away with things, well, Kissinger is still running around loose.
I’m sorry, but this just strikes me as an
ugly precedent.
I’ve had this discussion and the one question that those who favor the amensties have never answered is this:
What do you say to the next thug like Joseph Kony, Foday Sanko or Augusto Pinochet when they engage in atrocities like this and say “Joseph Kony got an amnesty. Why not me?”
This is not actual peace. This is clemency extorted under duress. If the Uganda government did not want the ICC to get involved, then they shouldn’t have called them.
Randy: The ICC is a whopping five years old. They have indicted people in Darfur, Uganda and the DRC. How about we give them a chance?
Given its predecessor, no thanks.
Since 1993 the ICTY staff (of 1,200) has gotten through proceedings for 100 indictees. Trials drag on for years – some manage to die a natural death before their trial is done (or starts). Maximum sentence in the end is life. All that for only $136M a year.
Meanwhile those charged and waiting their turn or on trial are just living a life of pure hell:
The indicted are housed in private cells which have a toilet, shower, radio, satellite TV and other comforts. They are allowed to phone family and friends daily and can have conjugal visits (Serb general Nebojsa Pavkovic became a father at the age of 59 as a result of one such visit). There is also a library, a gym and various rooms used for religious observances. The inmates are even allowed to cook for themselves. All of the inmates mix freely and are not segregated on the basis of nationality.
I know if I was a tyrant set on genocide or other atrocities that would certainly make me think twice.
I wonder whether the ICC could promise a conditional amnesty, such that, as soon as Kony breaks the peace agreement, which seems very likely to happen, he would lose his amnesty.
OCSteve — trials drag on for years in America too; it would manifestly contradict the principle of innocent-until-proven-guilty if people awaiting trial were housed under harshly punitive conditions; and $136 million is peanuts compared to the size of the US or EU budget.
OCSteve,
The ICTY was no more the ICC’s predecessor than your community’s small claims court was. The criteria on which they were developed were completely different and your comparison is really without foundation.
Have you read the Rome Statutes that established the ICC? If you wanted to be intellectually and geographically honest in your comparison, then you should consider the successful prosecutions by the Special Court for Sierra Leone, the court which will try Charles Taylor or the International Criminal Tribunal for Rwanda.
Randy: I take your point – but I have little doubt that is what it will “grow” into. So let me rephrase: IMO the ICC will grow over the next decade to be a huge overstaffed organization that is slow, inefficient, and has more concerns about image than about justice. It is the nature of the beast IMO.
OC Steve,
For five years they have moved carefully and thoughtfully in their investigations.
They appointed a chief prosecutor with excellent credentials, whose previous role had been as Director of the Argentinean branch of Transparency International. They have defied the claims of recklessness that the Bush administration has repeatedly made.
I’ll judge them by their actions.
“It is the nature of the beast IMO.”
I assume by “the beast” you mean “international organizations” rather than “courts”….I’m a little cynical about the ICC’s prospects, but some things are worth trying. And I am not especially friendly to the idea that trials are worthless if you don’t get to execute someone.
Yeah, $136 million out of a budget of over $2.5 trillion seems like kind of a bargain.
Randy: I really disagree, despite the fact that (as I said) I personally would like to see Kony behind bars. I think they should make any sort of deal contingent on his not taking up arms again. And I don’t worry all that much about the precedents: after all, nonprosecution of people like him was the status quo for most of human history.
Also, as I said above, there are precedents for this sort of thing working.
Hilzoy,
What guarantee do they have that he won’t take up arms again?
You should worry about the precedents. where does this stop? Where does one finally say, enough?
Randy: I think they should say that the indictments come back into force if he takes up arms again.
Impunity is the standard here, not prosecution. If the precedent is: lay down your arms, don’t pick them up again, and you might get off scot free, I’m OK with that, given the alternatives.
I’m not. All the next lunatic like Kony has to do is set up his own army, become a big enough force and then extort an amnesty.
I don’t think the ICC should cut permanent, binding impunity deals. I do think there’s a place for prosecutorial discretion & deference to the wishes of the people who have suffered & will suffer the most under Kony–some way for the victims to say: “I’m not pressing charges, not right now”. This is somewhat against the idea of universal jurisdiction, that the war criminal is “the enemy of all mankind”. But if, 5 years from now, assuming the statute of limitation haven’t tolled & it’s not going to scuttle the peace accords, I see no reason to honor this deal.
I see this as basically analagous a situation where a terrorist has taken hostages & you’re trying to talk him out of shooting them. Saving their lives is the highest priority right now, but after they’re safe you’re not honor-bound to honor the “deal” you cut with a murderer under extreme duress.
Hilzoy,
Actually, there is some precedent to this of a sort and that was Charles Taylor as I cited above.
