When should the ICC step in?

Jennifer Trahan of the Center for Global Affairs discussed the international justice system at Wagner today. She traced the history from Nuremberg through Yugoslavia and Rwanda, and described current issues with the International Criminal Court (ICC), including its warrant for the arrest Sudan’s President al-Bashir. She displayed impressive knowledge of the intricacies and politics surrounding the prosecution of genocide, war crimes and crimes against humanity.

However, the audience was left confused about a critical issue: when crimes should be prosecuted at the international level rather than within the affected country’s own justice system. By Trahan’s own admission, the criteria are unclear. The ICC’s founding statute gives it jurisdiction when the national government is "unable or unwilling to genuinely prosecute." We can imagine situations that obviously trigger this clause: for example, when legal capacity is limited, or when accused war criminals have powerful allies. But what about ambiguous situations? A dictator’s successors may decide to grant him immunity (as Chile did for Pinochet) or a post-conflict government may decide that prosecution would hurt the cause of national unity.

The crux of this problem: the international community’s interests may diverge somewhat from the affected country’s. Both are interested in justice generally. But while the international community is concerned with the potential deterrence created by high-profile cases, national leaders in the affected country are more interested in how prosecutions might impact their country’s ability to move forward.* There is no a priori reason to think that a single course of action would serve both of these goals. When the goals conflict, the ICC statute language apparently gives the international community a trump card. The country’s interests seem to play no role in whether the ICC plays that card.

The affected country’s interests should be paramount when deciding how to pursue justice. The result of any process will be much more important for that country than for any other. Furthermore, that country will know how to reach the optimal result better than any other. One might object that a post-conflict country is unlikely to articulate or pursue a unified "country interest". Factions will still exist, with a mix of noble and less-than-noble motivations, and they may disagree on the best route forward. But that’s exactly the point. The country needs a way to heal, and part of that requires figuring out how to heal.

The international community certainly has an interest in ensuring punishment of war crimes and crimes against humanity. There are instances of clear national governance failure that necessitate international action. But the presumption should always be for the country’s leaders to decide a course of action. The international community should tread carefully before deciding that it knows best.

By: Dave Algoso

*Of course, both groups must also respond to the political demands of their various constituents. But let’s limit this discussion to the moral reasoning and accompanying public rhetoric that is used.

Democracy and accountability are messy

This week’s Economist has three articles about democracy in three different countries. They form an interesting set. Going from east to west:

Afghanistan’s Hamid Karzai will remain president without a run-off election. The second-place candidate from the first round, Dr. Abdullah Abdullah, bowed out rather than face the massive fraud that was expected in the second round. The twist: Afghanistan’s Independent Election Commission (IEC) declared Karzai the winner despite significant doubt on legality of the move, and whether the IEC has the authority to make that decision. Obama and other Western leaders endorsed the outcome. Best line: "The Taliban gleefully claimed that the election had been decided in Washington and London. Most independent observers would concur." And then: "It is hoped that the legitimacy absent from the electoral process can be ‘earned’ through good behaviour."

Next door, protesters in Iran have made a habit of turning up to officially sponsored celebrations. Thousands took to the streets in Tehran and smaller cities on November 4th, the thirtieth anniversary of the day Iranian students took 52 American hostages at the embassy in Tehran. These protests are clearly continuations of the ones that followed June’s disputed election. Key line: "The protests are unlikely to bring the government down, but its legitimacy is being questioned in a way that was once unthinkable."

And finally, many see positive signs in the political maneuvering leading up to Iraq’s January elections. The main electoral blocks are increasingly cross-sectarian. For example, Iyad Allawi (a Shia and former prime minister) and Saleh al-Mutlaq (a Sunni member of parliament) have formed the Iraqi National Movement. Their main rival: Unity, a group led by Jawad al-Bolani (a Shia and current interior minister) and Ahmed abu Risha (a Sunni leader of the Awakening movement). This is unquestionably progress — though whether it will last remains to be seen.

