Monthly Archives: May 2013

The Yugoslavia Tribunal produces a new conviction and more confusion

by Rhodri C. Williams

Last week, I had the opportunity to join a symposium at the Hugo Valentin Center (HVC) at Uppsala University on the aftermath of the November 2012 Gotovina decision by the Appeals Chamber of the ICTY. Gotovina was the first in a run of three high profile acquittals, of which two (Gotovina and the more recent Perisic) involved defendants previously sentenced to lengthy jail terms by their respective Trial Chambers.

It was a good discussion, which I can summarize briefly. Tomislav Dulić of the HVC opened by contrasting many historians’ acceptance of the now notorious “Brioni transcripts” as establishing the intent of the Croatian Government to expel Serb civilians from the Krajina region in 1995, against the Gotovina Appeals Chamber judges’ reluctance to convict in the face of ambiguities in the recordings.

Mark Klamberg of Stockholm University followed with a cogent legal analysis of Gotovina (available here on his blog). He noted that judicial fact-finding is necessarily narrower than historical fact-finding, both in order to speed the conclusion of cases and secure the stability of their outcomes, but pointed out a number of troubling questions raised by the Gotovina decision, including the peremptory rejection of the Trial Chamber’s finding of a joint criminal enterprise (JCE) to expel the Krajina Serbs based on the collapse of a single element in the case for a JCE (related to mortar targeting).

Roland Kostić (HVC) then presented some of his findings from repeated surveys in Bosnia, noting how the Tribunal’s rather modest efforts to explain itself have long since been marginalized by a torrent of predictable and frequently dogmatic local spin (among other glum statistics, it seems the average Bosnian currently ‘tunes in’ to the ICTY about once a year).

I contributed as well, with a post-mortem of the various post-mortems of Gotovina, et.al., including the current blame debate between those who see a well-earned rebuke to an overreaching and under-informed Del Ponte Office of the Prosecutor (OTP) and those who see the Meron Appeals Chamber as obtusely pedantic at best and politically motivated at worst. The fact that both sides largely agree that the resulting acquittals represent an institutional failure, particularly with regard to the victims of the war, is cold comfort.

All in all, one came away with the impression of an institution that had lost its way, and, being burdened with far too many expectations, looked set to achieve few of them. On the other hand, the crisis may have spurred a trend toward clearer thinking on what the Tribunal really can and should do. Richard Dicker at Human Rights Watch recently pointed out that reconciliation can never be a realistic short-term goal for any institution and deterrence remains elusive, but that international trials nevertheless “can, by honoring victims, rendering justice and imposing punishment on the guilty, demonstrate the rule of law in the communities most affected by the crimes.”

The fundamental importance of restoring civic trust by reaffirming norms subverted by mass atrocities has been a central theme for the current UN Special Rapporteur on transitional justice issues, Pablo de Greiff. A recent post in EJILTalk on the current concentration camp guard trials in Germany by Kai Ambos forcefully underscores this point:

Punishment reconfirms and thus restores the norms which have been broken by the criminal act. Thus, with punishment the law reaffirms itself against its negation, … . In this perspective punishment is supposed to strengthen the society’s trust in legal norms and therefore to ensure that the people act according to the law…. That goes far beyond a mere symbolic effect.… For without the society’s trust in legal norms and of course in the institutions which apply these norms, no state can permanently claim any legitimacy vis-à-vis its society.

So there is still an important job for the ICTY to complete, in other words. However, it is unlikely to happen if the prior OTP and the current Trials Chamber keep conspiring to produce unbroken acquittals. Meanwhile, there seems to be little public soul-searching going on at the Tribunal itself. The institution’s twentieth anniversary passed in near-funereal silence outside the Hague, but was celebrated there with diagrams and speeches that seem to exude damage control. While all involved cited undoubted successes on the part of the Tribunal, there was a sense between the lines of the institution seeking to reassure itself of its importance.

This week, however, the ICTY Trial Chamber pulled off the remarkable feat of creating yet more confusion, and this in the course of a mere 48 hours. Continue reading

Advertisements

Land deal between Government and FARC in Colombia

by Rhodri C. Williams

Reports have emerged this morning that peace negotiations between the Colombian government and the left-wing Farc rebels have resulted in an accord on land issues. The chief Government negotiator, Humberto de la Calle describes the land agreement (here, in Spanish) as a measure that will “transform the rural realities of Colombia and create real changes that can close the gap between rural and urban areas.”

In both Mr. de la Calle’s official statement and the actual Joint Communication issued by the parties to the negotiations in Havana (both in Spanish), a good deal of stress is placed on the principle that “nothing is agreed until everything is agreed.” Thus, although the land accord represents a real breakthrough, it will remain no more than “principles that orient” the peace talks until the peace talks are concluded. And numerous challenges lay ahead, beginning with the next chapter of talks on FARC’s future political status.

However, there is certainly cause to take hope. While the current set of statements are vague on details, two principles appear to be clearly endorsed. The first is that the accord would support an equitable approach to land in rural areas, bringing broad-based economic and social development and securing land for campesinos. If implemented, this would quite simply set the last three hundred years of Colombian rural land policy on its head.

Second, the starting point for the accords appears to be the principle that those wrongfully dispossessed of their land in connection with the decades long conflict between the Farc and the government must receive a remedy. While the parties continue to disagree on who is responsible for how much dispossession (as between  right wing paramilitary groups that have enjoyed the tacit support of the Government in the past and Farc fighters), the establishment of the principle that victims should receive remedies in all cases, is a crucial breakthrough.

