Responses to Prime Minister of Canada v. Omar Khadr

By: Law is Cool · January 29, 2010 · Filed Under Constitutional Law, International Law · 3 Comments 

The anticipated ruling by the SCC in Prime Minister of Canada v. Omar Khadr was released today, and already there is criticism of the decision that ruled that although Khadr’s s. 7 rights were violated, the court could not order the Prime Minister to seek his return.

One of Khadr’s lawyers, Nathan Whitling, said,

He has never had a whole lot of hope in terms of the Canadian government, in any event.

One of Khadr’s other counsel, Dennis Edney, stated,

I will say that the court has the belief that … the Canadian government has a moral conscience and will do the right thing.  I will tell him, ‘And that’s what we have to pray and hope.’

Alex Neve of Amnesty International, an intervenor in the case, stated,

It is not open to the Canadian government to just yawn and not take that seriously now. There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here.

In a decision with so much responsibility shifted to the political arena, it’s no surprise that politicians are weighing in as well.  Michael Ignatieff, leader of the opposition, said of the government,

The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated.

But some of the strongest critiques have come from academia, specifically the The David Asper Centre for Constitutional Rights at the University of Toronto.

In a press release sent to this site Diana Juricevic, Director of the International Human Rights Program at UofT Faculty of Law, stated,

We are very disappointed with the decision.  Remedies have to be meaningful in order for Charter rights to be taken seriously. The Supreme Court of Canada has failed Khadr. They have left the decision on what the appropriate remedy is to the Canadian government, which breached Khadr’s fundamental human rights in the first place.

Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights, said,

One hopes that the strong pronouncement by the unanimous Court that Canada has violated Omar Khadr’s rights and that the impact of that violation continues unless the government acts, will carry sufficient weight with the Prime Minister to persuade him to do the morally and legally right thing– seek Omar’s repatriation.

And finally, Professor Audrey Macklin, who acted as co-counsel in the case, expressed her frustrations,

The Supreme Court of Canada has spoken clearly, definitively and unanimously on the past and ongoing present violation of Omar Khadr’s rights by the Canadian government.  It has pointed to a request for repatriation as an appropriate remedy for the violation of those rights.  It now falls to the Prime Minister to do what the Supreme Court of Canada encourages but does not force him to do.  If the word of the Supreme Court of Canada that the government has violated Khadr’s Charter rights and should seek repatriation is not enough to motivate this government to act, then I am not sure what is enough to motivate this government to do the right thing.

Ignatieff on Discrimination, Social Media

By: Omar Ha-Redeye · January 13, 2010 · Filed Under Civil Rights, Constitutional Law, Politics · 1 Comment 

Michael Ignatieff, Leader of the Opposition, spoke to students at the University of Toronto – Mississauga today.

He addressed recent comments about airport security and the use of profiling, as well as discrimination generally in Canada:

He also made some interesting comments on the use of social media in politics:

Pay Equity: Did the Ignatieff Liberals Vote Against “a basic human right”?

By: Devin Johnston · December 10, 2009 · Filed Under Labour & Employment Law, Politics · 4 Comments 

Yesterday, Michael Ignatieff stated that pay equity is “a basic human right” and blasted the Conservatives who “[...] very clearly used their 2009 budget to impose their ideological opposition to pay equity for Canadian women.” I have to agree with Ignatieff on both counts.

Last year, I wrote a research paper for my Poverty Law class at Robson Hall (“Canadian Pay Equity Regimes in Context: Evaluating the effectiveness of pay equity dispute resolution mechanisms and remedies”) in which I compared the pay equity regimes of every jurisdiction in Canada. In particular, I was interested in access to effective remedies for women being paid less than men for work of equal value. In general, pay equity legislation only protects public sector workers, not workers in the private sector (although Ontario and Quebec also extend pay equity protection to some private sector employees). Most provinces and the federal government employ a legislative regime in which women may file a pay equity complaint either through a human rights commission or a dedicated pay equity commission.

The only exceptions to this type of legislative framework are the three western provinces: British Columbia, Alberta, and Saskatchewan. Saskatchewan and British Columbia have both adopted equity frameworks – essentially government policies that require public sector employers to implement some form of pay equity through the collective bargaining process. Alberta is the only jurisdiction in Canada that has no pay equity protections whatsoever. Alberta, like British Columbia, does require that workers receive the same pay for “the same or substantially similar work” (the wording of the legislation in British Columbia is “similar or substantially similar work”). However, this does not constitute pay equity, as such. Pay equity requires equal pay for work of equal value, even if the specific job classes are substantially different. In other words, pay equity looks at the value of the work being performed, not the similarity of job descriptions.

