Euro-American-African legal smackdown out of control

In July, I argued that the African Union’s discomfort with the indictment of Sudan’s President Bashir might be a turning-point in the evolution of international law. “African leaders are setting limits on global governance,” said I, because they are sick/scared of being in a “laboratory for international institutions”. Since then, there’s been a pitched battle between the AU and the West over Bashir, with the US abstaining on the resolution extending the UN mandate in Darfur in anger, and the AU condemning the ICC for deciding “to put oil on the fire” yesterday.

But now there’s a new front opening up. Rwanda has just published a detailed report accusing France of complicity in the 1994 genocide, pointing fingers at Mitterand, de Villepin and other former Gallic high-ups. That comes less than a month after Rwanda threatened to pull its troops out of Darfur when a Spanish judge accused their general of involvement in revenge killings after the genocide. French prosecutors have also been going after members of the Rwandan government, up to and including President Paul Kagame, on similar charges – the AU has, unsurprisingly, come out in favor of the Rwandans against this.

Where on earth is this all going? Check out an interview Kagame gave to the FT in early July, when the latest report was in the works. Edited highlights:

Q: So it will name names?

Yes. And hopefully our judges will enjoy indicting some of those people. There is no justice for Europe and justice for Africa that are different. And if they are to be different it cannot just be Europe extending its jurisdiction into other countries Africa if it is to be universal.

Q: So you will launch some indictments on the basis of the report?

I don’t rule that out unless there is progress on these issues.

Q: To an outsider it seems like the political tensions between Rwanda and France are being exercised through the legal system?

Legal systems are systems of government. No one will believe the French when they say it is the judge we are not concerned. Judges don’t make laws they only carry out their duties based on the laws of the country. There are problems relating to that between us and France and Spain. And probably there would be problems between us and any other country that would want to come up with this. First of all there is no basis in terms of fact and no basis in terms of process. It is hugely questionable what is meant by universal jurisdiction when it comes to basing things on their own law and extending it to other territories. One would have expected there to be an international regulatory mechanism, otherwise you will not avoid chaos. Everyone will be indicting everyone else.

That certainly seems to be an option. Of course, there are multitudinous differences between an ICC indictment (as on Darfur) and national courts claiming universal jurisdiction (as on Rwanda). Nonetheless, the convergence of these tensions – specifically the way they all seem to get tangled up in the Darfur peace operation and AU-Western relations – rather disrupts the legal niceties. Does this mean that promoting the rule of law is about to join democratization as an unacceptable foreign policy goal for Western governments? Not quite: the once and (I rather suspect) future Obama foreign policy adviser Samantha Power argues in the current NYRB that Barack should effectively launch a “Presidency of the Law”:

In his National Security Strategy for 2002, Bush used the words “liberty” eleven times, “freedom” forty-six times, and “dignity” nine times; yet people who live under oppression around the world have seen few benefits from President Bush’s freedom doctrine. Richard Armitage, former deputy secretary of state under Bush, put it best when he said, “Since 9/11 our principal export to the world has been our fear.” The gulf between America’s rights rhetoric and the abuses carried out against detainees in American custody has been fatal to American credibility. Obama needs to restore that credibility by ending those excesses, and by following through on his pledge to launch a foreign aid initiative rooted in Franklin Roosevelt’s core democratic value: freedom from fear. The United States should invest in a long-term “rule of law” initiative that takes up the burden of helping other countries and international organizations to build workable legal systems in the developing world.

Be careful what you wish for. The task may not be building legal systems, but reconciling them. Or reconciling the various leaders indicted by them…

Death of a peace operation

So, farewell then the UN Mission in Ethiopia and Eritrea (UNMEE), born after the two countries ended a massive war in 2000 and gently put down by a sorrowful Security Council on Wednesday.  It won’t really be missed, as it wasn’t one of the coolest missions out there.  It was one of the last old school, peacekeeping-equals-troops-stuck-between-two-states-that-had-a-big-war operations left in Africa, an anomaly in the age of peacebuilding-as-changing-the-DNA-of-the-country.

And closing it down was the only option, as the Eritreans had cut off its fuel supplies through their territory last December, forcing a troop withdrawal this February.  The remarkable thing about UNMEE is that it stayed in place so long, as the Eritreans began to bugger about with it in December 2005 and never really let up.  Their excuse was that Ethiopia has refused to comply with international rulings on the delineation of the border with the UN was meant to monitor, so why bother?

Eritrea had a point.  But its behavior towards UNMEE has been an important part of the trend towards greater resistance to UN missions that I blogged about earlier in July.  One UN staffer responded to my post, which argued that Darfur is now a textbook for anti-UN spoilers, by pointing out that “the Eritreans provided the Sudanese with a wonderful case study in how to ‘red team’ a UN mission through de facto withdrawal of consent by removing critical mission enablers [that’d be the helicopters, etc.] and not honoring Status of Forces Agreements”. 

So Eritrea has earned its place in the roster of UN failures (a sign that the UN will probably be back there sooner or later, as in the DR Congo, Central African Republic and maybe Somalia).  The Eritreans are trying to be reassuring that this doesn’t mean war with Ethiopia straight away, but given that they managed to pick a fight with tiny Djibouti recently, I wouldn’t get too relaxed.  Last month, I suggested in an op-ed for ECFR that the way out of this impasse is to enlarge the context by several orders of magnitude, addressing East Africa’ problems en bloc:

There is a need for an international drive for a regional security conference that could hammer out a credible framework for resolving border disputes, guaranteeing peace agreements and rehabilitating rebel groups. The African Union and UN should take a political lead. The U.S. (which sees East Africa as a front against terror) and China (which buys its raw materials) must join in. The EU could play a role in coordinating conditional financial support to back up the deal-making.

