Tag: Sub-Saharan Africa

Competing with the ICC for Justice: The Central African Republic

At the ICC, survivors have no choice but to compete for recognition and reconciliation—and ultimately, for justice. Acquittal complicates this inequity: well after the trauma is revisited in testimony, telling the truth becomes a performance for the sake of the Court, not for justice. This article, which examines the role of the ICC in the Central African Republic (CAR), is the first in a series of posts that will explore the impact of acquittal in international criminal justice on ongoing conflict.

A survivor’s participation at trial is heavily limited by legal procedure. While courts aim to produce a public narrative of fact, to do so they must establish their own legitimacy as objective arbiters of truth. Enshrined in the very foundation of a justice process that is considered “fair” and “objective” is the notion that the courtroom is a space designed for telling what is factually true, a space that is not beholden to those doing the telling. Thus, courts find value in only specific types of testimony, given in specific ways.

In the ICC, the rules of procedure dictate the types of testimony—and indeed the kind of victim—it considers too subjective and unreliable to give admissible evidence. The court, therefore, also dictates the kind of testimony, and the victims, that are worthy of public recognition and acknowledgement. As one young Central African woman put it to Marlies Glasius, “We want the Court think about justice but also to support us to redo our life.”

As the ICC struggles to relate to survivors, it is imperative to examine what happens when international crimes against humanity are proven, but go unpunished as commanders are acquitted.

THE PROSECUTOR V. JEAN-PIERRE BEMBA GOMBO

At independence in 1960, political power in CAR was arranged along fault lines of neglect, in a complex network of personal favors and predation left by French colonization. For decades, multiple coup d’états and mutinies formalized violence as a mechanism of political control. The violence that began as unchecked personal animus between President Patassé and former Army Chief of Staff General Bozizé in 2002, escalated over the course of a year to a coup characterized by widespread cruelty and brutal violence targeted against civilians.

Following Bozizé’s bloody and brutal coup, the ICC charged Jean-Pierre Bemba Gombo—Patassé’s Congolese rebel commander, who led the Mouvement de Libération du Congo (MLC) while they used sexual violence to terrorize communities—with crimes against humanity for murder and rape and three counts of war crimes for murder, rape, and pillaging. On 20 June 2016, Bemba was convicted, becoming the first person to be convicted of rape on the basis of command responsibility at the ICC. However, two years later, Bemba was acquitted on appeal. Though the Appeals Chamber did not contest that Bemba’s troops perpetrated grave crimes against humanity as well as war crimes, it challenged his responsibility for these crimes as the MLC’s commander.

COMMAND RESPONSIBILITY

According to Article 28 of the Rome Statute, an individual commander is criminally responsible for crimes committed by forces under their direct or effective authority, command, and control, when that commander knew or should have known forces were committing or about to commit criminal acts, and when the commander failed to take “all necessary and reasonable measures” within their power to prevent, repress, investigate, and prosecute those crimes.  

The ICC’s charges against Bemba established that the such criminal acts as sexual violence or forced conscription were the legal responsibility of Bemba himself, rather than that of MLC perpetrators. Sexual violence, pillaging, murder (or the numerous other crimes that the Prosecutor failed to include) were determined not to be individual instances of a poorly managed military “taking advantage of a coercive environment,” but rather the direct and explicit acceptance of crimes against humanity as a means of waging war. Thus, the Trial Chamber treated command responsibility as a mode of liability.

In the context of how to ICC understands the nexus of command responsibility, this is important because it establishes a clear line between a commander’s failure to act and what E. Van Sliedregt describes as “a form of participation” in violence (Clark 2016, 672, see FN 38). Because a commander engages in violence through the actions of the troops they lead, their liability for violence rests not only in their own actions, but on those of their troops. When a commander fails to explicitly discourage a crime against humanity, the commander is personally participating in the crime.

Despite acknowledging that MLC soldiers perpetrated crimes against humanity and war crimes, particularly rape and other forms of sexual violence, the Appeals Chamber’s majority opinion concluded that the conviction exceeded the charges; Bemba could not be responsible for every crime perpetrated by every, and in this case any, MLC combatant, he was not located within CAR at the time of those crimes.