The budgetary measure to which Ignatieff is referring in his statement is a provision of Federal Budget 2009, which promises to eliminate the role of the Canadian Human Rights Commission and Canadian Human Rights Tribunal in the federal pay equity regime. Instead, the government promises to integrate pay equity more closely with the collective bargaining process in order to “ensure that the employer and bargaining agents are jointly responsible and accountable for negotiating salaries that are fair and equitable to all employees.” Ostensibly, the government’s rationale is that the current system is “a lengthy, costly and adversarial process”; however, as Ignatieff indicated in his statement, there is reason to believe that the Conservatives’ real motivation is an ideological opposition to pay equity as such.

It is first of all worth pointing out that the government’s characterization of the current complaint-based regime is not altogether inaccurate. In fact, many of the early pay equity cases involving large public sector employers took years or even decades to resolve (see e.g. Bell Canada v. C.E.P., [1998] F.C.J. No. 1609 (Fed. C.A.), rev’g (1998), 143 F.T.R. 81 (Fed. Ct. TD), leave to appeal to S.C.C. refused, 27063 (July 8, 1999)). However, it would be wrong to conclude that a complaint-based mechanism for pay equity can’t work in practice, as I argued in my paper:

One of the lessons thus far has been that many of the delays in the current regimes relate to difficulty in understanding and implementing the complex technical requirements of job comparison. This issue can and should be addressed in a number of different ways. First, the highly technical and specialized nature of pay equity befits a specialized administrative apparatus including a binding tribunal that is institutionally separate from other human rights and labour bodies. The Pay Equity Office, Commission, and Tribunal model championed in Ontario and Québec is promising in that it recognizes and affirms the sui generis nature of pay equity within the corpus of human rights and labour laws. Decision makers within that apparatus will therefore be better equipped to apply the technical requirements of pay equity in a more expedient manner. The second (and related) point is that pay equity commissions should be sufficiently staffed and resourced so as to better assist non-unionized workers in bringing a complaint against their employer.

In any event, even if we were to conclude that a complaint-based model in unworkable, the collective bargaining alternative is even worse. Again, quoting from my paper:

The most glaring gap in pay equity law is the jurisdictional gap. While most jurisdictions in this country have implemented some form of pay equity legislation, scores of Canadian women enjoy no pay equity protection at law. This includes those provinces in which internal government policy affords only remote administrative law challenges to women in segregated jobs. Female workers in Alberta have no legal recourse to obtain a remedy for violations of their human rights in respect of equal pay for work of equal value.

The complete lack of legal protection for workers in these jurisdictions does not sit well with the characterization of pay equity as a human right. Indeed, the complete omission of any protection for pay equity in Alberta undermines the universality of human rights. Yet even among jurisdictions that have enacted legally-enforceable pay equity laws, the scope of the legislation has generally been limited to the public sector. Ontario and Québec stand alone in providing any pay equity protection to women in the private sector. Again, this limitation in scope to is a curious departure from the characterization of equal pay for work of equal value as a human right rather than as a policy decision.

The ultimate shortcoming of current pay equity regimes is not the principle of equal pay for work of equal value, but the lack of access to effective and timely remedies. While the complaint-based tribunal system suffers from many glaring flaws, the relegation of pay equity away from tribunals and into the collective bargaining process represents a major retrenchment of women’s legal right to a pay equity remedy. In this sense, I would argue that Ignatieff’s position against the measures outlined in Budget 2009 is the correct one. I would go even further, though, by establishing a dedicated pay equity commission and extending the legislation to cover federally-regulated private sector workers.

My one and only criticism of Ignatieff here is that the Liberals voted in favour of Budget 2009! Clearly, voting in favour of a federal budget does not imply endorsement or consent to each and every line of the budget. For example, the NDP‘s support of a ways and means motion in September does not imply that party’s support for every line of the motion, so much as their desire for trade-offs in respect of employment insurance. For every vote in the House of Commons, politicians must engage in a cost-benefit analysis to determine whether the good parts of a bill outweigh the bad parts. A great deal of horse trading goes on between all of the political parties, and this is not necessarily a bad thing.

However, a major point of contrast between the NDP and the Liberals is that the NDP has consistently maintained the position that human rights are non-negotiable. That is, while the New Democrats will make policy concessions within the legitimate set of options available to government, they will not endorse any bill that undermines fundamental human rights. This explains, for example, the difference between how the New Democrats and Liberals have voted on same-sex marriage legislation in the past (the New Democrats voted unanimously for same-sex marriage, save for one MP who was ousted from the party in consequence; several Liberal MPs voted against same-sex marriage).