All rather grandiose, and observant readers may wonder how this proposal squares with my recent warning against “piling international institution on international institution in Africa”.  My answer would be that such a conference, involving horizontal negotiations between African governments, may be the best Plan B when trying to impose security frameworks from New York stops working.

“The whole world would fail”

After Jean-Marie Guéhenno’s comments last week on the perils of Darfur, here’s more plain speaking from a senior peacekeeper – in this case the Darfur mission’s commander, responding to a report criticizing his force…

General Martin Luther Agwai greeted the report’s recognition that the force was short of critical resources, saying that people had had unrealistic expectations. “If really you have an organisation that lacks critical resources and you expect that force to do magic then I think you are not being fair to the force,” he told the BBC.

He said many people had overlooked logistical constraints including delays at Sudan’s single sea port, and the large distance from the port to the area of operation in Darfur across land routes that are unusable during the rainy season. “People thought that things would work faster and better but the reality from the ground does not translate that way.”

But he also rejected concerns that the mission was doomed to fail, saying that it had the backing of the UN and the AU. “I’m not sure the United Nations and the African Union would want to fail because if they do, the whole world would fail. So based on that, I am optimistic.”

I find that optimism genuinely inspiring – analysts like me punch out our prophesies of doom while veteran peacekeepers get on with the actual job.  But I fear that the whole world may be keen to avoid a perception of failure in Darfur, while having no idea of how to achieve (or even define) “success”.  It’s Agwai’s task to provide as much security as he can with the resources he has.  But for how long?

Like watching a train wreck in… slow… motion…

Just when you thought it couldn’t look much bleaker for peacekeeping, a reminder that it can:

Sudan has again warned it cannot guarantee the safety of UN and African Union peacekeepers in Darfur if its president is indicted for war crimes. A presidential adviser said that if the International Criminal Court indicted Omar al-Bashir, Sudan could not be held responsible for the troops’ well-being.

Earlier this month, the ICC prosecutor asked judges in The Hague to issue an arrest warrant for President Bashir. The judges are expected to announce their decision in a few weeks’ time.

The adviser, Bona Malual, told the BBC the government was not expelling the joint UN/AU force, or even threatening the troops.

It was, he said, simply saying how Sudan would view the situation.

Peacekeeping in crisis: exactly how bad is it?

The fact that I think UN (and quite a lot of non-UN) peacekeeping is in crisis will not come as news to regular readers.  Indeed, a rapid search of my contributions to this blog over the last seven or eight months reveals that I’m not just the Boy who Cried Wolf about the future of UN ops, but the Boy who cried “Wolf!  W-w-wolf!! Really Big Wolf!!  Actually, it might be a Bear…”.  And so on ad nauseam

Earlier this year, I tried to step back and define what this time of troubles consists of, beyond the flow of bad news from Chad, Congo, Darfur, Kosovo, etc., etc.  The results of my musings were published today in that multi-million-selling glossy International Peacekeeping, under the subtle title “Peacekeeping in Crisis: 2006-08”.   For those who don’t want to spend their summer beach-time ploughing through 7,000 words of this stuff, here’s my argument in three parts:

  • Yes, this is a real crisis.  There is a school that argues that the UN is just being whiny.  It has managed to field 100,000 peacekeepers worldwide, far beyond its own predictions – and half its problems result from its own bureaucratic inflexibility, not real threats on the ground.  This is wrong.  The UN does have many internal flaws, but it is being asked to go to too many places at once, including places where peacekeeping stands no chance…
  • …like Darfur.  I argue, contrary to some optimists (including myself in an earlier, happier incarnation), that Darfur presents the UN with a systemic crisis.  Sudan’s success in blocking the deployment of a serious UN force for two years (and counting) has shown that its pretty easy to bring the UN to a halt, if you have sufficient political will and few morals.  I pick up on David and Alex’s concept of “intentional systems disruption”, which involves bringing down a complex system by exploiting its most vulnerable points – in the case of Darfur, those vulnerabilities have been (i) the UN’s political reliance on winning  consent for its operations, which Sudan has denied and (ii) its shortage of specialized assets like helicopters.  My hunch (shared by a lot of UN officials) is that Darfur is a textbook for how to block a UN operation that will be used elsewhere, weakening the whole system’s credibility…
  • …and yep, we see the UN’s vulnerabilities being exploited from the Congo to Afghanistan.  Getting all theoretical, I talk about a paradigmatic crisis for the UN: the idea of large-scale, multi-dimensional UN missions overseeing countries stumbling out of conflict may have run out of road.  That’s not only because nasty governments know how disrupt UN ops, but because the UN model for building liberal, democratic and Western-oriented regimes doesn’t make so much sense in a world defined by a fit of Western self-doubt.

Does that mean it’s all over for the UN?  No.  But, as the article concludes in a slightly bathetic fashion, we have to adjust to an environment in which UN operations can only deliver limited goods: some stability, perhaps, and a limited amount of time to do political deals and maybe get to work on early economic recovery (for guidance on that part, check out the excellent new study by my colleagues at CIC).  But not shiny and sustainable social democratic states.