Blogging best practice requires somehow connecting these three stories. Forget the geographic proximity; that’s too easy. Let’s also ignore the fact that they are all Muslim countries. Here is there interesting thread: Accountability to the people. Afghanistan’s recent election debacle reinforces the public perception (and the reality) that the Afghan government answers to foreign governments rather than to its own people. That undermines every security and development effort. No amount of "good behavior" will counter it. In Iran, ongoing protests damage the regime’s legitimacy, giving moral support and political wiggle room to advocates for change within the regime. Iraq is the most interesting case: accountability to their bases can often drive politicians apart (witness the way US politicians in gerrymandered districts play to their parties’ extremes), but it may be that the need for a parliamentary coalition and the larger demand for national unity are having a positive effect.

By: Dave Algoso

US Navy as a “global force for good”?

Looks like the Navy has updated its recruitment slogan to "A Global Force for Good." Interesting. Notice how different this is from "Accelerate Your Life" and the classic "It’s not a job, it’s an adventure"? Many observers have noted that the Millennial generation of Americans is more service-oriented than its predecessors, so it’s not surprising that the Navy is looking to ride the "public service" wave in its marketing.

But what’s more interesting is how the slogan (and accompanying advertising) frames public service — and what it tries to imply about the US military’s role in the world. The US military lost its clear-cut strategic purpose when the Cold War ended. While some thought that 9/11 gave it a new mission ("Go kill the bad guys"), it looks increasingly like cooler heads and reality will prevail. "Global Force for Good" may be vague but it certainly conveys a mission larger than defending American shores or even American economic interests. If the US military moves in the direction of promoting global good, it can only be a positive development. An increasing part of their portfolio is already humanitarian work (including in many places they didn’t invade…). Some even argue for splitting this work into a separate force, which would cooperate more closely with USAID, NGOs and other international/multilateral actors.

Discussing the US military as a positive force can be unpopular at a left-leaning place like Wagner. But the US military has done some good things in the past, and every institution in society has both positive and negative effects. Most importantly, the political economy of the US is such that the military will continue to play a role in world affairs. So how can we maximize the positives and minimize the negatives?

By: Dave Algoso

Colonialism & Points of Leverage

There’s no shortage of commentary on the impact of colonialism in Africa. So I was surprised last week when I heard two comments that were new to me.*

The first came from Dr. Roselyn Akombe, a UN political affairs officer. She emphasized generational differences: Africans born after independence (including herself) are much less likely to blame the colonial powers for today’s problems. She sees this generational shift as an opportunity to dismantle the bad institutions that are colonialism’s legacy. The second comment was by Dr. Augustine Mahiga, Tanzania’s ambassador to the UN. He described a decision made by the Organization of African Unity in 1963 to respect the colonial boundaries. As dismally as those boundaries served existing communities, ignoring them would have opened the door to greater violence.

These comments struck a chord with me because they share a similar view of change: namely, that it’s more important to find points of leverage than root causes. This difference impacts how we analyze problems. Root cause analysis assumes that we can deal with a problem by identifying the few factors that cause the bulk of it. Unfortunately this ignores the other half of problem solving: the solutions themselves. If the bulk of the problem happened decades or even centuries ago, then there’s not much we can do about it now.

Dr. Akombe and Dr. Mahiga’s comments suggest a different analysis, one that starts with our points of leverage (i.e. our options and their impacts) rather than the problem and its causes. Yes, colonialism drew bad boundaries, but in 1963 the OAU’s best move was to accept and even reinforce them. And yes, colonialism’s exploitation damaged the prospects of today’s African nations, but maybe a new generation with a less vivid memory can chart a new way forward.

For development practitioners — and here’s the kicker — this would mean less time spent trying to fill the alleged gaps in policies and institutions (supposedly tackling "root causes"), and more focus on the actual tools for making positive change. I bet I can trace most of the development industry’s failings to an inability to understand its own points of leverage. But I find this sort of analysis frustratingly absent in the development literature.

* Both comments were made at a panel hosted by the NYU Global Affairs Graduate Society (GAGS).

By: Dave Algoso