To the extent that equal pay for work of equal value is a human right (and Michael Ignatieff seems to think that it is), doesn’t it follow that the Liberals voted in favour of against, in Ignatieff’s words, “a basic human right”? If so, what does this say about the Liberals’ attitude in respect of the universality of human rights? It seems to me that the undermining basic human rights appears to be a deal-breaker for New Democrats, whereas the Liberals are willing to vote in against human rights where it suits their purposes.

On the other hand, maybe I’m just grumpy from studying too much for my exams. In any event, Ignatieff’s change of heart on the federal pay equity regime is a welcome change.

Are we Legally Required to Have an Election on October 19?

By: Devin Johnston · October 1, 2009 · Filed Under Politics · 2 Comments 

One of Stephen Harper’s first acts as Prime Minister was to enact Bill C-16, An Act to Amend the Canada Elections Act, which purported to establish the principle of fixed election dates in federal law. As it was sold to the public (and particularly to Conservatives of Reform-Alliance heritage), the law was supposed to curtail the power of the Prime Minister to unilaterally trigger an election at a time politically convenient to governing party. Harper would go on to betray his supporters by unilaterally triggering an election at a time politically convenient to the governing party. Recently, the Federal Court of Canada threw out a challenge to the legality of that decision which had been filed by Democracy Watch.

Bill C-16 essentially contains three parts. The first part says that we will have elections every 4 years on the third Monday of October. The second says that there will be federal election on October 19, 2009. The third part says that nothing in the first two parts affects the power of the Governor General to call an election. The specific wording of these provisions appears below:

56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.

[Emphasis added.]

In the Federal Court’s decision, Justice Michel Shore emphasized that s. 56.1(1) essentially overrides the other provisions insofar as the Governor General is not prevented from calling an early election on the advice of the Prime Minister. However, the ruling in that case is limited in scope to the calling of an early election and does not specifically deal with the refusal of the Governor General to call an election on 19 October 2009, as mandated in the Elections Act.

In their apparent zeal to bring down the Harper government and trigger a federal election, it might be reasonable for the Liberal Party to raise the issue of the legal effect of s. 56.1(2) of the Elections Act, either privately with the Governor General or in the federal court system. In all likelihood a legal challenge would fail, given that s. 56.1(1) seems to undercut all of s. 56.1(2). However, raising this challenge in a public way might have strategic political benefits for the Liberals, regardless of the outcome.

If successful, the Liberals would get the federal election for which they have so much enthusiasm. If unsuccessful, the Liberals would have concrete proof of something that most legal scholars and political observers have long suspected: that Stephen Harper’s fixed election date law is a complete sham that is of no legal force whatsoever. That might give the Liberals an opportunity to regain a much-needed foothold in Western Canada, where Harper’s popularity is largely predicated on his Reform-Alliance credentials. The West, after all, wants in (or so I have read).

Besides, it would be a nice change of pace for the Liberals to take the Conservatives to court for once.

STAND Down on Darfur, You’re Making it Worse

By: Omar Ha-Redeye · June 1, 2009 · Filed Under Civil Rights, Constitutional Law, Criminal Law, Immigration Law, International Law, Law Career, Legal Reform · Comments Off 

Liu Guijin, China’s special envoy to Darfur, is currently in Doha meeting with representatives from Britain, France, Russia, United States and the European Union in a 5-day conference on how to deal with the situation in western Sudan.

U.N. backed negotiations between the rebels and the government are also continuing in Doha, and the rebels have released government prisoners in a gesture of good faith.  Meanwhile, the government is making advances in Darfur, capturing several towns.

But the key to these recent gains are that the main rebel group, the Justice and Equality Movement (JEM), indicated that they withdrew to avoid further civilian casualties.

It’s the civilian casualties that have created so much concern from the international community, and estimates range from under 9,000 from Sudanese government sources, to 400,000 by some NGOs.

The discrepancy is explained by Sudan as exaggerations by the media and some western NGOs, a stance that has been given greater validity by other more neutral organizations.  The vast majority of people dying in Darfur are from the humanitarian situation, not directly from the conflict.  Thierry Durand, director of operations for Doctors Without Borders, said,

The magnitude of violence in Darfur has been huge, but it’s not genocide.  The situation on the ground has not been an emergency since 2004. The real problem is the dependency in the camps. But the whole thing has become over-politicized.