Just how crucial will be clear to anyone who has studied the long and tormented history of restitution proposals made during the previous process of demobilising right wing paramilitaries, beginning during the tenure of the previous President Alvaro Uribe, but only meaningfully engaged under the current President Manuel Santos. And a very healthy precedent was set by the fact that when restitution legislation was finally passed early in President Santos’ presidency, it applied in principle in favor of all victims, regardless of the perpetrator.

It is encouraging that the land accord reached in the Farc peace process appears to have bypassed the protracted wrangling over responsibility for dispossessions and other abuses that plagued paramilitary demobilisation. However, the most hopeful sign of all may be that the restitution process that resulted from paramilitary demobilisation appears to have taken hold, with a dedicated corps of restitution judges issuing fairly bold decisions on the return of land taken by notorious paramilitary groups, many of whom remain active – and dangerous – in the form of ‘criminal bands’.

The slow pace of the current restitution process and the continued risks to both claimants and adjudicators indicate the challenges that will face the eventual implementation of the Farc land accords. At the same time, the apparent commitment of the Santos Government to implementation of its restitution commitments in the wake of paramilitary demobilisation may give victims of the conflict with the Farc reasonable grounds for hope.

A happy ending for Eurovision?

by Rhodri C. Williams

I promise that this will be my last ever word on the Eurovision song contest. There are any number of good reasons for me to move on, not least the fact that Eurovision seems to move me to rant, which is honestly not my strongest genre. However, the best possible reason was handed to me on a plate by fresh-faced Emmelie de Forrest, who took all the honors and moved them conveniently from one peaceful Nordic democracy to another one a forty minute commute away.

And there were moments, as Azerbaijan nudged within a few ‘dix points’ of Emmelie’s comely heels, where I saw an alternative, dystopic future – a future in which I would once again be compelled to wander the darkened streets of the blogosphere, bitterly denouncing the capricious demolitions of homes in Baku, casting aspersions upon the political naifs of the European Broadcasting Union, and railing against the hypocrisy of ostensible guardians of democracy such as the Council of Europe, long since tamed by a steady diet of inflated per diems and caviar. Thank you, Emmelie, for sparing us all that.

But before I bow out of the debate about Eurovision and human rights fully, a few observations. First, despite the welcome contrast between Azerbaijan’s structural aversion to human rights (universality notwithstanding, how is one honestly to go about applying them in a dynastic autocracy fueled by oil patronage?) and Sweden’s imperfect but earnest efforts, the human rights did emerge once again as a background issue in this year’s contest.

Continue reading

Breaking news – Dissident arrests, police abuse and mass evictions in downtown Malmö by Swedish Eurovision hosts

by Rhodri C. Williams

Okay, that was the first completely bogus headline I have ever run in TN. But I bet it got your attention. You were probably skeptical, and rightly so, about connecting the phrases ‘dissident arrests’ and ‘mass evictions’ with adjectives like, well, ‘Swedish’. Unthinkable, right? However, if ‘Eurovision’ seemed similarly ill-placed in such unseemly company, that’s where things get interesting.

In fact, it was only last year that Europe’s annual fiesta of pop-culture self-congratulation was hosted by Azerbaijan, a dynastically ruled pseudo-democracy where strategic location, deep oil reserves and self-interested support for the ‘global war on terror’ have bought the regime a near complete pass on human rights observance. Sound like Gaddafi’s Libya in late 2010? Well, you wouldn’t be entirely wrong there.

A key difference, one might argue, was that Gaddafi’s Libya was not eligible to join prestigious European regional organizations like the Council of Europe, which are meant to ensure mutual respect for human rights standards among their members. However, the performance of the Aliyev regime in Baku appears to indicate that Mr. Gaddafi’s problem was largely geographical.

In fact, last year’s Eurovision contest went boldly forward where no autocracy had gone before, bulldozing a shrill chorus of human rights criticism with Wagnerian pyrotechnics even as entire neighborhoods were razed to improve the view from an arena built with purloined money, protesters were roughed up by police and dumped at the edge of town, and political prisoners continued to rot in jail, unenlightened by Azerbaijan’s spectacular entrance into Europe’s vacuous pop culture scene.

Continue reading

New report analyses the rule of law in Libya (as the transitional vetting debate tests it)

Libya Report coverI am very happy to announce that the International Legal Assistance Consortium (ILAC) has just published a new report based on the rule of law assessment I helped to organize last January in Libya. While I had a hand in writing the report, it is the product of a fruitful collaborative effort with the assessment team members, all of whom were experts representing ILAC’s member organizations. A pdf version of the report, as well as summaries in English and Arabic, can be accessed here.

The ILAC report focuses on the role of core rule of law institutions such as the private bar and judiciary, and sets out recommendations for enhancing both their independence and their effectiveness in a new, democratic Libya. A very important part of the report’s analysis focuses on how the legal system is affected by the current transition, and notes the dilemma for the judiciary in particular – in that regular courts are both saddled with the delicate task of bringing those accused of crimes in connection with the 2011 uprising to justice and are themselves likely to be the object of vetting efforts in connection to the role that some judges played under the Gaddafi regime.

Despite the rule of law focus, in other words, the report delves into a number of transitional justice issues, most notably prosecution and institutional reform. In this sense, it complements the earlier work I did for UNHCR on property and displacement issues, which approached the transitional justice debate in Libya primarily from the viewpoint of victims’ reparations. Our report also comes hot on the heels of the latest by the International Crisis Group (ICG), which focuses squarely on the current showdown between the state and judiciary on one hand, and revolutionary brigades on the other.

Continue reading

Land and Post-Conflict Peacebuilding: Customary governance, property rights, and state building in Afghanistan

by Jennifer Brick Murtazashvili

Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.

Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.

The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.

The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance.  This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.

Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes.  Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.

One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.

While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.

Continue reading