Randy: They have defied the claims of recklessness that the Bush administration has repeatedly made.
Let’s go back to your first response which was how about we give them a chance. I think you made a good case for that. I’m just not optimistic. They really have not done anything yet beyond issue a few indictments. Let’s see how it looks when they have cleared 100 cases, my fear is it will be as bad as the ICTY. Your point that the ICC is not based directly on the ICTY is valid, but IMO the outcome will be much the same.
Tom: it would manifestly contradict the principle of innocent-until-proven-guilty if people awaiting trial were housed under harshly punitive conditions
I think that would describe the situation of many people in the US system awaiting trial right this moment (those denied bail). I guess what constitutes “harshly punitive conditions” is going to differ from one person to the next. But I’m not sure what satellite TV, conjugal visits, and other “comforts” has to do with the principle of innocent-until-proven-guilty, especially when we are discussing people indicted for atrocities.
Can any of the house lawyers throw out a guess on how long someone denied bail may sit in an American jail cell awaiting trial? What is the worst case you ever heard of for charges less than murder? I think I have heard stories of close to 2 years for things a lot less serious than murder but I can’t substantiate. How would the county jail compare to the ICTY facilities?
$136 million is peanuts compared to the size of the US or EU budget
Keep in mind that this court is dealing with one atrocity:
-Coming up on its 14th year.
-Staff of 1,200. (I’m sure it grew over 14 years.)
-Two year budget for 04-05 was $272M. I don’t have the figures going back 14 years. Let’s assume it started out a lot less 14 years ago, and that the 06-07 budget will be more than $272M. $1B total is very low I think, but let’s go with that.
-Proceedings complete for 100 out of 161 people. Out of the 100, 36 cases were terminated due to the indictment being withdraw or the person dying. 11 were transferred to local courts. At best they took 53 trials to completion.
A staff of up to 1,200 averaged 3.8 trials per year at a cost of $18.9M per trial.
Of course this is just an estimate on my part using data from Wikipedia. The staffing is now 1200 – say an average over 14 years is 800 or something. The 3.8 trials per year is accurate (not accounting for those who died in the middle of the trial), and the $18.9M per is very low I’ll bet. A model of efficiency.
I’d love to meet you all back here in a decade to compare and contrast the ICC’s record. IMO it will be very similar.
Katherine: I assume by “the beast” you mean “international organizations”
Right – I no longer have any faith in international organizations.
I am not especially friendly to the idea that trials are worthless if you don’t get to execute someone.
I am not especially friendly to the idea that men carrying out genocide, ethnic, cleansing, turning young boys into killing machines, the worst atrocities imaginable – these men will never face even the possibility of a death sentence. Do they get satellite TV and conjugal visits for their life sentence?
I just saw “Blood Diamond” for the first time Saturday. Maybe that is what is driving me in this thread today.
The WHO, UNICEF and UNESCO seem to be working fine. /snark>
OC Steve,
Justice moves very slowly for the sake of accuracy. Very speedy justice is usually reckless.
Your point that the ICC is not based directly on the ICTY is valid, but IMO the outcome will be much the same.
Based on what? The ICTY, a comparison that is without merit.
a comparison that is without merit
No comparison at all can be made between this:
ICTY is a body of the United Nations (UN) established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their alleged perpetrators. The tribunal is an ad-hoc court and is located in The Hague in the Netherlands.
And this:
ICC was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression
…
The official seat of the ICC is in The Hague, Netherlands
…
the ICC is legally and functionally independent from the United Nations. Nonetheless, the Rome Statute grants the UN a clear role in relation to the Court.
…
The Court cooperates with the UN in many different areas, including the exchange of information and logistical support.[37] The Court reports to the UN each year on its activities
One was a temporary tribunal. That means we can hope it finishes its business some day. The other is permanent.
One is a body of the UN, the other is tied at the hip to the UN.
Both exist to try war crimes at the international level.
I’m really not sure why you insist there is no comparison at all between the two organizations. IMO the best we can hope for is that important lessons learned setting up the ICTY will be applied setting up the ICC.
Personally, I favor the ICC, as a sort of long-term investment. My views on this particular case notwithstanding, I think it would be a wonderful thing if people were actually prosecuted for certain very serious sorts of war crimes. I expect that it will take a while to get this right, and for the relevant norms to be set in place, and so I don’t expect it to work well for a while, but I do think that given some level of commitment, we will get it right eventually. And so I say: let’s start now. With all the usual safeguards: for serious war crimes, impediments to frivolous prosecutions, etc.
I’ll spare you the reasons why I’m opposed to capital punishment but I think they’re pretty defensible and you are surely aware that plenty of people feel strongly about that….