Canada has it’s own NGO lobby on the Darfur issue, one of the largest in the world.  STAND Canadastarted right here at my University of Western Ontario in 2005, after things had considerably improved in Darfur, by students with surprisingly little background in African history and conflicts, or humanitarian and civil rights issues.  They claim to be the “leading organization in Canada for youth led anti-genocide advocacy and activism.”

And according to at least some, activists like STAND and other like-minded western NGOs with inadequate background are making the situation exponentially worse.

A Race to a Politicized Conflict
Emily Wax highlighted some of the problems with well-intentioned but misled activists in a 2006 Washington Post article, one of the most poignant pieces explaining the misconceptions about the Darfur conflict:

  1. Nearly everyone is Muslim
  2. Everyone is black
  3. It’s all about politics
  4. This conflict is international
  5. The “genocide” label made it worse

Some activists have unfortunately used the linguistic differences between the Khartoum government and the Fur people as a slur against Baggara (pastoralist) Arabs (from which the Janjaweed come from) in the former murdering black Africans, out of some supposed racial-based animosity between the two, leading to these charges of genocide that would demand Western intervention (presumably militarily).

The reality is quite different.

Abdalla Adam Khater, a resident of Darfur who lost 100 extended family members in 2003, said,

This isn’t like the Nazis or Bosnia or Rwanda. This isn’t about hatred. It’s more about power, money and land.

The Darfur region was one of the earliest in Sub-Saharan African to be introduced to Islam, from the Zaghawa diaspora of the descendants of Uqba ibn Nafi in the 7th c. CE, and more formally through theTunjur people in the 14th c.

The Nile was ruled by the Christian Nobotia and Makuria kingdoms, until they gradually adopted the Arabic language and the Muslim religion through trade during the 12-15th c.  When the Sudan had theiranti-colonial Islamic Mahdist revolt against the British during the 19th c., it was largely based out of Darfur, and not the Nile, by uniting both the Baggara and the Fur.

This complex history still plays itself out in the modern conflict.

The Tunjur still inhabit Darfur and speak the Arabic language (and are thus “Arab”), and are just as victimized as others in Darfur despite the linguistic affinities with the Baggara and others.  The Justice for Equality Movement (JEM), one of the main rebel groups in Darfur, is Islamic fundamentalist in orientation.

The political origins of the conflict can be traced as far back as 1999, when a man named Hasan Al-Turabi, whose father was a Sudanese judge and legal expert, found himself in a confrontation with Sudanese President Omar Al-Bashir.

Turabi himself studied law, earning a PhD from Sorbonne in Paris, and introduced sweeping reforms that included more rights for women, greater political participation, and most importantly, a coalition that sought to include as many of Africa’s largest country’s 597 tribes and over 400 different languages and dialects as possible.

One of the problems was that the Sudanese South felt alienated by the largely Muslim-dominated government, which led to a civil war for over 20 years. Although the South is largely animist, western groups and NGOs attempted to portray it as a Muslim-Christian clash (only about 5% of Sudan’s population follow these forms of Christianity), and proselytizing groups did arm (and convert) people in the South.

The other problem in this interim period was Turabi’s open immigration policy, an anomaly in the Middle East. He saw a vision for Sudan as a refuge for all those facing political persecution, a political openess that has never been seen anywhere in the region, and will probably never be seen any time soon.

This open approach to political rights did have its disadvantages, as individuals like Osama bin Ladin also found their way to the Sudan.  But Sudan was far from a “haven” for terrorists, and after some Egyptian nationalists participated in a failed assassination of their President they were expelled from the country.

The 9/11 Commission Report reviewed the negotiations and tensions that arose between Sudan and other countries during this time,

In late 1995, when Bin Ladin was still in Sudan, the State Department and the CIA learned that Sudanese officials were discussing with the Saudi government the possibility of expelling Bin Ladin.  U.S. Ambassador Timothy Carney encouraged the Sudanese to pursue this course.The Saudis, however, did not want Bin Ladin, giving as their reason their revocation of his citizenship.

But these policy tensions led to cracks internally in the Sudanese government when in 1999 Turabi proposed and amendment that would further democratize Sudan, but would reduce the power of Omar Al-Bashir from President to Prime Minister.

Bashir retaliated by placing Turabi on house arrest and disbanding his coalition, which included significant representation from Darfur.  Turabi’s followers in Darfur, frustrated by their lack of political participation and representation, picked up arms and helped found JEM, starting yet another civil war.

