05 March 2009

No justice, No peace

Last week I went to my first Millennium Development Goals Lecture in Trinity of the new year. I've been attending the MDG series on and off for the last two years and have seen some pretty interesting speakers, Cynthia Enloe and Susan George being two that stood out; lectures are free and normally attract an interesting cross-section of academics, professionals and the underemployed with too much time on their hands and a penchant for rambling self-serving questions.

Last week's lecture was given by Phakiso Mochochoko, a lawyer form Lesotho and a Senior Legal Advisor at the International Criminal Court, and was a general analysis of the role the MDGs play in advancing Human Rights. Although none address Human Rights specifically, he argued that the two topics are inadvisable, and touched on a few specific areas of interest. While the talk itself was good, it was the following Q&A session that will stick in everyone's mind, possibly the most animated and almost hostile session I have seen in the MDG series.

Although Mr Mochochoko didn't spend too much time on specific cases taken by the ICC itself, the Q&A session was dominated by questions highlighting the perceived failures of the Court. It kicked off with a worker from Troicaire highlighting the situation in Sudan, where the case being brought against President Omar al-Bashir had resulted in a government crackdown on external aid agencies working in the region. While Mr Mochochoko wouldn't accept that the work of the ICC was directly to blame for this crackdown, arguing that there were many contributory factors behind the scenes, he did accept that President Bashir had used the ICC case as a convenient excuse to act against external agencies that were witness to his actions against the people of Darfur.

He faced further criticisms from an Algerian in the audience who took the ICC to task for not acting against criminal behavior by Western leaders, or regimes supported by the West. He specifically raised the brutality of the Algerian government, as well as the recent actions of the Israelis in Gaza, and also the US invasion of Iraq. Mr Mochochoko pointed out that all three countries highlighted had signed the Rome Statute of the International Criminal Court, but had not ratified it, meaning the ICC has no jurisdiction over those countries. The actions to date taken by the ICC in Uganda, the Democratic Republic of the Congo, the Central African Republic and Sudan, have all occurred in nations that have ratified the Rome Statute. It is powerless to act outside of its jurisdiction.

In fact while both Israel and the US had signed the Statute in 1998 one of the first acts of the Bush administration in the post 9/11 world was to announce its withdrawal from the statute in the run up to the invasion of Iraq, clearly indicating it was concerned over the legality of the war and the prospect of future war crimes cases being brought against Bush, Cheney, Rumsfeld et al. This fear of international censure was not unique to Bush, for although he originally signed the Statute as President, Clinton never pushed for ratification of the act by Congress, and to date Obama has shown no signs of bringing the US back to the table. Thus the prospect of America ever being held accountable by the International community for its actions are very, very slim.

While Mr Mochochoko acquitted himself well during the Q&A, it is interesting to note that the first response of President Bashir to the arrest warrant issued yesterday by the ICC was to completely expel a large number of aid agencies from Darfur, including Oxfam and Medecins Sans Frontieres, exactly as predicted by the audience member from Trocaire.

The conflict between the pursuit of justice vs the pursuit of peace has been highlighted in the extreme here, the ethical dilemma of the cost of bringing perpetrators of genocide to justice in the absence of a mechanism to prevent further resulting atrocities being inflicted upon the victim population goes unanswered by an international community unwilling to create such a mechanism. Although the African Union has placed peacekeepers in the region they have been largely ineffectual, and as long as the west declines to put pressure on China, Sudan's biggest trading partner and only political ally, to effect change in the region the ability of the ICC to act effectively is hamstrung by the collateral damage its actions inflict.

The ICC is stuck in a Catch-22 situation created by the inaction of the West; calls for it to scale back its pursuit of justice for fear of reprisals are misdirected and provide an opportune smokescreen behind which our complacent governments can wring their hands and absolve each other of the guilt their continued inertia generates.

Links
This year's MDG series in TCD
ICC arrest warrant
Expulsion of Aid Agencies
NY Times last year on the dilemma of Justice vs Peace in Darfur

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