Thus, Bemba’s acquittal served to establish a legal framework centered away from the victim and indeed the violence of the acts of crimes against humanity.

The process of telling, and the outcome of acquittal, effectively flattens public memory of sexual violence. To be the Court’s victim is to inhabit a constructed, liminal identity caught up in the willingness to perform a personal memory of trauma to the satisfaction of the Trial Chamber and its telling of factual truth. While the Trial Chamber memorialized a flattened memory of violence in CAR, the Appeals Chamber atomized the distinct features of responsibility and victimization.

In acquittal, the Appeals Chamber vacates not just the sentence, but substantively, the meaning and legibility of legal justice for survivors. Victims, though welcomed for their participation upholding the legal procedure of justice, are then literally stripped of their recognition as victims and its sole benefit: reparations. In so doing, the Appeals Chamber—and the ICC at large—truncates any actualization of legal justice.

COMPETING WITH THE ICC

It is critical to understand the impact of a survivor’s participation in trial not just for the Court, but for survivors and the larger project of transitional justice. In performing as a “victim” for the Court, survivors become the objects of justice, instruments a court uses to demonstrate that there is someone who needs to be punished. In its process of “unmaking” these victims, the Bemba Appeals Chamber disconnected victims from the crimes that they survived, but also from reclaiming a sense of ownership over what they survived by testifying.

Through this process, the ICC creates divergent streams of justice for victims at trial, preferring the justice that is legible to the institution over a form of justice that is legible to the survivor. Participating in justice at the ICC means that a survivor must allow themselves to be made and unmade a victim at the will of the Court. They must accept a practice of performing justice in which they are given and necessarily then denied the status of victim. Thus, survivors who testify are made into instruments of justice, left waiting for recognition to be able to “redo” their lives and live beyond victimization. Without recognition and reparations, the practice of transitional justice remains located theoretically and practically outside CAR, at the ICC.

Because such institutions of transitional justice reproduce an identity for victims and perpetrators that is caught up in diametrically opposed and competing meanings, the ICC—and the memories the Court constructed as it adjudicated who is responsible—loses sight of survivors needs.

It matters where justice is done, by who and for whom. When survivors and their needs do not drive this process, the process itself loses its legitimacy. Worse still, it excludes survivors from reconciling what they have survived in meaningful ways.

When the practice of legal justice ultimately fails to articulate liability for those criminally responsible, violence and injustice live on in the public memory. Targeting ordinary people with personal and intimate violence becomes the normal business of politics. To date, sexual violence remains rampant in the CAR: ex-Séléka and anti-Balaka rebels who terrorize CAR today use the same methods as the MLC to exert control over communities. And yet, the ICC’s CAR II investigations of Alfred “Rambo” Yekatom and Patrice-Edouard Ngaïssona—though they cover a broad scope of violence over the significant period of CAR’s most recent civil war—don’t include any charges of gender-based violence, sexual violence, or rape. Victims of Bemba’s violence, Bozizé’s violence, and Djotodia’s violence are left without legal recourse for what they have survived and continue to be subjected.

Survivors are left to wonder if the ICC has given up on justice for sexual violence and rape and we are all left to question whether justice at the ICC is really justice at all.

Image Credit: UNICEF | Pierre Holtz

The Mobile State of Exception in the Central African Republic: Keeping the Peace through Violence 

Decades of peace operations in the Central African Republic have done little to attenuate violence.The persistent failure of the state (and its external agents, like peacekeepers) has embedded a culture of impunity in CAR, in which carrying a weapon necessarily emboldens subjects and constitutes sovereigns.

In CAR, the fluidity between the protection of civilians and violence against them by peacekeepers transforms local insecurity into an internationalized and mobile state of exception. The concomitant political teleology is, simply put, terror. Violence perpetrated by peacekeepers—as subjects of legitimized violence in armed conflict—is mobilized as a relational construct in the context of civil war in CAR.