Bashir’s government, still compelled to fill barracks in the South to enforce a shaky truce, resorted to desperate measures by enlisting the support of pro-government militias from among the Arabic-speaking Baggara.  These untrained non-conscript civilian forces, backed sporadically by a thinly-spread military, did engage in the killing and raping of civilians, which led to accusations of war crimes and genocide.

The Most Aggravated Crime Against Humanity

On Sept. 9, 2004, U.S. Secretary of State Colin Powell stood before the Senate Foreign Relations Committee and said that a genocide was occurring in Sudan, specifically invoking Article VIII of the 1948 Genocide Convention, which essentially would give rise to an armed intervention in Sudan (the US is no longer a signatory to the ICC),

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.

Just a year and a half earlier, Powell presented a case for invasion to the United Nations that Iraq unequivocally had weapons of mass destruction that it was hiding from the world.

Unlike his statements in Iraq, Powell’s position on Darfur has not received as much scrutiny.  Perhaps the most controversial and contentious position by groups like STAND are their accusations of genocide in the Sudan, one that does not include the very complex political background behind the situation in Darfur.

The Darfur Commission decided in 2005 after a thorough inquiry that there was insufficient evidence for genocide in Darfur because there was no state plan or policy to kill or target an ethnic, national, racial or religious group.  What NGOs like stand fail to recognize is that all of these groupings can be found on both sides of the conflict.

Charges of genocide require dolus specialis, or a special intent, according to Article 6 of the Rome Statute.  And even if some Janjaweed could be identified as perceiving ethnic differences between the two, there was no proof of motive on behalf of the government that would give rise to the mens rea requirement for what is reserved as the “most aggravated crime against humanity.”

What the International Criminal Court (ICC) was able to conclude was that the Darfur situation did consist of war crimes and crimes against humanity.  A specific warrant was issued for Bashir on,

• five counts of crimes against humanity: murder – Article 7(1)(a);
extermination – Article 7(1)(b); forcible transfer – Article 7(1)(d); torture -
Article 7(1)(f); and rape – Article 7(1)(g);

• two counts of war crimes: intentionally directing attacks against a
civilian population as such or against individual civilians not taking part in
hostilities -Article 8(2)(e)(i); and pillaging – Article 8(2)(e)(v).

While government complicity in Janjaweed activity, and the extent of the activities meeting these definitions are not under dispute, the political prudence of using the ICC to resolve this situation is.

Immediately after the warrant was issued, Bashir expelled 10 of the major humanitarian organizations in the region.  But Bashir had justifiable paranoia about some of these NGOs, as just weeks earlier he had expelled a Texan-based charity, Thirst No More (TNM), run by an Iraqi war veteran.  They describe their mission:

With a history of proven success in distributing bottled water with the “Pure” message of salvation along with other unique products – we’ve become your resource for evangelism and missions. Thirst No MoreTM is a faith based ministry, dedicated to honoring and glorifying Christ.

TNM was supposed to be drilling wells in Darfur.  Not a single well was built, but plenty of Bibles were discovered in violation of Sudan’s 2006 Organization of Humanitarian and Voluntary Work Act.

In addition to the prosyletizing, there was the arming of JEM and Darfur rebels by foreign powers, some pointing to France via Chad, the same country that armed the Hutu in Rwanda.  It’s in this backdrop of that key nations in the region have resisted the ICC charge,

The African Union (AU), the Arab League, the Organisation of the Islamic Conference, and an influential UN bloc of developing nations known as the Group of 77 and China have all backed Sudan’s calls for the ICC prosecution to be dropped, with some officials arguing that it smacks of “white man’s justice”.

They say an attempt to arrest Bashir could destabilise Sudan and endanger international aid and peacekeeping missions…

Sudanese officials say they cannot be held responsible if the UN or foreign organisations become the focus of “public outrage” over an indictment.

Justice Radhabinod Pal of India issued similar anti-colonialist misgivings in his dissent before theInternational Military Tribunal for the Far East, which was banned from publication until 1952.

“Those bearing the greatest responsibility” (a term coined during the Special Court for Sierra Leone), or founding the conflicts in the first place, are unlikely to be held accountable, despite this statement by the Prosecutor in a 2003 report, Paper on some policy issues before the Office of the Prosecutor,

One important area of investigation will involve financial links with crimes. The investigation of financial transactions, for example for the purchase of arms used in murder, may well provide evidence proving the commission of atrocities…
Such prosecutions will be a key deterrent to the commission of future crimes, if they can curb the source of funding.

So although victims of terrorism may be able to sue terrorists according to a new Bill the Conservatives intend to introduce this week, the victims of state terror or atrocities committed by states using weapons sold to them by Western entities are unlikely to see similar relief.

