Back in November 2008, I wrote a commentary piece on the Darfur conflict for ISN Security Watch (Sudan: China is Key) with the phrase, “the incoming Obama administration can show its resolve to combat genocide.” I can no longer say with conviction that this loaded term is an appropriate description of what transpired in the region.

I have eschewed the label in my analytical reports ever since. All the same, the debate is an important one and warrants further scrutiny. It also highlights the intersection of politics and law in international criminal justice.

What transpired in Darfur, for the most part between 2003-2006, was certainly a grave humanitarian tragedy and an abhorrent counter-insurgency campaign, but did it amount to genocide?

Former US Secretary of State Colin Powell first described the conflict in Darfur as genocide back in September 2004, sparking a flurry of activism and prompting calls for military intervention. Since then, an inadequate but better-than-nothing AU/UN peacekeeping operation has been deployed, and the International Criminal Court (ICC) referred by the UN Security Council has opened a formal investigation, indicting among others, Sudanese President Omar al-Bashir for war crimes and crimes against humanity. The prosecutor of the ICC, Louis Moreno Ocampo, has continued to vigorously push for charges of genocide against Bashir for targeting the Fur, Massalit and Zaghawa tribes. This has invited accusations of politicization, as critics charge that the evidence is circumstantial.

Article 6 of the Rome Statute of the ICC defines genocide as:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

A seminal 2005 UN Commission of Inquiry Report on the Darfur conflict found that the various tribes of Darfur, although far from constituting homogeneous religious and ethnic entities, could be viewed as ‘subjective protected groups.’

The hitch with Mr Ocampo’s efforts is that he appears bereft of evidence to demonstrate genocidal intent on the part of the central government in Khartoum.

Indeed the Commission concluded in its findings that Khartoum was guilty of war crimes and crimes against humanity, but not genocide. As proof, it pointed to instances of select killings of would-be insurgents rather than entire populations, as well as the aggregation of conflict refugees in government-run camps not intended for extermination following hostilities.

Alex de Waal, a prominent Sudan expert, has denounced the prosecutor’s behavior.

Conversely, John Prendergast of the Enough Project and the Save Darfur Coalition in Washington DC continues to argue, as many others do, that the evidence for genocidal intent is conspicuous.

The Darfur conflict also has a regional dimension, suggesting a more archetypal proxy-war situation, but not excluding the possibility of genocidal behavior in individual cases, which is rarely broached in the mainstream press. Although the two have ostensibly reconciled in the past months, Khartoum was claiming not so long ago that Chadian President Idris Derby in N’Djamena – himself on French life support – funds the Darfur rebel groups. N’Djamena has accused Khartoum of similar behavior. The conflict also spills over into the northeastern Central African Republic (CAR). (Read The Tormented Triangle, a Crisis States Research Centre report on the regional aspect of the crisis.)

It is a debate. And the question of whether or not specific individuals in Darfur acted with genocidal intent is now for the judges in The Hague to ascertain. In the meantime, it is probably best for us to stick to the measured findings of the Commission report:

“The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.”

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Vice president Dick Cheney, a key architect of the war, anticipated the sectarian disintegration of a post-invasion Iraq back in 1994, but pushed for occupation in 2003 anyhow.

What happened to the seemingly rational, level-headed decision maker in the interim decade?

By Claudio Guler for ISN Security Watch, 23 February 2010

Two weeks ago, as snow blanketed Washington DC for the second time in a week, FOX News, the conservative news broadcaster, placed a copy of Al Gore’s “An Inconvenient Truth” in the snow and chronicled its entombment. “Poor Al Gore,” the moderator stuttered as he attempted to make out the former vice president’s increasingly snow-covered name.

The act was sensationalist, maybe even juvenile, but it evidenced a broader truth: On climate policy, as in many other issue areas in Washington, and in the US Congress in particular, the divide runs deep. Two US senators, however, now reckon they have a prescription for unity – at least when it comes to climate change legislation.

All CLEAR

A sufficient number of Americans, historically the biggest emitters of climate-altering greenhouse gases (GHG), fret that efforts to reduce emissions will stymie economic growth at a particularly precarious hour. Conservative measures of US unemployment stand at 10 percent. Moreover, existing cap and trade legislation, known as the Waxman-Markey Bill, languishes at the doorstep of the US Senate and has failed to inspire much enthusiasm.

Enter US Senators Maria Cantwell (Democrat) and Susan Collins (Republican) from Washington state and Maine, respectively. Senators Cantwell and Collins have jointly tabled the Carbon Limits and Energy for America’s Renewal or CLEAR Act, and argue that the cap and dividend system it proposes offers up a fresh approach to reducing America’s GHG emissions.

Cap and dividend is the brainchild of social entrepreneur Peter Barnes. The concept made its first appearance in the US Congress as the Cap and Dividend Act of 2009, introduced into the lower legislative chamber by Representative Chris Van Hollen, a Maryland Democrat.

As the name suggests, cap and dividend sets a cap on GHG emissions nationally and then reduces them incrementally over time, in turn establishing a price for carbon emitted into the atmosphere. However, unlike cap and trade, cap and dividend does away with the trade component and focuses instead on cushioning the economic impact for consumers.

Rather than capping emissions downstream at the end user, focusing typically on large-scale emitters, the CLEAR Act proposes limiting emissions upstream, where fossil fuels first enter the US economy. Auctioning off permits upstream, argue proponents, simplifies monitoring and verification as fewer entities have to be tracked, and behaves much like a carbon tax on energy suppliers, except that it guarantees a limit on total GHG emissions, which a straight tax would not. First sellers then pass the increased costs on to consumers, who in turn experience higher prices at the pump.

In return, to help consumers compensate for higher energy costs, the CLEAR Act suggests returning three-fourths of the revenues from permit auctions to consumers directly, approximately $1,000 per year for a family of four. Because dividends are paid out on a universal basis, those individuals who use carbon-based energies most intensely would eat away at their dividend fastest.

