War crimes in Sri Lanka, but does it matter?

International law exists partly to deter the worst actions by governments. But so many violations of international law go unpunished. Much has been done by international actors such as the International Criminal Court (ICC) and its sponsors, and national courts invoking universal jurisdiction such as Spain’s and Britain’s to end impunity. But in general, international law is very hard to enforce and impunity is the rule, not the exception.

That is why the opening of a new chapter in the debate about war crimes committed by Sri Lanka’s government against the Tamil Tigers (LTTE) might be pointless. Several groups, including Human Rights Watch and the International Crisis Group, accuse the Sri Lankan government of war crimes. But while these groups can investigate, put together reports, publish findings and so on, they have no power to bring criminals to justice.

Leaving aside the fact that both the Sri Lankan military and the Tamil Tigers probably violated international law, the remaining question is, does it matter? Will anyone be brought to justice over it? The ICC has done a reasonably good job so far, with the help of national authorities, in prosecuting the most egregious offenders, but the fact that many of its indictees, such as Omar al-Bashir of Sudan, run free, is testament to the challenges the system has yet to overcome. But the progress made since World War Two has been impressive. It should continue. All Sri Lankan leaders, Tamil and Sinhalese, who violated human rights should be held accountable.

Africa is losing the battle for justice

That meddlesome International Criminal Court (ICC) is at it again. Whenever an African dictator turns around, there is Luis Moreno Ocampo with a warrant for his arrest. But there is good news for dictators. The African Union has pledged to protect the worst human rights abusers from the ICC’s claws.

In a statement, the African Union said that they would not cooperate with the ICC on Omar al-Bashir’s arrest. The reasons are simple: Africa has a lot of dictators who have few qualms about violating human rights, and letting one of them go to the Hague would set a precedent. Meanwhile, in Darfur, Uganda, the Democratic Republic of the Congo and the Central African Republic, all containing people the ICC wants to nab, atrocities continue apace. This is a victory for the dictators and a finger in the face of the victims.

Many African leaders see the ICC as a way for the West to interfere in the affairs of their respective states. The assumptions behind this talk is criminal. It is such an easy excuse for anything. Human rights are not “Western”, they are universal. Are Africans somehow inferior to Westerners? They do not deserve the same rights? And yet, this is what their leaders are telling them. Injustice anywhere is a threat to justice everywhere, said Martin Luther King, Jr. To disallow the ICC from doing its work in Africa is to doom the continent’s basket cases to more of the same killing it has been suffering from for as long as anyone can remember.

The real question, however, is is the ICC doing the right? The African Union behaved predictably. If you could go to jail because you let someone else go to jail, you would be rational to protect him. What are the alternatives to international institutions?

One system of justice that has been tried in Rwanda takes a more transitional approach. Transitional justice is the kind conducted in the aftermath of a war or something similar, intended to promote not winner’s justice but reconciliation, healing and moving on. (Truth and Reconciliation Commissions are of this idea.) Rwanda’s method is widely studied as a possible alternative to more formal criminal trials. It has its flaws but could be applicable in some situations. If it helps in ways the ICC cannot, it is worth attempting.

Rwanda’s is just one of many possible approaches to justice. However, none of them are being employed in Sudan at the moment. We will need to wait much longer to know the extent of the damage in Darfur and if Omar al-Bashir will ever face trial, or if the only justice he experiences is death.

The United States should embrace international law

It is staggering to read the backlash against President Barack’s nomination of Harold Koh as legal advisor to the US State Department. It also reveals a serious misunderstanding of what his appointment would mean.

The reason for the anger at Koh is that he is an apologist of international law. His views are that the US should embrace “transnational jurisprudence”: international law should inform the legislative process in the US and elsewhere. He is right.

His critics seem to believe that non-American laws are somehow inferior to American ones; that international law can override the American constitution; that the International Criminal Court is praying for Koh’s nomination so that they can jump into the US and arrest Americans; and that the US’s sovereignty, and thus existence, is at stake. These fears are simply unfounded.