Canada’s Role in the Conflict

Of course well-intentioned people want to make a difference in the world, and do genuinely care about people dying and suffering around the world.  But the best way to prevent these conflicts from happening may be in an entirely unexpected way, through combating climate change.

The socio-economic background to the Darfur crisis that is also often ignored is the displacement of the Baggara from their pastoralist lands into the agricultural holdings of Darfur due to desertification.  The Sahara dessert is expanding, primarily due to carbon emissions from the United States and Canada.

The Darfur crisis is just one of many conflicts in the 21st c. that will erupt over food and water due to climate change that will primarily affect the developing world, who are the most vulnerable to these changes.  Activists tend to be selective about the causes they take up.

Jan Egeland, head of UN Office for the Coordination of Humanitarian Affairs, has proclaimed that the situations in Congo and Uganda have each exceeded Darfur as humanitarian crises, but the world has not paid it equal attention, even though he noted there is even more of an opportunity to save lives in these other situations.  Not even the “leading organization in Canada for youth led anti-genocide advocacy and activism” took note.

Canada also played a much more direct role in creating the backdrop to the conflict when it pulled outTalisman Energy from the Sudan, due to pressure from church groups interested in destabilizing the government further out of their interests to strengthen the (potentially Christian) rebels.  Instead, Canada could have used its role and influence over the Sudanese government to observe human rights standards.

This weekend a Canadian envoy could be heading to Doha, with the whole world looking to us for a peaceful solution.

Criticisms by STAND activists about normalized relations with the Sudanese government are easily countered by pointing out that during the Darfur situation Sudan obtained 87 per cent of its arms from Russia, not the Chinese who replaced Canadian commercial interests in the country.

The shift in attitude is best encompassed by the contrast between policies espoused on Darfur by George W. Bush and Bill Clinton at a talk in Toronto on May 29 that I attended with Garry Wise.

Bush disclosed that his reasons for not sending an armed intervention to Darfur was that NGOs more intimately aware of the region and its issues strongly urged him not to invade, given the backdrop of Afghanistan and Iraq.

In an apt mid-20th c. African rendition of Macbeth by Des McAnuff I saw at the Stratford Festivalyesterday, Lady Macbeth exclaims this sentiment quite well in Act V Scene I,

Here’s the smell of the blood still; all the perfumes [or oil] of Arabia will not sweeten this little hand. Oh, oh, oh!

Clinton, on the other hand, more acutely captured the notion that although African Union peacekeepers were limited in their capabilities, only countries understanding the local faith and cultures in the conflict should even attempt to mediate it.

Bush still insisted that his (faith-based) NGOs were the solution to all the problems in the world.

The Post-Bush Doctrine

The notion of sovereignty often appears far more disposable when dealing specifically with developing nations, especially in recent years.   Yasuki Nesiah highlights this problem in From Berlin to Bonn to Baghdad: A Space for Infinite Justice,

Ian Williams has warned that “we should not let” George W. Bush’s “misappropriation of humanitarian intervention alienate the concept from its natural owners, the left.”[5]Lamenting the Bush-Blair duet regarding the humanitarian goals that guided their policies in the second Gulf War, proponents of humanitarian internationalism are anxiously seeking to formulate universal principles to distinguish illegitimate from legitimate intervention, conquest from protection, and militarism from humanitarianism.

…Michael Ignatieff anguishes that “almost everyone who tries . . . has a bad conscience; no one is quite sure whether our engagement makes things better or worse.”[26]

A more effective approach to dealing with Darfur is encapsulated with a shift from “Save Darfur” to “Empower Darfur.”  Richard Haass, currently with the Council on Foreign Relations, said in Sovereignty: Existing Rights, Evolving Responsibilities,

Sovereignty has been a source of stability for more than two centuries. It has fostered world order by establishing legal protections against external intervention and by offering a diplomatic foundation for the negotiation of international treaties, the formation of international organizations, and the development of international law. It has also provided a stable framework within which representative government and market economies could emerge in many nations. At the beginning of the twenty-first century,
sovereignty remains an essential foundation for peace, democracy, and prosperity.

At the same time, sovereignty is being challenged from both within and without. Weak states struggle to exercise legitimate authority within their territories. Globalization makes it harder for all nations to control their frontiers. Governments trade freedom of action for the benefits of multilateral cooperation. And outlaw regimes jeopardize their sovereign status by pursuing reckless policies fraught with danger for their citizens and the international community. We need to adjust our thinking and our actions to these new realities.