The CLEAR Act proposes depositing the remaining fourth of the revenues into a government trust fund to finance other emissions reduction projects and adaptation measures, and to iron out regional disparities. One critique of cap and dividend is that because it targets emitters upstream, it may disproportionately hurt areas that rely heavily on fossil fuels production, such as the coal-mining region of West Virginia and eastern Pennsylvania.

The overarching appeal, nevertheless, is the scheme’s transparency and egalitarianism. Supporters also like to point out that politically, cap and dividend’s small government dividend structure practically sells itself.

Regarding the CLEAR Act, John Diamond, spokesman for Senator Maria Cantwell, told ISN Security Watch, “We’re off on a bipartisan footing with Senator Collins and we’re excited about that. We’re getting a good buzz in terms of the media, viewing it as a viable alternative idea.

“The fact that Senator Collins is on board is so critically important to the bigger picture, because the voices saying that climate legislation is doomed have been citing as Exhibit A the healthcare debate, which ended up being strictly partisan. We don’t necessarily see this as being in the same box at all. We feel like we’re off to a good start.”

Others are equally sanguine. James Hansen, an eminent climatologist, has testified before the US House Committee on Ways and Means in favor of a carbon tax and 100 percent dividend.

Research by Dr James K Boyce and Matthew Riddle from the Political Economy Research Institute at the University of Massachusetts, Amherst found that a cap and dividend policy would have a strongly progressive net effect.

A return to the drawing board?

What are the implications for EU mandarins in Brussels who put in place the EU Emissions Trading System (ETS), a cap and trade design?

Laudable for its proactivity, the EU ETS is all the same a massive and at times perplexing instrument. Critics draw attention to its inability so far to set a carbon price that is stable and high enough to spur investment in green technologies. To ensure price stability, the CLEAR Act proposes a price collar.

Unlike the EU ETS, cap and dividend does not discriminate and would treat all carbon emissions equally, covering for example cars and homes too, not just large-scale, concentrated polluters.

Because the EU ETS incorporates a trading mechanism, emitters can sometimes earn credits that equal permits by funding emissions reduction projects abroad where it is cheaper, so-called offsets. The problem is that offsets often leave uncomfortable room for cheating. Removing the trading mechanism also keeps Wall Street at arms length.

Most importantly, however, advocates note that the CLEAR Act does not call for ‘giving away’ the majority of permits to special interests, a practice that plagues both the EU ETS and the Waxman-Markey cap and trade bill, and can lead to windfall profits for firms with excess permits to sell.

Speaking with ISN Security Watch, Boyce explained, “By putting a cap on emissions, you’re in effect creating a set of property rights where before there was open access and emitting was free. The reason you create property rights is to respond to the problem of scarcity, in this case the scarce carbon absorptive capacity of the biosphere. Creating property rights requires decisions about who gets those property rights: They have to be distributed to somebody in some way. What cap and dividend in effect does is it says that the rights to the United States’ share of the global carbon absorptive capacity are shared in common and equal measure amongst all the people of the country.”

The irony of the profligate Americans potentially moving into position to upstage the green Europeans goes without saying.

Where is Al Gore on all this?

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Western forces in Afghanistan are there for security purposes, and security purposes alone. Other considerations, though probably of the best of intentions and in certain instances constructive, largely serve as window dressing. The issue is: the security imperative fails to impress.

Recent developments, namely the Fort Hood shooting in Texas and the attempted Christmas day bombing on board a Detroit-bound airliner, illustrate the futility of NATO’s anti-terror operations in Afghanistan.

There is nothing special about Afghan real estate. Yemen, Somalia, Pakistan, Nigeria, the US, the UK, the Internet, etc…all make for promising substitutes. The developments have also brought into stark relief the matter of fact that the global jihad ideology championed by al-Qaida is highly fungible, transnational and probably impossible to stop without a genuine waning of anti-American and anti-Western sentiments in the Muslim world.

It follows then that ending the West’s military presence in the Muslim world in particular, or at minimum limiting it as best as possible, is a crucial step in mitigating this threat. NATO in Afghanistan, above all else, is kindler for the fire it is ostensibly in country to suppress.

A more reasonable and less abrasive approach would entail heightening homeland defense measures domestically, working by way of multilateral channels where possible internationally, and carrying out any remaining international security objectives (particularly in the field of terrorism) in a more clandestine fashion.

Adopting such a posture would significantly reduce public expenditures, create jobs back home by expanding the payrolls of national security organs and generally work toward bankrupting the arguments used to recruit young jihadis.

Some commentators, moreover, point out that NATO’s protracted stay in Afghanistan is as much about safeguarding Pakistan’s nuclear weapons as it is about taking the fight to al-Qaida. Maybe, but…

The US already slips Islamabad a billion plus dollars per year, in part, expressly for that purpose. Concerns over Taliban and al-Qaida fighters overrunning the Pakistani military are equally misplaced. Pashtun militants, the ethnic group from which the Taliban hail, can already launch strikes against the Pakistani government and military from inside Pakistan. So far, they have managed to shake, but hardly dislodge the ruling establishment. What is more, since its formation following independence in 1947, the Pakistani military has been a Punjab-dominated institution, one unlikely to afford marginalized Pashtuns a greater say anytime soon.

The West’s security rationale for staying in Afghanistan is weak. That said, inertial forces are likely to secure NATO’s sojourn for a good while longer. They include:

(1) the financial incentives provided by a bloated US military-industrial complex;

(2) the impulse to maintain a Western foothold in this geographically isolated yet geostrategically significant corner of the world;

(3) the reality that US troops are scheduled to pull out of Iraq by late 2011 and as such are surrendering an important western flank against Iran, undermining US containment policy and, without Afghan territory, largely limiting US access to Iran in the event of a US-Israeli strike against the country’s nuclear facilities to the Persian Gulf.