As to the rest–there is plenty of basis for cynicism; this international law/human rights stuff can seem like a real pipe dream given the world we live in. The UN is a highly dysfunctional organization, and in general I tend to find efforts to accomplish these goals in national courts more promising.
And yet, and yet. Cynicism is justified but easy. Some really great things were pipe dreams that had little realistic chance of success once.
I had a class with Richard Goldstone in law school and I’ve never been able to be completely cynical about these things since then. Goldstone was a prosecutor at ICTY and a major proponent of the ICC–he also had a truly important role in the peaceful (well, more peaceful than it could have been) transition away from apartheid in South Africa as a judge. At risk to his life at times, and one of his fellow Justices on the South African Constitutional court had been tortured and then almost killed in a bombing by the apartheid government….That country’s court and Constitution were a crazy pipe dream once. I wouldn’t give great odds for the ICC changing the world much for the better, but it seems worth a shot, and that the U.S. is actively trying to scuttle it is sad to me.
I’m really not sure why you insist there is no comparison at all between the two organizations.
OC Steve,
You’re cherry picking. As I said before, the Special Court for Sierra Leone has been successful. It was created by the Government of Sierra Leone and by the UN. The International Criminal Tribunal for Rwanda was also set up by the UN. 25 of 28 have been convicted. Two successful tribunals to one that has been somewhat successful, albeit chaotic. Many courts would crave those types of results.
Where Does It End?
Hilzoy is having a good discussion here about a possible amnesty for Joseph Kony, the criminal against humanity, indicted by the International Criminal Court (ICC) and responsible for the creation of and many of the atrocities committed by the Lord’s
Also, the idea that these courts exist to get war criminals off easy is weird. What would you prefer? For various reasons I actually would prefer a fair trial by their own country’s courts even if that meant a possible death sentence. But that’s often not an option on the table, for various political reasons. Often the options are impunity, a show trial, or worse…Do you know what happened to Charles Taylor’s predecessor? It’s actually a little too gruesome to print here; click that link and scroll down to the last paragraph. Compared to that, or a comfortable retirement, the Sierra Leone trial looks pretty damn good.
Also, the idea that these courts exist to get war criminals off easy is weird. What would you prefer?
Some possibility of the punishment fitting the crime. The Nuremberg model still seems like the best to me.
Rudolf Hess spent the rest of his life in prison until he committed suicide.
Sure. Their punishment for the most part fit their crimes. Others got life. Dönitz got only 10 years. Konstantin von Neurath got 15 but was released early due to ill health. Most of those found guilty of “crimes against humanity” got death and the sentence was carried out expeditiously.
Do you think that the death penalty should not have been an option at all? Because that is all I am saying – I think it should be an option in these cases, not taken off the table before the court is even operational.
Taylor’s trial begins next month. Any thoughts on how long the Special Court for Sierra Leone will take for the trial of just him? How about the other 9, some already going on for years?
crimes against humanity and other war crimes, including terrorizing civilians, collective punishments, unlawful killings, crimes against humanity, sexual violence, physical violence, use of child soldiers, abductions and forced labor, looting and burning, and attacks on UNAMSIL personnel.
They face being sentenced to prison or having their property confiscated if found guilty. Are you truly happy that the death penalty is not available for any of these monsters? The punishment for some could be having their property confiscated!
So the central argument really does seem to be execution. I understand that a lot of people disagree with me about the death penalty but it’s odd to me that you’d be actively contemptuous of the abolitionist view.
Briefly: I recognize that retribution is a legitimate purpose of punishment, but I think it’s legitimate as a means of passing moral judgment over the crime, not as vengeance against the criminal.
This rules out things like sentencing rapists to be raped, and sentencing Saddam Hussein to be tortured in the way his regime tortured people.
Execution as a punishment for murder seems different, I think, because killing is the ultimate way to incapacitate someone–to be absolutely sure that they’ll never kill anyone else ever again. Sentencing someone to be raped or tortured doesn’t have that effect; it’s just sadism.
But if execution is not necessary to ensure that a person never kills again, then what is it’s purpose? It’s not a deterrent, and it’s not the legitimate form of retribution–you don’t condemn killing by killing.
Sure, you’re killing a bad guy, but I very strongly reject the view that the morality of actions depends solely on whether the perpetrator and victim
Now, I do think there’s something to be said for the country where someone committed his worst atrocities holding the trial. And I see why people in, e.g., West Africa would feel that the only certain way to permanently incapacitate someone like Taylor was to execute him. I see why people in Iraq would feel that way about Hussein. So for all my misgivings about the death penalty, as I said, if a fair local trial is possible then I think the ICC should defer. But it’s very often not possible, and I completely understand why the ICC doesn’t want to execute anyone.