The only two other previous cases referred to the ICC before Sudan was with Congo and Uganda, both referred by a non-signatory state for an internal conflict, a situation not envisioned by the drafters of the Rome Statute.  These states were struggling with maintaining the civil order, and sought the help of the international community.

Justice Louis Moreno-Ocampo, former ICC Prosecutor for the ICC signaled the role of the court in creating peace in Uganda, a conflict peripherally related to that of Sudan.  Others criticized that the ICC was ignoring abuses by the Ugandan government.

The arrest warrants were an important part of the reason why the Lord’s Resistance Army (LRA) came to the negotiating table with the government.  In the Fifth Session of the Assembly of State Parties, Moreno-Ocampo said,

This case shows how arrest warrants issued by the Court can contribute to the prevention of atrocious crimes. The Court’s intervention has galvanized the activities of the states concerned. Uganda and the DRC, parties to the Rome Statute and legally bound to execute the arrest warrants, have expressed their willingness to do so. The Sudan, a non‐State Party, has voluntarily agreed to enforce the warrants. Thanks to the unity of purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its headquarters to the DRC border.

As a consequence, crimes allegedly committed by the LRA in Northern Uganda have drastically decreased. People are leaving the camps for displaced persons and the night commuter shelters which protected tens of thousands of children are now in the process of closing. The loss of their safe haven led the LRA commanders to engage in negotiations,resulting in a cessation of hostilities agreement in August 2006.

But when U.N. peacekeepers in February 2006 attempted to enforce the warrants and arrest LRA leaders in the Congo they failed, and several were killed.

And when Uganda’s security minister, Amama Mbabazi, asked for the ICC to withdraw the charges because they were in the way to reaching a peace deal, the international community retaliated.

Justice Richard Goldstone, former chief prosecutor for the Bosnia and Rwanda, said,

It would be fatally damaging to the credibility of the international court if [Ugandan President] Museveni was allowed to get away with granting amnesty. I just don’t accept that Museveni has any right to use the international criminal court like this.

If you have a system of international justice you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult that may be the price that has to be paid. The international community must keep a firm line and say are we going to have a better world because of the international court or not.

The LRA currently indicate that no peace is possible until the ICC warrants are dropped.

Similar critiques that war crimes by rebels in Darfur are not equally investigated are also being raised.

Similar concerns of peace being stonewalled are being raised now with the talks between JEM and Bashir.  Although Turabi has called for Bashir to turn himself in, he has stated he will never surrender.

Discharging the Secrets of Infected Minds

Resolving this dilemma might be possible by better clarifying when a country’s sovereignty can be infringed upon.  The relationship between human rights and state immunity was summarized by Lee M. Caplan in The American Journal of International Law:

  1. state immunity arises not out of the fundamental right of statehood but, rather out of the concession of a forum state’s right of adjudicatory jurisdiction; and
  2. foreign states are not entitled to immunity under customary international law as to most, if not all, activity that constitutes human rights offenses.

Sudan is not a signatory to the Rome Statute, but strangely was referred to the ICC by states that are not signatories either, or states directly involved in arming the respective parties.  Despite the absence of any concession for adjudicatory jurisdiction, the ICC may still have a role, given the nature of the alleged crimes.

International lawyer Heny Schermers said,

Under international law we are most often confronted with the idea that sovereignty of a State means that the State has unlimited power and is subjected to only those rules of international law which it has expressly accepted.  Neither other states nor the United Nations have any right to intervene in matters which are essentially within the domestic jurisdiction of a State.  This aspect of sovereignty has been seriously weakened during the second half of the twentieth century.

…the world community takes over sovereignty of territories where national governments completely fail and that therefore national sovereignty has disappeared in those territories.  The world community by now has sufficient means to step in with the help of existing States and has therefore the obligation to rule those territories where the governments fail.

But where the international community, or even those states attempting to intervene, has expressly contributed to the failing of a government, such intervention hardly seems warranted.

Even worse, it could easily backfire.

One of the unintended but easily plausible outcome of this situation is an independent Darfur could be an impoverished and unstable state that really is a haven for terrorists, both anti-American and rabidly Israeli, despite support the latter has extended to rebel groups.

Calls to further weaken Sudan with no-fly zones, sanctions, or even armed troops should be firmly rejected as a tactic that has been tried and failed elsewhere, and at huge expense of lives.

To move beyond the failed Bush doctrine countries would be held accountable and encouraged to observe human rights using the principle of complementarity.  If a country genuinely tries war crimes internally, there is no admissibility of a situation to the ICC according to Article 17. Instead of undermining weak states, peacekeepers could be used in cooperation and coordination of the new realities of a changing world.