The embedded praxis of terror perpetrated by non-state sovereignties and its implications for reconciling the lived experience of violence by Central Africans suggest a central question: why doesn’t the international community consider crimes against humanity and war crimes perpetrated by peacekeepers to be terrorism?

Civil War and the MISCA Massacre

Séléka CPSK-CPJP-UFDR—a coalition comprised of political parties and armed militias—successfully deposed former CAR President Bozizé in a brief, but bloody coup in March of 2012. He was replaced by President Djotodia, who was seated in office after he led Séléka during its campaign for political control.

Facing significant international pressure, Djotodia dissolved the alliance. But Ex-Séléka militants soon mobilized outside Bangui, targeting civilians, particularly those suspected of supporting Bozizé, with brutal violence. In self-defense, civilians armed themselves and formed anti-Balaka militias targeting suspected Séléka supporters. This act was a necessity driven by the virtually non-existent state apparatus left behind from decades of violent politics at the center reverberating through peripheral communities in crisis.

Reacting to the ethnic and religious tensions underlying worsening violence in December 2013, the UN Security Council authorized the African Union’s Mission Internationale de Soutien à la Centrafrique sous Conduite Africaine (MISCA). While MISCA peacekeepers were enforcing peace between 2013 and 2014, Central Africans reported massive violations of human rights, including sexual violence and the forced conscription of children.

On 24 March 2014, anti-Balaka militias—at the direction of commander Maurice Konomo, who told his troops to “go to war”—attacked MISCA soldiers in Boali (a town 100 kilometers north of the capital, Bangui), resulting in the death of one MISCA peacekeeper. Afterwards, 20 MISCA peacekeepers, all from Congo-Brazzaville, marched to Konomo’s home where they killed a young boy. With the knowledge of MISCA Captain Abena, they detained and executed 12 other civilians, including 4 women and 2 children, before burying their bodies only 500 meters away from the MISCA base.

The AU publicly condemned the murder of their peacekeeper, and claimed that MISCA troops had “returned fire” against anti-Balaka militias who had identified themselves as “spoilers and enemies of peace.” The MISCA massacre was a profound violation of their mandate to protect the basic human rights of Central Africans. The choice to blame MISCA victims exposes a much deeper problem in how peacekeepers use violence to keep the peace, though ultimately undermine it.

The State of Exception

The interaction between identity and agency is a critical analytic tool to explore the legibility of exceptional violence. Charles Tilly provides two analytic modalities in which to situate terrorizing in the larger project of waging war. First, terror is defined as acts of violence used in a “recurrent strategy of intimidation” that are perceived as terrorizing. Second, terror is measured by the presence of coercive specialists who “deploy terror under certain political circumstances, usually with far more devastating effects than the terror operations of nonspecialists” (2004, 9).

Terror is thus a fluid asymmetry of power, in which to be subject is to perform violence, either in fact or in effect. Deploying identity, indeed weaponizing it through terror, blurs the line between what (who) is subject and what (who) is sovereign. Described by Achille Mbembé as an internalized constituency, the subject becomes sovereign in the exercise of public violence, embedded in the “state of injury” (2003, 21). Notions of the enemy, and an intervenor, weaponize innocence against guilt such that the inherently innocent peacekeeper intervenes on behalf of the only circumstantially innocent civilian. Acts of terror thus become constitutive instruments producing a state of exception. Such exception (re)produces identities trapped at the intersection of violence and vulnerability, no longer dependent upon clearly delineated time or space, but in the ephemera of insecurity.

Evidence of the MISCA massacre—and proof of an act of terror—was literally uncovered when the mass grave was exhumed in February 2016. Abena was temporarily suspended in 2014 after accusations of the murders were publicized, but was later reassigned to another part of the CAR. The resulting logic—that peacekeepers are entitled with the privilege to treat a massive violation as a professional indiscretion—illuminates the role of silence and erasure in the making of civilians into objects, or instruments, of violence.