In any case, what is the alternative? “the Nuremburg model” actually is an ad hoc court set up by the war’s victors. There is no reason to believe that’s going to be intrinsically preferable to something more institutionalized–those victors won’t always be especially careful about the sort of court they set up. You seem to prefer an alternative of “nothing” to the ICC and I do not think you’ve justified that at all.
it’s odd to me that you’d be actively contemptuous of the abolitionist view
Hmm. Not sure what that might have been. Sorry if I came across that way, it was not my intent.
If we back up just a bit, I’m not discussing the death penalty as an abstraction, rather in the specific context of an international tribunal/court trying people for crimes against humanity.
When it comes to the death penalty in the US, I am ambivalent at best. I believe in it as a punishment for first degree murder (premeditated and malice aforethought) when guilt has been established beyond dispute. “Beyond dispute” is where it gets dicey, I know. But in cases where there is clear DNA evidence, multiple witnesses, video, etc. then I agree with the death penalty. I don’t agree with it in cases where the evidence is circumstantial or shaky at best. If I could wave my magic wand and redefine application of the death penalty for all 50 states I would make it applicable based (somehow) on the quality of the evidence as well as the crime committed.
Now carrying that forward and coming back OT – in terms of these types of events in my lifetime (Bosnia, etc.) there seems to be little doubt concerning guilt, at least for the major players. There are usually many many witnesses, sometimes news accounts, sometimes a paper trail, etc. Participation of individuals in specific events is often pretty well documented even while events are still going on. That is not to say that they should not have a fair trial, they should. But given the nature of their crimes, and the relative confidence that the correct verdict will be reached – then taking the death penalty off the table from the start makes no sense to me.
You seem to prefer an alternative of “nothing” to the ICC and I do not think you’ve justified that at all
I prefer that the local government handle it. If there is truly a need for the ICC then I would like to see it be efficient and have the ability to sentence the worst of these monsters to death.
Going all the way back up top – I agreed with Hilzoy in this particular case to just get the fighting stopped now whatever that takes. The ICC can do nothing to either properly punish these atrocities or deter future tyrants. Someone setting out on this course is not going to stop and reevaluate over concern of what the international community might do to them. Coming back full circle:
Tyrants have nothing to fear from our current international organizations – not serious intervention from the UN while committing their atrocities, and in this day and age not serious punishment after the fact.
as I said, if a fair local trial is possible then I think the ICC should defer.
The ICC can only start a trial if there is no local trial.
From their website:
as I said, if a fair local trial is possible then I think the ICC should defer.
I might add again that Uganda referred the case to the ICC precisely becasue they did not feel that they could conduct a fair trial.
I’m not sure I believe that Kony and the LRA can be trusted to do anything beyond what they have been cheerfully doing for over a decade. While the promise of peace in exchange for dropping the ICC indictments is tempting I can’t help but remember the parable of the lady and the snake. You can’t trust the snake to be anything but a snake.
The weight of the ICC isn’t a trivial thing. The peace talks in Uganda only gained real substance after the indictments came down. Kony took them seriously, he takes them seriously now otherwise he would not want them to disappear. But if the ICC is to truly serve as an independant body, one capable of, to trot out David Crane’s phrasing, standing up to the beast of impunity, it can’t be used as an idle threat. Every time it indicts and then withdraws that indictment it loses another fraction of it’s credibility. In the long run pulling the indictments for the LRA will be profundly damaging to the ICC and the movement it represents.
The hobson’s choice here is that the short term gain to the people of Uganda (and the surrounding nations – the LRA is a remakably efficent exporter of chaos) may outweight that. Alot hinges on whether we can trust a snake to be anything but a snake.
(Short disclaimer, my Atrocity Law class discussed this question at length last summer with Luis Moreno-Ocampo.)
As for the ICC in general, funny thing, the Rome Statue was in no small part a US creation. One of the key men involved in its drafting was Henry King, former Nuremburg prosecutor. It’s much closer in some ways to the so-called “Nuremburg Standard” than either the ICTY or the ICTR. And any attempt to predict the fate of Charles Taylor based on the ICTY is simply laughable. The ICTY’s great flaw was that it started with the low level thugs and worked its way up to the great villians. It was assumed that success with the small fry could be used to help build cases against the higher ups. It didn’t work out that way and the SCSL learned from that, very deliberately so. Virtually the entire operating structure of the SCSL, as well as the prosecution strategy was designed to avoid the ICTY’s mistakes. Instead of focusing on the low level offenders the Chief Prosecutor build tight cases against a handfull of the very worst. Before making sweeping statements about what “international” bodies do, try actually informing yourself about them.
Using the ICTY to predict the course of the SCSL case against Charles Taylor is like using the collapse of the ’69 Cubs to predict the perfromance of the ’04 Red Sox, on the theory that they’re both baseball teams.