International laws are similar to American ones. International criminal law, for instance, forbids many of the same things American law does: killing, stealing, organised crime, and so on. One big fear among conservative Americans is that international law will mean Americans can no longer carry their guns. Why would this be so? There are indeed conventions against the manufacture and trafficking of illegal arms, designed to reduce the ability of rebels and transnational criminal organisations to obtain weapons; but do law-abiding Americans need to worry about this law?

International laws stop where the rule of law at national level begins. Not all countries need to sign up to all international conventions. If someone in the United States wanted to ratify an international treaty, it would not be a simple matter of a White House legal aide’s signature: it would need to be passed by all three branches of the US government. And if there were an international convention that took away the firearms of all citizens of all states, do you seriously believe it would pass through Congress?

The International Criminal Court is also not an issue for Americans. Americans will not be tried at the Hague. The ICC statute is very clear on this: if a country lives under the rule of law, with a good, fair legal system, it will not be targeted by the Court. The ICC is for countries like Sudan and Uganda, which will not or cannot try the worst of its citizens as criminals. Because of the US’s strong legal system, though not one without flaws, the ICC has no reason to intervene into US jurisdiction.

While it is clear that many are afraid of losing the American constitution to international bodies, many more simply want to attack President Barack. Most of the people criticising his choice for legal advisor are people who rarely have a good word to say about him at any time. This is just the latest attempt at “preemptive discreditation”, in the words of Ronan Farrow of Forbes, of the president. Along with the White House, Harold Koh’s supporters include the Senate, which generally approves of him, the Senate Committee on Foreign Relations, who voted 12-5 in his favour, and 11 prominent American law professors, who wrote a letter to Congress in his favour. But how could they support a man who thinks other countries’ laws are better than America’s?

They do not. They support a man who does not dispute the supremacy of the US constitution, while acknowledging that other countries’ experiences in interpreting the US constitution just might be educational. Imagine that–the US could learn something from other countries.

Along with the educational value of someone who understands and appreciates international law, appointing Harold Koh could mean more legitimacy for the US in its international engagement. The US’s reputation abroad suffered terribly under the Bush administration, in large part due to an illegal war and illegal actions while fighting that war. Reputation counts. When a country has a good reputation, say for behaving according to accepted norms and supporting others internationally, it gets what it wants in international organisations such as the UN and the WTO. When it squanders its goodwill, as the Bush administration found out in its second term, its influence drops considerably. Power is no longer about who has the most guns: it is about influencing others, who also have guns.

If the United States wants to retain the capital it has won internationally by making the right choice for president and legal advisor, it will embrace international law, and Harold Koh.

A serious term is overused

Racist violence is a serious problem. Sometimes it happens on a wide scale. Sometimes thousands are killed and displaced in a war. But not all racist violence is genocide.

“Genocide” is used nowadays to refer to virtually every conflict going on. The word is used as a political tool to bring people together in common cause. Everyone thinks genocide is wrong, right? After the riots in Tibet in 2008 and the crackdown that followed, some called it a genocide. Tamils use it to describe the war in Sri Lanka. Palestinians call Israeli actions in the Occupied Territories genocide. When speaking on Sudan, Nigeria, Chechnya and East Timor, some people throw the word around like a basketball. Strictly speaking, these are not cases of genocide.

I could easily be wrong, though. One reason for such widespread use of the word is its unclear definition. Scholars give various definitions, from systematically massacring an entire group to that given by the Convention on the Prevention and Punishment of the Crime of Genocide, “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [such as] killing members of the group; causing serious bodily or mental harm…; preventing births within the group; [and] forcibly transferring children of the group to another group.” One could be forgiven for thinking almost anything is genocide.