Fifty-odd years on, Colonel Mathieu’s admonition persists. “Should we remain in Algeria? If you answer “yes,” then you must accept all the necessary consequences.”

By Claudio Guler for ISN Security Watch, 14 December 2009

Involvement by the International Criminal Court (ICC) in Afghanistan, Israel-Palestine and potentially the UK and Canada is showing itself an emerging challenge to the disparity between strong and weak states in international criminal justice. For the strong and high-minded, it is an inconvenient lot.

In many ways, including in particular implementation mechanisms for judicial decisions, a comprehensive framework for international criminal justice lags. The ICC, launched in 2002, institutionalized the international community’s resolve to hold to account individuals implicated in the violation of jus cogens or peremptory norms of international law, violations so grave as to make their perpetrators hostis humani generis or enemies of all mankind.

The Rome Statute of the ICC gives the Office of the Prosecutor (OTP) jurisdiction over war crimes, crimes against humanity and genocide, committed on the territories or by nationals of “States Parties.”

A principal impediment to the development of a comprehensive framework is the non-participation of strong states, hindered by their concerns over sovereignty and the potential for politicization of international judicial actions. Chief among them is the US. This category also includes China, Russia, India, much of the Middle East and North Africa, and Southeast Asia.

The weak

For states toward the bottom of the international power hierarchy, acceding to the Rome Statute yields benefits. These include: projecting deference for the rule of law, gaining access to a forum to influence other states, and earning a modicum of protection against the use of force by other – usually more powerful – states on their territories.

But with several Congolese in the dock, a head of state under indictment and fat cat, rabble-rousing politicians in Kenya wondering who will be first to face the music, many in Africa perceive that the ICC is inordinately targeting the weak.

This perception, however, is misleading. The Democratic Republic of Congo, the Central African Republic, Uganda and Kenya are all ‘States Parties.’ Sudan is not; but was legally referred to the ICC by the UN Security Council. African countries, moreover, disproportionably suffer from dysfunctional judicial systems that often necessitate outside assistance.

In a broader sense, though, many observers of international affairs acknowledge the critique is legitimate. Strong states, particularly in the West, often preach justice, but seldom conform to their own standards internationally.

ICC involvement or the looming threat of ICC involvement in two ‘non-States Parties’ and two ‘States Parties,’ all regarded as strong or fairly strong actors in international affairs, suggests a correction may be in the works.

False alarm

Since September, conservative pundits in the US have fretted that ICC chief Prosecutor Louis Moreno-Ocampo’s decision to preliminarily look into allegations of Statute crimes by belligerents in Afghanistan could implicate US citizens. The development is precisely the scenario they warned of, they sigh; the Bush administration’s hostility toward the Court is vindicated. Afghanistan has been a States Party to the ICC since February 2003.

But, in speaking with ISN Security Watch, Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court, points out that, “The prosecutor’s announcement that he’s looking into allegations against combatant forces in Afghanistan should cause little concern in the US if its military justice system and civilian controls are operating properly and with adequate transparency to assure the OTP that ICC involvement is unnecessary.”

Niamatullah Ibrahimi, co-founder of Afghanistan Watch, a human rights organization in Kabul, and the focal point of the Coalition for the International Criminal Court (CICC) in Afghanistan, explained to ISN Security Watch via e-mail that, “Although little is known about the prosecutor’s intentions in Afghanistan, two issues involving international forces remain the most controversial: detention and treatment of suspected insurgents and civilian casualties during their air bombardments. Many of their operations have apparently mistakenly hit civilian targets. An important question regarding these incidents is whether more careful planning and intelligence gathering could have avoided the damages caused to civilians.”

Schiff reckons, moreover, that the prosecutor’s preliminary investigation in Afghanistan may also yield information about the misdeeds of actors other than the US – including perhaps the Taliban. “This should be viewed as salutary by the US.”

Should Ocampo decide that US efforts are falling short, in theory, he could complicate travel for select US servicepersons or policymakers. Detention and transfer to The Hague, however, looks unlikely. Afghanistan’s 2002 ‘Article 98’ Bilateral Immunity Agreement (BIA) with the US precludes Kabul from surrendering US citizens to the ICC.

Upon entering office, the Obama administration rescinded the coercive sanctions that accompanied BIAs. All the same, the US-Afghan agreement remains on the books and it is unclear whether or not the Obama administration would move to enforce it.

Goldstone

The uncomfortable spotlight of international criminal justice has also fixed on Israel and its conduct during ‘Operation Cast Lead’ in December-January 2008-2009. Although Israel is not a States Party – necessitating a highly improbable UN Security Council referral for ICC intervention – international outrage at what was widely viewed as Tel Aviv’s disproportionate response to Hamas rocket fire produced the controversial Goldstone report.

The report urged both Hamas and Israel to conduct their own investigations into its findings. If they declined, it recommended the UN Security Council refer the situation to the OTP of the ICC.

Schiff argues, “Despite the invective to which it has been subjected, the Goldstone report did uphold a conventional interpretation of war crimes norms as established in the Geneva Conventions. The response to it has, predictably, been entirely political.

The report’s effect might have been greater if the UN Human Rights Council itself had greater international respectability, but the basic problem is that any attempt to deal judicially with this extremely politicized situation gets submerged by vituperation. If the alternative to the Goldstone report was no international investigation or response to the Gaza conflict at all, then the fact that the investigation was carried out, responsibly drafted and publicized is, on balance, a positive measure in upholding international standards,” he said.

Not I…

Elsewhere, two countries that are also influential actors in international affairs as well as States Parties to the ICC are equally set to test their commitment to justice.

Humble Canada could face criminal action. Whistle-blower and Canadian diplomat Richard Colvin last month charged that Canadian Forces failed to properly monitor detainee conditions in Afghanistan. He also claimed that Ottawa ignored repeated warnings about detainee transfers to Afghan units known to perform torture.