The brutal and cruel response to an aberrant act of violence reoriented the performance of dominating the periphery; in a sovereign and subject performance of retaliation, trained and militarized subjects deployed violence for the purpose of intimidation. Terror permeated the politics of everyday life, firmly establishing the peacekeeper as the sovereign subject with a legitimated monopoly of violence. When the United Nation’s Mission Multidimensionnelle Intégrée des Nations Unies pour la Stabilisation en Centrafrique (MINUSCA) formally subsumed MISCA in 2015, the UN launched investigations concluding that MISCA was in fact responsible for perpetrating crimes against humanity and war crimes.

Peacekeepers are entitled to protections as international agents of peace, but simultaneously enjoy the privileges of a traditionally armed military force. Obliged to the consent of the state in which parties are warring, rather than the warring parties themselves, peacekeepers are thus simultaneously combatants, who eschew international humanitarian laws regarding rules and responsibilities to civilians, and as civilians, intermittently engaging in hostilities, who deploy terror in discrete political circumstances. This effectively produces a state of exception which becomes a mobile instrument of sovereignty, a superstructure of peacekeeping through terror and governing through violence. The terror of being targeted by forces present in a community for the purpose of protecting that community is compounded by the impunity when those crimes are investigated and unpunished.[1]

Rethinking the Role of Violence in Keeping the Peace

Subjectivity and sovereignty are reinforcing logics: the state needs a subject over which it can exert authority. Such moments of violence as the MISCA massacre, expose a key paradox in the CAR: the structural durability of exception in categorizing all violence by non-state actors as legitimate and necessary. As peacekeepers define what peace means, they also claim ownership of exception to act violently in the name of peace. These acts of violence embed a framework of terror as a mechanism of creating a subject who might be blamed. Inevitably escalating violence, events like the MISCA massacre create a singular social structure in which violence, brutal and spectacular in form, is the most effective and efficient way that civilians might reclaim their agency and identity.

Terror, as an act and as an embodied experience, sits at the intersection of exception and injury: it causes irreparable damage to the relationship between the peacekeeper and civilian and in doing so, produces conditions of fear and insecurity which necessitate exceptional acts of violence. Thus, terror saturates social politics so completely that exception and injury become mobile. Where peacekeepers inhabit a malleable and transient state of exception, they are both the makers and the arbiters of the rule of law, to police and enforce a power arrangement dependent upon their flexibility in wielding and articulating their own powers.

As the dynamic of violence shifts, so too does the articulation of exception, isolating culpability for an act of violence from is victim, who remains static. As a result, civilians inhabit a similarly mobile state of injury, where they must accept victimization as a demonstration of their status as civilians and be resilience in response to terror.

The MISCA massacre further illuminates the interstitiality of the Central African civilian constrained by the politics of terror in which they are the vilified subject of an act of terror as much as the victimized object of it. By situating peacekeepers outside a good/evil binary, this analysis exposes the lacunae of terror. Such external agents of the Central African government in Bangui instrumentalize the existence and destruction of civilian bodies as proof of someone else’s wrongdoing. Persistent social and political insecurity at the periphery, which produces conditions that allow peacekeepers to claim a state of exception, also allows them to disjoin it from those same civilians. Blame is necessarily redirected to local actors, including civilians, for the conditions of insecurity and violence which require the suspension of the ordinary protections and privileges of being a civilian.

It is therefore in the asymmetric superstructure of blame that exception becomes a portable performance of legitimacy. The MISCA massacre is terror precisely because MISCA reacted so violently that they deployed a state of exception, yet peacekeepers’ sovereignty and performative subjectivity persist through their mobility.

[1]  Three of the peacekeepers involved in this incident, Abena, Ngouala, and Ntalani Bantsimba, were convicted of war crimes in the DRC and sentenced to three years in prison in July 2018. The Congolese chamber did not seek testimony from any Central African witnesses during the judicial process, neither the victims’ families nor witnesses were included in the proceedings. All three men were released in 2018 having served a portion of the sentence before being convicted. See coverage by Human Rights Watch for additional analysis.

Photo Credit: US Air Force

The Media Ethics of Covering the Nairobi Hotel Attack

The recent attack on a hotel in Nairobi, during which at least 21 people were killed, sparked condolences and solidarity messages from all over the world. The way the attack in Nairobi was presented in international media and in social networks, however, led to an uproar, after The New York Times and other media outlets issued horrifyingly detailed images of the corpses of some of the victims in what appeared to be a hotel bar or restaurant.