Nonetheless, to overuse a word is to desensitise oneself and take the idea it conveys for granted. Genocide is recognised as a kind of legal trump card called jus cogens: like slavery or crimes against humanity, genocide is illegal under any circumstances. If we start calling too many things genocide, we are exaggerating and might be missing the nuances of the situation that separate it from the deliberate destruction of a whole ethnic group. The word “rape” has acquired a similar role as a basketball word. It is somewhat akin to the boy who cried wolf: cry genocide often enough and people will stop listening.

The executive director of B’Tselem, for instance, agrees. As the leading Israeli human rights organisation, B’Tselem is one of the most important organisations that inform Israelis of their government’s actions in the Occupied Territories. When Hugo Chavez called Operation Cast Lead, the 2008-9 war on Gaza, a genocide, Jessica Montell wrote that “such demagoguery” is “inaccurately and cynically” tossing words around. B’Tselem was among the first and most vocal to criticise Israel’s handling of the war, for which it may be guilty of war crimes; but war crimes are not genocide. These crimes are serious but “bear no resemblance to genocide or an attempt to exterminate Palestinians.” We “must firmly reject such offensive sloganeering and the trivializing of genuine human rights concerns. Only a careful naming of the reality can fuel genuine efforts to promote justice.”

The alternative, therefore, is to give a more accurate term to say what you mean. What is going on in Darfur may be a genocide, although it may be more like a civil war. (In fact, in trying to convict Sudanese leaders of genocide, the International Criminal Court may lose a case that is nonetheless a clear instance of crimes against humanity.) The war in Sri Lanka is a civil war or an insurgency. In Tibet, it is more like repression. The 2003 war in Iraq was interstate war, occupation, insurgency, sectarian violence, chaos, but if it is genocide, who is committing it? All sides have been killing innocents. Besides, the highest estimates of casualties found 1.4m Iraqis killed since March 2003: a high number, but a small proportion of the 28m people in the country.

Serious words like genocide should be used sparingly in order to preserve their meaning. If we overuse, exaggerate and politicise words, we are bound to lose credibility and supporters.

Is the ICC going too far?

The International Criminal Court is indicting a sitting head of state, and it is raising many an eyebrow.

Some are calling it counterproductive. Many say indicting, and somehow arresting, Omar al-Bashir, president of Sudan, would derail Sudan’s fragile north-south ceasefire and make peace harder to attain in Darfur. Some say that heads of state are fully protected even from the ICC’s universal jurisdiction by well-established legal codes. Still more say that this is nothing more than Western hegemony, colonialism, white man’s burden and so on.

It is possible that the peace process in Sudan will collapse. My question is, what good has it done so far? Has the suffering ended? Does it look like it might end soon? If not, it is not really a peace process. Peace treaties might be unworkable in Sudan. While I do not believe that the Sudanese government and the Janjaweed are solely to blame in Darfur, they are obviously at the wheel. If anyone can stop the violence, it is al-Bashir. To say that sitting heads of state are protected by international law may be true, although the ICC may represent a break from this convention. There are certain jus cogens laws that override uncertainty in treaties and agreements: the crime of genocide, for instance, cannot simply be rewritten and legalised. And to call all this colonialism is beside the point: if someone orders the killing of thousands of people, what is the difference who punishes him? During the 1990s, critics complained that mostly only Europeans (from the former Yugoslavia) were being targeted, when there were terrible dictators in Africa and Asia too.

In my opinion, even if it is no more than symbolic, this move by the ICC is a welcome step forward in international justice. Like national legal systems, international law tends to develop gradually. Outside of ad hoc tribunals that are set up after wars have ended, there has never been such ability to try anyone of the most heinous crimes possible. The Court can be the final stopgap between the worst human rights abuses and impunity. The ICC is not abusing its authority: if it can gather enough evidence that someone has committed the crimes it prosecutes, it can indict him. Note that the ICC does not indict people for parking tickets: al-Bashir is being persecuted for war crimes and crimes against humanity and, with more evidence, perhaps genocide.

With such a big step, the ICC is setting precedents that indicate justice anywhere is justice everywhere. None of the worst dictators are safe anymore from the long hand of the law.