The government initially dismissed calls for a public inquiry. Canada is a States Party and the ICC could intervene if Ottawa fails to maintain complementarity standards.

Human rights watchdogs have been calling on the UK to conduct judicial inquiries into allegations of British complicity in torture in Pakistan and elsewhere overseas for close to a year now. The government has stonewalled.

New York-based Human Rights Watch published a report, Cruel Britannia, last month, which details the cases of five UK citizens of Pakistani origin who claim to have been tortured in Pakistan by Pakistani security agencies between 2004 and 2007. The report finds no direct evidence of UK participation, but argues that complicity is obvious.

Amnesty International said in a 10 August press statement: “Amnesty International urges the UK authorities not to pick and choose when they will observe their legal obligations: torture and complicity in torture are absolutely banned. It is high time for the British government to have its record assessed and for those who may be responsible for such serious abuses to be held accountable.”

According to a 26 November Daily Mail article (UK), if swept to power in upcoming elections, the opposition Tories claim they would support a wider inquiry. The UK is a States Party, and although the press has eschewed the point so far, ICC intervention is plausible.

As US President Barack Obama stated in reaction to Iran’s election turmoil in June, quoting Dr Martin Luther King, “The arc of the moral universe is long, but it bends towards justice.”

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By Claudio Guler for ISN Security Watch, 9 November 2009

Analysis suggests that the US surge in Iraq, and the troop increase in particular, did not bring about an end to Iraq’s civil war in 2006-2007. Rather, the surge dovetailed a series of converging dynamics on the ground, facilitating more so than engendering a cessation of hostilities.

Iraq’s civil war was foremost about the country’s violent post-invasion shift from a Sunni minority-run state under Saddam Hussein to a Shia majority-run country. Maps developed by Dr Michael Izady for Columbia University’s School of International and Public Affairs (SIPA) Gulf/2000 Project, an information center on Persian Gulf countries, which have tracked the sectarian make-up of Baghdad in the post-invasion period illustrate this sea change.

”Ethnic Groups in Baghdad’ – a set of five maps – depict the all but complete sectarian cleansing and segregation of Baghdad during 2006-2007.

Surges and sahwat

The US surge in Iraq or “The New Way Forward,” announced by President George W Bush on 10 January 2007, included three components. First, US commanders on the ground reformed their tactics, focusing on safeguarding the civilian population and adopting a ‘clear-hold-build’ versus a more rudimentary ‘clear’ strategy for counterinsurgency.

Second, the US surge successfully embraced the Sunni ‘awakening’ movements or sahwat. Lastly, the surge called for the deployment of an extra 28,000 US troops, the lion’s share to Baghdad.

The first two components helped temper the bloodletting. The third likely played a marginal role in stamping out smoldering embers.

Starting in 2005 and gaining momentum through much of 2006 and 2007, the sahwat, an alliance led by Sheikh Abdul Sattar al-Rishawi, played an integral role in ending Iraq’s civil war.

The fall of Saddam Hussein robbed Sunni tribal sheikhs of their longtime patron. An influx of foreign fighters, many with jihadi ambitions, links to al-Qaida and an appetite for indiscriminate violence complicated their predicament.

Welcomed at first and harbored by Iraq’s Sunni population, the sheikhs and their constituents eventually determined that the foreign fighters, many fighting under the guise of al-Qaida in Iraq (AQI), were hindering more so than advancing their cause. AQI began challenging the authority of the Sunni sheikhs, and increasingly, egged on a civil war with the Shias that the Sunnis could hardly expect to win.

Many Sunnis also disagreed with AQI’s ideological aspirations. Whereas most of Iraq’s Sunnis favored a nationalist agenda, AQI yearned for the reactionary Islamization of Iraq.

By late 2006 and moving in to 2007, the US embraced the sahwat, put them on Uncle Sam’s payroll, encouraged the tribes to stop providing safe haven to AQI and urged them to curtail their own use of force. It worked. By May 2007 the sahwat had largely expelled AQI and curbed their fighting. Analysts and journalists have since attributed much of the decline in violence to their exertions.

But some observers, including Dr Izady, point out that this account, though accurate in the main, fails to explain why the Sunni tribes so willingly acceded to US support, in effect tying their fate to US magnanimity.

The answer rests with Sunni fears of imminent Shia vengeance and hegemony.

The Baghdad purge

Eight-tenths of the violence in Iraq befell Baghdad and its surrounding areas. An explosion in Baghdad paid high political dividends and was quickly reported around the world. More significantly, pre-invasion Baghdad was the most ethnically diverse region of Iraq.

Dr Izady developed his maps using dozens of itinerant civilian informants in Baghdad. What his maps show is that from early 2006 to mid 2007 – the al-Askari mosque bombing in the city of Samarra in February 2006 marked the start of Iraq’s civil war – the Mahdi army and affiliated Shia militia groups cleansed Baghdad of Sunnis, forcing diehards into Sunni stronghold neighborhoods in the western part of the city.

The gains were astounding. Izady explained to ISN Security Watch, “Judging by the body counts at the time in the Baghdad morgues, three Sunnis died for every Shia. Baghdad – basically a Sunni city into the 1940s, by the end of 2008, had only a few hundred thousand Sunni residents left in a population of over 5 million.

“However regrettable,” continued Izady, “if the massive Shia killing of the Sunnis and comprehensive ethno-sectarian cleansing had not taken place, the prospect of the Sunnis ‘awakening’ and sensing their imminent destruction or subjugation by the Shias would not have transpired.

“The surge was the psychological marker that the US could and in fact might leave and let the Sunnis deal with the Shias alone. From 2003 when the Sunnis saw the US and coalition forces as enemies to be ejected from Iraq, to fall 2007 where the Americans were seen as the only force standing between them and the vengeful Shias in their millions, a 180-degree transformation had taken place.”