The New York Times article, as George Ogola argued for The Conversation, encompasses a whole range of elements to be criticised, particularly the potential utilisation of media outlets as a tool of propaganda by terrorist groups, as recently taken to a new level of professionalism by the so-called “Islamic State” (ISIS)-affiliated news agency, Amaq. Other elements of Ogola’s more than justified critique include the problematic differences in coverage of “distant death,” as well as the sensationalization of violence in Western media, particularly when it comes to the reporting of war and terrorism from “African” countries and the urge to glorify the white man as the rescuing hero.

This practice might be linked to a number of factors including, but not limited to, the fundamentally racist picture of “bloodthirsty Africans” savagely genociding each other, the false assumption that African conflicts are irrational and not driven by political and economic factors (as in any other conflict), and the antiquated, if not irrational, belief that the entire African continent is a such a far-off place that it lacks connection to the Western media, to the extent that relatives and friends of the victims are assumed to never see the pictures of their slaughtered family, because they are incapable of accessing the internet to read the New York Times.

The irony is painful; the racist element is obvious. In this situation, where were the guidelines that media outlets (such as the BBC) usually use to ensure the protection of witnesses and their relatives? But the debate surrounding the realms of media and photography ethics is not an entirely new one. Various debates in the field of media ethics, particularly the ethics of war and crime photography, include discussions on the appropriateness of exposing an audience to bloodshed (and the consequences that this may have, including desensitising the audience to human suffering); the protection of the victim’s identity as contrasting with the importance of reporting on atrocities; and the responsibility of the photographer to intervene (for example, the discussions surrounding what the photographer Kevin Carter could have done to help the “Starving Child” after taking the now infamous photograph).

But how should we, the audience, deal with the depicted death in the media? In “Regarding the Pain of Others,” Susan Sontag describes this “we” as those who can never truly understand the experiences depicted in coverage of violence: “We don’t get it. We truly can’t imagine what it was like. We can’t imagine how dreadful, how terrifying war is; and how normal it becomes. Can’t understand, can’t imagine. That’s what every soldier, and every journalist and aid worker and independent observer who has put in time under fire, and had the luck to elude the death that struck down others nearby, stubbornly feels. And they are right.” (2003).

With this in mind, a more understated representation of violence might help open a new space for the deliberate re-creation of media ethics in regard to what is depicted in the violent image, and the voyeurism one might develop when very much “regarding the pain of others” through mass media, particularly the internet. For us, as the audience, we do not need the gruesome picture of the shopping mall to understand what happened there. Looking at a picture of tragedy might shock someone for a second, at best, before as Sontag would say, “the book is closed,” and they move on. The images of violence are just too many, and thus are unable touch our empathy anymore. No longer do graphic images of suffering change the world, as did the image of a fleeing, burning child contribute to mobilising mass demonstrations in opposition to one of the most brutal wars in history.

Media outlets should begin realise that the momentum of violent photography is lost, and adapt accordingly. Editors can can make a decision: the freedom of the press includes the freedom to decide how to publish, but it also gives the freedom of what is better not to be published — including the images of the Nairobi Hotel Attack.

Photo Credit: Tony Webster CC BY-SA 4.0

Uganda: The People v. The Government

Photo Credit: Adams Jones 2012, CC BY-SA 3.0

Old Man Robert Mugabe, former long-time President of Zimbabwe and Facebook icon (see “Robert Mugabe Quotes”, where fake quotes are published as “the renowned Statesman’s commentary on the fast paced times we now live in”), was forced out of office in 2017. Since 2017, Uganda’s President Yoweri Kaguta Museveni finally ranks in the top-three longest-serving leaders of the continent.