Sudan’s Deputy U.N. Ambassador Omar Bashir Manis appeared willing to cooperate with the international community during Security Council meeting 5459 on June 14, 2006,

…we should point out that the Sudanese Government responded positively to resolution 1593 (2005) and has begun the process of consulting with the Prosecutor and his assistants, including through visits by them to the Sudan. We believe that that communication and cooperation has had a number of positive results, some of which we would like to highlight.

The Prosecutor quickly came to an understanding of the situation. He was briefed on the history of the Sudanese judiciary, its independence and its capacity, along with related judicial organs, with regard to establishing the rule of law. The Prosecutor has understood the reasons for the deterioration of the situation in Darfur and the security vacuum which led to attacks on police stations and the ensuing events, including tribal confrontations and conflict among political factions and elements, which led to an escalation of the situation and the consequent widespread violations, of which everyone is aware.

Our police and prosecutors are prosecuting the perpetrators of those crimes. The Prosecutor learned about a great many cases that have been decided and about charges and allegations that have been followed up since a special prosecutor was appointed to look into those cases in Darfur. Special courts have been established and have handed down many criminal sentences, including execution and life imprisonment. The Prosecutor also had the opportunity to better understand how best to deal with security and tribal problems and disputes.

…There have been meetings with many officials from provinces in Darfur with a view to understanding the general situation and to seeking their views on how to prosecute the accused, and on how to establish the rule of law and mend the social fabric.

There is no doubt that a political settlement is the best possible solution and is the key to achieving stability, justice and peace in Darfur…

Mending the social fabric through efforts aimed at reconciliation, amnesty and the satisfactory resolution of problems among the various Darfur tribes is necessary and of fundamental importance if peace is to be established in Darfur. That is an effort that we hope will enjoy the support and encouragement of the African Union and the international community, including the Security Council, in keeping with paragraph 5 of resolution 1593 (2005).

The Government of the Sudan will continue its efforts to establish the rule of law and justice through the courts and other mechanisms set up in Darfur, to put an end to impunity and to hold accountable all those convicted of violations of human rights and international humanitarian law

We therefore believe that the current political, security and social conditions in Darfur call for the Security Council’s support for efforts towards an internal dialogue in Darfur with a view to achieving peaceful coexistence. That, in line with all that I have said, is the easiest way to establish the rule of law and lasting peace.
[emphasis added]

The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General on Jan. 25, 2004 agreed that the best way to resolve the Darfur situation would be the internal legal process,

568. The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged perpetrators. There may indeed be instances where a domestic system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction.

But due to the erosion of the rule of law due to civil wars, other nations that have deliberately sought to weaken the country, and impunity of the executive, the Report also noted that this was impossible in Sudan,

586. The Sudanese justice system is unable and unwilling to address the situation in Darfur.This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive particularly undermined the effectiveness of the judiciary.
[emphasis added]

A Sudanese solution would seek to restore political coalitions that kept the country together, and rebuild a Sudanese judicial system that would try offenders of war crimes.

This approach has been validated by the international human rights community.  In 2006 the Human Rights Council of the General Assembly stated,

…the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings,
[emphasis added]

Instead, we have been dealing with an approach to developing nations that would weaken and destabilize them even further.

Lady Macbeth’s physician speaks of the type of guilt that sullies the situations created by the Bush doctrine to this day,

Foul whisp’rings are abroad; unnatural deeds
Do breed unnatural troubles; infected minds
To their deaf pillows will discharge their secrets.

George Friedman, in his book The Next 100 Years: A Forecast for the 21st Century, discloses America’s “unnatural secret” to a primarily American audience: the “War on Terror” makes absolutely no strategic or military sense.  It’s impossible to win.

However he retorts that America does not have to win as long as it can keep predominantly Muslim countries fighting each other.  There are some NGOs, including those involved in Darfur, who take a strategic position not substantially different from this.

If the ICC is used to help strengthen countries to be willing and able to address humanitarian issues, encourage accountability for their actions, and enforce the rule of law through a domestic judiciary wherever possible, it will have much more buy-in and credibility from the developing world and unstable regions.

But if it is used to target failing states that have been habitually undermined and weakened, especially by directly aiding rebel groups within a country, it will be seen as nothing more than a tool of neo-colonialism as charged by Bashir and envisioned many years ago by Justice Pal.

Yet here’s a spot.


Cross-posted from Slaw