In August 2007, Muqtada al-Sadr, the leader of the Mahdi army declared a unilateral ceasefire. Although the motives for his decision were manifold, including increased US military pressure, the sectarian cleansing and consequent shift in the balance of power was complete.

A bomb killed Sheikh Abdul Sattar al-Rishawi on 13 September 2007; suspicion fell on AQI, not Shia militia groups. Nonetheless, the Sunni alliance had lost its charismatic leader.

By August/September 2007, Iraq’s civil war was over. Since US troops withdrew from Iraq’s cities on 30 June 2009 the violence has not returned. Baghdad remains divided.

In a 3 November 2008 report, IWPR quoted Iraqi defense ministry spokesperson Brigadier General Muhammad al-Askari as saying, “I do not think al-Sahwa elements have the ability or desire to take up arms against the government, because they are now in need of protection from [the groups they have been fighting].”

Did the civil war of 2006-2007 lay the groundwork for a new dictatorship – in this case, a dictatorship of the majority? Izady reckons, “The Kurds are safe in their mountains, and all but independent since 1991; the Shia are having a field day with their newfound (and absolute) power, and the Sunnis – whose numbers might have been reduced to just about 12 percent of the Iraqi population (due to massive emigration to Syria and Jordan) – are the ‘endangered species.’ An odd turn of events, where the dominant force in Iraq since its inception in the 1920s is now a tertiary force at the mercy of the primary Shias, whose idea of democracy is a ‘dictatorship of the majority’?”

The Afghan version

The dissimilar contexts of Iraq and Afghanistan aside, advocacy of a US troop surge in Afghanistan based on the perceived efficacy of added boots in Iraq is likely just that – a perception.

The civilian/ethno-sectarian death toll in Iraq peaked in December 2006-January 2007, suggesting US soldiers were unable to check the sectarian bloodshed at its high point, and the preponderance of the sectarian cleansing occurred well in advance of the US troop increase to Baghdad.

The troop increase became operational a short time before the end of the civil war, in mid-June 2007. Enough time, roughly two months, to nudge the various Shia militia groups to back down, but insufficient time to end a civil war the US did not control.

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By Claudio Guler for ISN Security Watch, 8 October 2009

The irony is that in putting many of us out of work, the global economic recession has reduced greenhouse gas (GHG) emissions at an unprecedented scale. This portends well for the environment, particularly in the short run. But in considering the big picture, the recession has dented the menace of climate change only marginally.

Participants to the UN climate change summit on 22 September in New York (hailed by the UN as the largest so far in terms of heads of state and ministerial-level participation) underscored this assessment. President Hu Jintao of China won substantial plaudits for proclaiming his country’s commitment to curb GHG emissions, albeit offering up few specifics.

In his speech, Hu repeatedly framed coming efforts under the banner of “common but differentiated responsibilities,” acknowledging the need for developing countries to partake, and maybe, but unlikely, hinting at the developing world’s own fast-accruing record of atmospheric pollution.

Part of the solution will likely be REDD, reducing emissions from deforestation and forest degradation. The process is riddled with pitfalls and burdened by a tree-hugging stigma, but deforestation accounts for roughly 20 percent of global GHG emissions, the second largest driver of anthropogenic climate change after the burning of fossil fuels.

Although big emitters China and India will likely have little to do with REDD – they host few tropical forests – other middle- and low-income equatorial countries will be primary targets. REDD will have to focus on tropical forests because of their elevated climate change mitigation potential. Tropical forests have a higher albedo and recycle carbon dioxide better than their northern counterparts. What is more, they exhibit the most alarming rates of deforestation.

The prime target regions for REDD include the Amazon in Brazil; Southeast Asia, from Myanmar/Burma to the Philippines and Indonesia; the Congo basin; Madagascar; and the southern tip of Central America.

Pros and cons

REDD presents several benefits. First, REDD may be rather inexpensive. Numbers floated by researchers so far range in the neighborhood of $50 billion per year. (Caveat: REDD costs are highly dependent on the development of an effective monitoring, reporting and verification (MRV) regime that prices the carbon in trees.)

Second, as suggested above, the emissions reduction and consequently ecological impact of REDD could be considerable.

Finally, if carried out graft-free – and this remains a big if – REDD could have positive developmental effects by funneling money to some of the world’s poorest.

REDD, however, also entails numerous challenges that will likely try its implementation. Monitoring and verification of REDD projects could turn out to be onerous undertakings.

Protecting the tenurial rights of indigenous people living in forests, a constituency that already enjoys little voice in international circles, will also be difficult. They risk being neglected altogether.

David Brown and Neil Bird have pointed out in an Overseas Development Institute opinion that for REDD to be developmentally sound and socially just, policymakers have first to understand, “the social, institutional and political conditions that drive land use change and that often operate beyond the forest sector at local, national and international scales.”

Deforestation, moreover, is in large measure the result of illegal land use that for many governments is difficult to control. The countries that host the largest swaths of tropical forest often also happen to suffer from anemic and dysfunctional legal systems.

As such, the greatest obstacle to REDD is misaligned economic incentives. For some, land use that causes deforestation is a lone avenue to escape the misery of poverty. For others, and less nobly, illegal logging and land use yields handsome profit that is hard to forgo. To counter this, REDD will have to pay people to plant, and more crucially, to not cut down trees.

Creeping action

Under the existing Kyoto framework developing countries can apply for Clean Development Mechanisms (CDMs) to help fund projects that mitigate GHG emissions, but REDD does not qualify, yet. The CDM Executive Board can only fund projects that demonstrate ‘additionality.’ In other words, planting a new tree counts, but saving one from being felled does not.