Certainly, Museveni is one of the most iconic leaders: the East-African President, often abbreviated as “M7” by his subjects, is well-known for showing up with a tremendous cowboy hat and colourful yellow shirts. M7 has sparked laughter not only among Ugandans, but also among members of the international community. He is known for being colorfully ostentatious, once telling his people, “It is dangerous to stick a finger in the anus of a leopard because you are in trouble” (referring to himself in the context of upcoming elections) and, “the mouth is there to eat and not for oral sex.” He invited Kanye West and Kim Kardashian to the State House and publicly offered himself to be a mediator in the Israel-Palestine conflict in front of a high-level Israeli diplomatic delegation commemorating the 40-years anniversary of “Operation Entebbe” (during which Israeli Prime Minister Netanyahu’s brother was killed).

Clumsy on the outside, but what is behind the curtain?

Museveni’s  public appearance can hardly be called anything but clumsy; he appears to be a friendly grandad figure who does not hesitate to stop his several-dozen vehicle convoy to make a phone call on the roadside before taking photos with local villagers. But behind this facade, Museveni is everything but a friendly grandfather. In fact, the Bush War (1981–86) veteran has profiled himself as a ruthless strongman with a natural sense for power. After brutally cracking down on separatist movements and rebel groups in Northern Uganda, he successfully used international justice mechanisms (such as the ICC) to prosecute whoever was left of his opponents in the region. He conducted crack-downs on media outlets and intimidated and persecuted a variety of opposition movements.

Museveni consistently adapted his strategies to sufficiently match whatever dissident thought sparked throughout Uganda. This did not only include the obvious rigging of elections in 2016, but he has also successfully led a campaign to remove the presidential age limit from the constitution after protests sparked over an attempt to change his own birth date. But that is not all: during his more than 30-years rule, “M7” sacked powerful competitors from his own party, including the former Prime Minister, Amama Mbabazi and the former Inspector General of the Police, Kale Kayihura. Besides favouring members of his own tribe in government positions, he established a dynasty: Museveni made his wife a minister (several times) and appointed his Sandhurst-educated son, Muhoozi, as a Presidential Advisor, possibly paving the way for the him to take over the presidency of the East African nation in the future.

The People v. The Government?

Recently the Ugandan government introduced a so-called “social media tax” as a reaction to “gossip” allegedly published in social networks and spread through messenger applications. The objective of the new tax, apparently, is to target the young, urban, poor populations of Uganda’s capital, Kampala, and other big cities — those people that have the tendency to support the opposition movement of “Bobi Wine”, a prominent self-made music star from one of the poorer areas Kampala.

Bobi Wine, by the real name Robert Kyagulanyi, became an elected Member of Parliament in 2017. He was arrested several times for speaking out against the Ugandan government in general, the removal of the presidential age limit in particular. After being charged with “treason” and abducted by security forces in August 2018, he was apparently tortured in custody by members of the security apparatus and had to seek treatment in the USA.

Bobi Wine certainly poses a threat to the reign of Museveni. For how much longer will 74-year old President Museveni hold on to power? No one knows. Certainly not much longer when it comes to many of the country’s youth, who make up the largest part of Uganda’s population. But how can Uganda get rid of the new “Old Man of Africa” and how can it achieve political change for Uganda’s 40 million citizens?

The removal of Museveni from the Presidential Office would present a chance for young Ugandans wishing for political change and economic opportunities. It would open up the possibility of holding members of the Ugandan government and the security apparatus responsible for war crimes committed in the country’s Northern provinces. As it appears, international justice mechanisms so far have failed to charge or even investigate crimes committed by sitting members of governments.

What comes next?

With the General Election coming up in 2021, it seems difficult to predict if Museveni himself will be physically fit enough to run for the presidency again. But at the moment, possible successors (with the unlikely exception of Museveni’s son, Muhoozi) are not in sight — it seems that a lot depends on how the opposition will position itself in the next few years. If the opposition wants to win a democratic election in Uganda, they will have to give Museveni, his family and allies, plenty of assurances, as the new “Old Man of Africa” will certainly not leave with the looming prospect of spending the remaining years of his life in the courtrooms of Kampala or The Hague. Neither will the hundreds and thousands of people in political offices, the police and military, and Museveni’s business partners, all of whom benefited from Museveni’s everlasting reign.