Posted by John Prendergast on Jul 17, 2012 | Original article
A version of this op-ed originally appeared on The Hill’s Congress blog.
In her first month as the second chief prosecutor of the International Criminal Court, or ICC, Fatou Bensouda is facing myriad challenges that threaten to undermine the slowly developing architecture of international justice. No obstacle is greater, arguably, than the primary Achilles heel of global accountability: the lack of a coherent or consistent strategy for apprehending war crimes suspects for whom international arrest warrants have been issued. In the absence of a global police force empowered to execute warrants issued by the ICC or other ad hoc tribunals, the key variable becomes whether capable states or multilateral entities are willing to take on this responsibility. Political will, therefore, is a wild card that has major impacts on each individual case.
This gaping hole in the international justice system has major impacts on ongoing human rights crises, none larger than the atrocities that continue to be committed in Congo, Sudan, and areas affected by the Lord’s Resistance Army. The failure to arrest key actors in these three cases cements a climate of impunity that leads to further cycles of atrocities. Sudanese President Omer al-Bashir of Sudan, LRA chief Joseph Kony, and Congolese warlord Bosco “The Terminator” Ntaganda all enjoy varying degrees of impunity for war tactics that maximize attacks on civilian populations.
Powerful interests impede progress
In developing strategies for arresting each of these war crimes suspects, it is crucial to look at the national, regional, or international interests that are undermining or interfering with effective approaches to apprehension.
President Bashir is protected by significant interests and alliances. He is the first among equals in a very powerful ruling party in Sudan that has overseen and milked a massive spike in oil production over the last decade and a half, financed by Chinese, Malaysian, and Indian investment. China alone has billions of dollars invested in Sudan’s oil infrastructure and has run interference in the U.N. Security Council and more broadly for years. Furthermore, Bashir cultivated relations in Beijing, Moscow, Riyadh, Abu Dhabi, and throughout the Arab League and African Union. This isn’t Gaddafi, who was friendless at the end, or even al-Assad, who has powerful opponents in his neighborhood. Any effort to create pressure for Bashir’s apprehension runs into these powerful interests.
Bosco Ntaganda also benefits from powerful interests that have prevented his arrest. President Joseph Kabila of Congo and President Paul Kagame of Rwanda have struck deals that have protected Bosco and his National Congress for the Defense of the People, or CNDP. Bosco has served a crucial function in maintaining a parallel power structure of the CNDP in eastern Congo, which helped guarantee Rwanda’s interests for the last few years. Bosco financed the CNDP through a vast illicit mineral smuggling network primarily across the Rwandan and Ugandan borders, which has enriched his elite allies in Kigali, Kinshasa and Kampala. Past efforts to arrest Bosco—as well as current efforts as he is protected by his new militia named M23—have continuously run into this set of covert and insidious interests.
Joseph Kony enjoys much less protection than Bashir or Bosco. For years he received significant support and safe haven from the government of Sudan in retaliation for Uganda’s support for South Sudanese rebels, as well as accessing occasional support from a small, radicalized segment of Uganda’s diaspora networks. But this case has had the least resistance to crafting a credible apprehension effort over the last few years.
Impact of ICC warrants
Before getting to apprehension strategies, it is important to note what the ICC arrest warrants targeting these three suspects—as well as the unrelenting efforts of certain states, active human rights organizations, and former ICC Chief Prosecutor Luis Moreno Ocampo and his team—have produced in terms of impact.
The issuance of the arrest warrant for Joseph Kony eventually helped increase pressure on the Khartoum government to stop—or at least reduce—aid to the LRA. The warrant united international efforts and helped over time to erode the capacity of the organization. It also provided an international legal framework for multilateral efforts to fight the LRA across four borders (Uganda, Congo, Central African Republic, and South Sudan).
A few years after his indictment, growing pressure for Bosco Ntaganda’s arrest and the ICC’s conviction of Congolese warlord Thomas Lubanga resulted in shattering the deadly status quo in eastern Congo, exposing the parallel power structure of Bosco’s CNDP, and its mineral smuggling networks into Rwanda and Uganda. The CNDP, now under the guise of the recently formed M23, is protecting Bosco, with help from neighboring Rwanda, as documented by a recent U.N. Group of Experts report.
The impact of President Bashir’s arrest warrant is less clear. A head of state with sufficient regional and international support makes the creation of an apprehension strategy much more difficult. Bashir, however, perceives the arrest warrant as a scarlet letter, one that he appears personally obsessed about according to those that have had private conversations with him. The warrant has marginally enhanced his international isolation, as some governments have threatened to execute the warrant if Bashir were to try to visit their countries. The warrant may have also impacted Bashir’s calculations as a factor in his reluctant decision to allow the referendum for South Sudan’s independence to occur with minimal constraints and violence.
Finishing the job
To get these three cases over the finish line, the international community needs to deal with the obstructive interests as well as increase political will for action in key capitals.
In the case of President Bashir, governments with leverage must increase the pressure on the ICC’s signatory countries to deny him entrance, or to invite him and then arrest him. Malawi is a case in point. The new president in Malawi, Joyce Banda, was under heavy pressure from the African Union to allow Bashir to attend an A.U. Summit in late June. But President Banda was also being lobbied strongly by certain donor countries to deny Bashir entry. Once she decided Bashir couldn’t attend, the A.U. decided to move its summit elsewhere.
Increasing that kind of pressure with a focus on isolating Bashir is the likeliest short-term strategy. As the Sudanese people struggle internally both peacefully and militarily against this regime, an opportunity may arise as it has throughout the Arab Spring region to alter the status quo. At that time it may be more politically feasible for the U.N. Security Council or willing states to create a viable apprehension strategy, if one isn’t first created by Sudan’s wide and deep internal opposition.
Bosco Ntaganda’s arrest will no doubt require Rwanda’s active involvement. As long as Rwanda is providing support to Bosco and his M23 compatriots, it will be difficult for Congolese forces or the U.N. peacekeeping mission in Congo to have a chance at hastening his departure from the battlefield. At this point, the U.S. and U.K. —two of Rwanda’s biggest donors—should begin to review their relationships with Kigali, as long as Rwanda is undermining the stability of eastern Congo. Further, coordinated European, Asian, and American pressure on Kinshasa is also needed to end the deadly but lucrative mineral smuggling networks that have fueled violence for the last decade and a half in the war-torn east.
The regional and international political will to arrest Joseph Kony exists already, but the necessary ingredients for Kony’s apprehension are not fully in place. Though African troops have been deployed by all the neighboring countries, more troops are needed in the form of both special forces focused on capturing Kony but also infantry to protect civilians from vicious LRA reprisal campaigns. Helicopters must be provided to allow African troops that are tracking Kony to be able to react to a needed intelligence surge to determine the whereabouts of Kony and other LRA leaders, along with access agreements to enable troops to operate anywhere in the region Kony’s forces try to hide.
Serious discussions about the need for a global police force with automatic triggers for deployment have started. But creation of such a force is a long way off, and there is currently an urgent need for restructuring the way the ICC and other international tribunals issue their arrest warrants. As part of any warrant, there should be required a focused, tailored strategy for apprehending the suspect which would be developed by ICC state signatories. Only then would there be a chance to reduce the deadly lag time between the issuance of an arrest warrant and any serious effort to execute the warrant. In the meantime, much more must be done to bring to justice three of the most potent symbols of 21st century impunity: Bosco, Bashir, and Kony.
Photo: International Criminal Court in The Hague, Netherlands (AP)