Critics of channeling REDD through CDMs moreover fear that if approved, developed countries may use the mechanism to outsource the business of emissions reduction by earning Certified Emission Reductions or carbon credits, which they can then turn around and use to meet their own emissions reduction targets. If a developed country concomitantly eschews improvements back home, this would in effect amount to cheating.

The private and non-for-profit sectors also carry out REDD projects. However, their impact is limited, and setting and maintaining standards for emissions reductions on an individual basis is highly problematic.

Seeking to tackle the problem from an alternative angle, environmentally conscious policymakers in net timber consuming countries have taken to defensive measures to limit deforestation outside their borders.

The EU’s FLEGT initiative – Forest Law Enforcement, Governance and Trade – partners with producing countries on a voluntary basis to set up licensing schemes that discriminate against illegal timber entering the European marketplace. The US has also started to control the importation of illegal timber under the 1900 Lacey Act. It was amended in 2008 to include such protections.

Curiously, some researchers suspect import controls may ultimately yield more benefits than paying people for REDD.

As the deadline for action in Copenhagen nears, REDD may come to define equatorial developing countries’ “common but differentiated responsibilities.” Given the wholesale potential for REDD to attenuate the deleterious effects of global climate change, continuing its exclusion in a post-Kyoto agreement may be passing up an imperfect but potentially constructive opportunity.

Speaking with ISN Security Watch by telephone from London, Jade Saunders, an associate fellow of the Energy Environment and Development Programme at Chatham House, a UK think tank, is nevertheless cautious.

“Don’t assume that all of this comes down to money. There are complicated cultural and capacity challenges to reducing deforestation. If we raise $50 billion and spend it in ways that we already know don’t work, there is a good chance we won’t have any impact at all on global carbon emissions.

“My call would be for a more thoughtful approach to REDD, one which bears in mind and learns from the history of forest interventions over the past several decades.”

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By Claudio Guler for ISN Security Watch, 13 Jul 2009

Judge Alan S Gold of the United States Florida Southern District Court was to preside over civil proceedings in the tax dispute between the US and Union Bank of Switzerland (UBS) later today in Miami. US authorities are outraged that UBS client advisors roamed the US from 2002 to 2007 in search of wealthy clients and provided them with unlicensed, tax-free wealth management services.

The US hopes to crack Switzerland’s banking secrecy and obtain the client information of up to 52,000 high-net-worth Americans suspected of withholding an estimated $14.8 billion in taxes from the US Internal Revenue Service (IRS). The Swiss are looking to hammer out a deal that preserves banking secrecy and eschews further disrepute. The US claims that tax havens deprive its treasury of roughly $100 billion a year.

UBS admitted wrongdoing on 18 February 2008, after a former US-based employee, Bradley Birkenfeld, informed on the bank in exchange for a reduced penalty in his own tax fraud investigation. UBS entered into a Deferred Prosecution Agreement and pledged to cooperate with US authorities or again face criminal charges. It also released the names of some 300 alleged US tax cheats, paid a $780 million fine and immediately began exiting the US offshore wealth management business.

The IRS, with the backing of US Senator Carl Levin (D-Michigan) who has since introduced the Stop Tax Haven Abuse Act in the US Congress, felt a civil suit was the best and possibly only means to compel UBS to cooperate and demanded UBS reveal its entire roster of American offshore clients. UBS and the Swiss authorities declined, arguing that the request constituted a “fishing expedition” and would expose UBS employees to criminal proceedings in Switzerland.

The Swiss have largely deemed the IRS’ follow-up civil suit an underhanded blow. They accuse the US – a country with questionable corporate taxation practices of its own, a fresh record of financial calamity, and a thirst for funds to plug fiscal deficits – of targeting asymmetric Switzerland unreasonably.

Yet UBS and Switzerland are on the defensive. UBS’ actions assured that should a climate of fiscal thrift arise, the proverbial sleeping dog would be prime for an awakening. Now, a compromise, one that avoids devastating entirely the integrity of Swiss banking secrecy increasingly looks like the best Switzerland can hope for.

Recent glimmers of hope have proven ephemeral. Switzerland renegotiated a double taxation treaty with the US on 19 June: It is still in ministerial channels. The move is part of Switzerland’s broader initiative to renegotiate 12 double taxation treaties before the end of 2009 to bring itself into line with OECD standards on information exchanges and get off the OECD’s grey list. Some hoped, to no avail, that these negotiations would also resolve the tax dispute.

On 23 June, the New York Times published an article headlined “Settlement Anticipated in UBS Case,” which quoted an American official arguing, “To have a complete meltdown in Swiss-US relations and go to the mat with Switzerland three years from now when money is getting back into the system doesn’t make sense.” The US swiftly denied the official’s conjecture. UBS has three years to appeal any adverse ruling by Judge Gold.

In the interim, frustrations are growing and Swiss-US relations are suffering a setback. The conservative Swiss People’s Party (SVP) is pining to anchor banking secrecy in the national constitution. Other, smaller Swiss banks are avoiding or retreating from the lucrative US market altogether, never mind their legal status.

If releasing names in bulk is not an option for Switzerland (assuming it can mount and maintain a proper defense), the US and Switzerland will likely have to reach a diplomatic compromise – it promises to be expensive. Swiss Finance Minister Hans Rudolf Merz hinted on 7 July that USB might consider paying back lost taxes. Switzerland has also been in talks with the US to receive Guantanamo Bay inmates as President Obama shuts down the base. These overtures, however, may be ineffective in the short run.

In response to the UBS scandal, on 23 March, the IRS initiated a temporary, more lenient voluntary disclosure program to encourage US taxpayers with offshore accounts to come clean.

Considering the unusually aggressive nature of the US’ offensive against UBS, it seems unlikely that the US would settle before the IRS concludes its program has paid adequate dividends. Moreover, for the US, this case is about money, but it is also about names, sovereignty limitations, and just maybe, some showcase criminal proceedings down the road.

If a settlement is in the cards, it may still be some time. But the trial injunction looks auspicious.

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By Claudio Guler for ISN Security Watch, 5 Jun 2009

Khartoum’s 4 March expulsion of 13 private international aid agencies in retaliation for the International Criminal Court’s (ICC) arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir has left a significant aid gap in its wake. With the rainy season fast approaching, humanitarian circumstances in Darfur stand to deteriorate.

The expulsion likely secured diplomatic leverage for Bashir, mostly in delaying the peace process. But observers note that it also showcased callous disregard and did little to demonstrate willingness to pursue peace in Darfur. Speaking in Cairo on Thursday, US President Barack Obama described the Darfur conflict as “a stain on our collective conscience.”

In an attempt to put the peace process back on track, the US is pressing diplomacy. It has yielded limited results and holds out hope for more, but Darfuris are unlikely to emerge unscathed.

Ejected agencies expect the worst

The expulsion targeted aid agencies in Northern Sudan and Darfur only, sparing operations in Southern Sudan. Melissa Winkler, communications director for the International Rescue Committee (IRC), one of the expelled aid agencies, told ISN Security Watch, “The aid agencies expelled carried out an estimated 60 percent of aid operations in Darfur.” The UN reckons the sustenance of one million people or more is on the line. Filling the aid gap will not be easy.

Disease, more so than food and water, is now the chief humanitarian concern. The rainy season, which spans June to September, typically increases the incidence of water-borne diseases such as malaria, cholera and diarrhea. This year, with the aid agencies absent, tasks such as servicing latrines may go unattended, enabling the spread of disease.

The UN’s World Food Program (WFP) and World Vision – a Christian humanitarian charity organization – among others, have stepped up operations to get food and water to those affected by the NGO expulsion. On 15 March, WFP distributed two-month of food rations. These are now nearing depletion and any efforts to distribute supplies since have been ad-hoc. Khartoum insists that it alone will compensate for the aid gap.

Alun McDonald, regional media and communications officer for the Horn, East and Central Africa for Oxfam UK – also one of the expelled aid agencies – told ISN Security Watch in a recent telephone interview, “The longer it drags on, the worse it could potentially get. I don’t think there’ll be a sort of tipping point, unless the rainy season brings on an outbreak of disease. Over time it will gradually get worse.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies. However, no convincing word of such developments has been reported. Sudan, moreover, is a difficult country to work in; Khartoum confiscated all of the expelled aid agencies’ assets before showing their personnel the door.

McDonald elaborated: “Working in Darfur is extremely difficult, given the security situation. It’s even more difficult because it takes a lot of paperwork and negotiations with the government [to set up operations].” In 2004 and 2007, the Sudanese government signed agreements pledging to ease restrictions for aid agencies, but he claims that “not much of that was ever really implemented.”

In deciding which aid agencies to expel, Khartoum settled on high-profile, western organizations from the US, the UK and France, accusing them of colluding with the ICC. The reasoning fits well with Bashir’s repeated characterization of the ICC as an arm of western imperialism. An aid worker who spoke to ISN Security Watch on condition of anonymity adds, “There is a feeling that some of the expelled agencies are among the more outspoken ones, or ones that have been involved in sensitive work, around victims of sexual abuse and mental health.”

Pushing diplomacy

The US and Qatar have spearheaded diplomatic efforts to advance the enervated Darfur peace process. Qatar is providing the forum. The US, represented by Special Envoy Scott Gration, has spent the past two months urging stakeholders to the table.

Gration traveled to Sudan in April and May. He returned from his initial trip in April calling for closer US-Sudanese relations, reasoning this was the best way forward. His exertions, moreover, likely convinced Bashir to permit the remaining aid agencies to step up their activities and fill some of the aid gap.

The special envoy also visited China, Qatar, the UK and France in May and June. His trip to China – Khartoum’s most influential ally – produced some mildly auspicious results. Foreign Ministry spokesman Ma Zhaoxu announced to reporters on 26 May that China was ready to work with the US to “promote settlement” of the Darfur conflict. On 28 May, China’s envoy to Sudan, Ambassador Liu Guijin, met with members of the Darfur rebel group Justice and Equality Movement (JEM) for the first time in Qatar.

Just yesterday, the US announced it would host a peace conference on 23 June to assess implementation of the 2005 North-South Comprehensive Peace Agreement (CPA), hoping to use the occasion as a stepping stone to reinvigorate the Darfur peace process.

Following in the footsteps of US Senator John Kerry (D-MA), who visited Sudan back in April, Senators Johnny Isakson (R-GA) and Bob Corker (R-TN) traveled to Sudan from 25 to 27 May. They too returned expressing optimism. Yet on 26 May, the UK paper The Independent reported Bashir lashing out at the aid agencies once again, this time accusing them of fomenting regime change.

Khartoum resists engagement

In his inauguration speech in January, Obama offered some of the world’s more unsavory regimes a compromise: “Unclench your fist, and the US will extend you a hand.”

Sudan is testing the limits of this approach. The US has engaged, but Khartoum has been reluctant to reciprocate, particularly concerning the critical, humanitarian issue of the expelled aid agencies. Readmission would serve as an olive branch in Khartoum’s pursuit of warmer US-Sudanese relations and do much to help Darfuris.

On Friday in New York, chief prosecutor of the ICC, Louis Moreno-Ocampo, will address the UN Security Council in his biannual report. He has, as of late, argued that ICC judges would soon approve a genocide charge for Bashir.

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By Claudio Guler for ISN Security Watch, 8 May 2009

Pre-Trial Chamber I of the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir on 4 March on seven counts of war crimes and crimes against humanity, and as anticipated, he retaliated. The US has stepped in, yet maybe not forcefully enough, and Washington risks getting hoodwinked.

Retaliation

The day after the issuance of the arrest warrant, Khartoum accused 13 private international humanitarian aid agencies of cooperating with the ICC, revoked their licenses and expelled them from its territory. Estimates given by the aid agencies to various media sources suggest international humanitarian organizations – including among others Oxfam, Médecins sans Frontières and the International Rescue Committee – provide anywhere from 40 to 70 percent of the aid internally displaced Darfuris need.

In addition to expelling the aid agencies, al-Bashir embarked on a regional grandstanding tour. He secured the support of the Arab League (AL) and the African Union (AU), and paid visits (in sequence) to Eritrea, Egypt, Libya, the Arab League Summit in Doha, Qatar, Saudi Arabia and Ethiopia.

South Africa is the first country to have told al-Bashir that it could not host him for newly elected President Jacob Zuma’s inauguration because of its legal obligations under the Rome Statute of the ICC. Botswana has dissented from the AU position as well.

Peace vs justice

The concern, particularly among humanitarians and peace negotiators, is that the pursuit of justice conflicts with the pursuit of peace.

In the Sudan, they fear, the ICC’s actions are disrupting peace negotiations and humanitarian aid to suffering Darfuris. The ICC, however, was established as an autonomous, apolitical, judicial institution. If the evidence against al-Bashir is convincing and meets the threshold for prosecution, the Prosecutor and Chambers should proceed, argues Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court (Cambridge University Press, 2008). Under the Rome Statute, responsibility for the political judgment that suspension or delay would be appropriate lies not with the Court, but with the UN Security Council and the Permanent Five in particular.

Under US President Barack Obama, the Permanent Five’s most prominent member finally looks set to shake its disdain for the ICC.

Fence-mending

US support for the ICC would likely reinforce the case against al-Bashir. After eight years of subversion, Washington now signals cooperation.

In a recent telephone interview with ISN Security Watch, Professor Schiff argued that improved relations were likely to result in a policy of “benign engagement,” skirting ratification of the Rome Statute because of the domestic political costs associated with advancing this position.

Indicators support this assessment. The Fiscal Year 2009 omnibus appropriations bill no longer includes the Nethercutt amendment that limited US aid to states sympathetic to the ICC. In written testimony to the US Senate Committee on Foreign Relations, Secretary of State Hillary Clinton said, “We will end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice.”

The controversial nomination of Harold Koh, former dean of Yale Law School, to the US State Department’s senior legal advisory post also appears auspicious. Referring to the situation in Sudan on 28 April, Koh stated prudently before the US Senate Committee on Foreign Relations: “It’s a complicated situation in which international justice, I believe, could play an important role in bringing a better outcome in Sudan than we have now. On the other hand, I don’t think that we should reengage [the ICC] without fully protecting American interests.”

Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) told ISN Security Watch: “Harold Koh is a leading and highly regarded international law expert who clearly appreciates and understands the work of the ICC. We expect that his role in creating the new US policy on the ICC will be positive and constructive.”

Professor Schiff highlighted viable areas for US-ICC cooperation once the relationship warms. He told ISN Security Watch: “My assumption is that the US has all kinds of information, in all the areas of the ICC’s operations being generated by intelligence and other sources [...] and as far as we know publicly that information has not been shared with the ICC.”

The professor noted satellite images and cell phone intercepts in particular, arguing that such information, if material, could strengthen the prosecutor’s case against al-Bashir.

Discrete diplomacy

The US administration has reacted to Khartoum’s retaliation with diplomatic engagement. Obama tapped retired Air Force General J Scott Gration as his special envoy to Sudan and dispatched him in early April. Gration held talks with Sudanese officials and returned promising “friendlier” US-Sudanese relations, reasoning that this is the best avenue to a political settlement. According to an 8 April news report, he also gave Khartoum 30 days to resolve the expulsion issue. Gration went back to Sudan on 6 May to assess Khartoum’s commitment.

US Senator John Kerry (MA-D) also traveled to Sudan in April. Upon returning to Washington, Senator Kerry gave an interview with National Public Radio (NPR) and said that a deal had been brokered with the Sudanese to readmit some of the aid agencies. He also published an editorial in the Boston Harold entitled “Diplomacy has chance in Sudan.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies (this may entail simply repainting the doors of agency vehicles), but concerns linger that all services may not be restored. UN humanitarian chief John Holmes welcomed the move.

Attempting a strategy of discreet diplomatic engagement first is shrewd – all parties save face and are therefore more likely to sign up to a deal. However, the present government in Khartoum is notorious for stonewalling and may renege on promises of action.

Action entails first and foremost securing the readmission of the expelled humanitarian aid agencies. It further calls for guaranteeing Khartoum’s adherence to the Comprehensive Peace Agreement (CPA) that ended the 20-year North-South civil war; advancing peace talks on Darfur, for example by way of the ongoing Qatari forum; and securing al-Bashir’s cooperation with the ICC arrest warrant.

A contingency plan

If Khartoum elects to stonewall, Obama should consider employing his normative leverage. It is Obama’s most valuable asset and it could make a difference.

The tide may even be turning in the Islamic world. In a recent televised Doha Debate, a Muslim audience voted 55 to 45 percent in favor of sending al-Bashir to The Hague.

Obama could stigmatize al-Bashir. He could convey the message that doing business with the present government in Khartoum is reprehensible. Obama could also pressure the AL and the AU to renounce their support for al-Bashir, and encourage them to follow the South African and Botswanan examples.

Normative politics may also be a sagacious way to encourage China – Khartoum’s protector-in-chief at the UN Security Council – to temper its defense. Beijing cares about image politics. Normative pressures likely convinced China to abstain on UN Security Council Resolution 1593, which referred the situation in Darfur to the Prosecutor of the ICC in the first place. Obama, however, should avoid targeting Beijing directly. Such an approach is fraught with pitfalls; indirect pressure is preferable.

Time is ticking. Rations and medical supplies are running low. If Khartoum stonewalls, Obama should consider speaking up.

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