International Law

“The international community” is among the most commonly invoked and most frequently vilified phrases in world politics. As Tod Lindberg points out in a new CFR working paper, “Making Sense of the International Community”,  the expression has become a verbal tic of sorts for U.S., foreign, and international officials. Thus, when the stability of post-election Kenya in 2007-2008 was threatened by violence, “the international community” sprang into action. When the repressive Burmese junta kept pro-democracy leader Aung Sang Su Kyi in confinement, “the international community” united in condemnation. When Bashar al-Assad shelled the city of Homs in 2012, “the international community” groped for an appropriate response. And so on. For hard-bitten realists like CFR President Richard Haass, the phrase is simply silly—redolent of the soft sentimentality of utopian dreamers unable to see the world as it is: a Hobbesian state of nature, in which sovereign states compete mercilessly for power. For neoconservative ideologues, like Washington Post columnist Charles Krauthammer, it is woolly-minded gibberish, propagated by liberal naïfs who refuse to recognize that statecraft is a Manichean game that only those with  “moral clarity” can win. And yet the concept survives, indeed thrives, repeatedly invoked by U.S. and foreign policymakers to capture the ineffable solidarity that seems to bind at least some states, some of the time. The debate over whether “the international community” exists—and if so what it consists of—matters. If it does not exist, its loose invocation is distracting and potentially dangerous, blinding us to the real forces shaping state conduct. If it does exist, we need to clarify its meaning and boundaries more precisely, or risk undercutting the emergence of a more humane framework for world order. It takes considerable skill to shed meaningful light on such an elusive and much-maligned concept. Fortunately, Tod Lindberg of the Hoover Institution is up to the task. Although affiliated with a conservative think tank, he is not easily pigeonholed ideologically. He tends to take iconoclastic positions, like supporting U.S. membership in the International Criminal Court (ICC). He is also an elegant writer, having written for and served for years as editor of the recently shuttered Policy Review. Most importantly, Lindberg takes ideas—and the history of ideas—seriously. This leaves him well-placed to parse the evolving meaning and trace the practical impact of this influential concept. Lindberg’s core argument is that the phrase “the international community” signifies something real. To be sure, it is often used and abused for narrow, instrumental purposes. But at its core, it embodies a classically liberal vision of an international order based on the universal application of moral principles. It reflects the commitment of nations—or at least some major subset of nations—to “a commonly held sense of the good.” To summon “the international community” is to recognize that shared norms, and not simply material interests, can and do inform the conduct of states. Lindberg’s paper is a worthwhile read whatever your theoretical perspective, for he asks the right questions: Does an international community actually exist, and if so, who is eligible for membership? How sticky is the glue that binds its members, and is its expression to be found in existing international institutions, in accumulated international law, or evolving norms of international society? Finally, how coherent is this community, and who can legitimately speak in its name? What follows are just a few of Lindberg’s main insights, as this author sees them. International law underpins the “international community.” For many realists and conservative nationalists, international “law” is nothing of the kind. Lindberg begs to differ. As the late legal scholar Thomas Franck observed, international law exercises a “compliance pull.” Though it typically lacks the force of sanction characteristic of domestic law, most countries  obey it, most of the time. And when they do not—as in the NATO-led intervention in Kosovo taken without UNSC authorization—they offer normative justifications for their departure from the law. And the reason governments do so is that they value international law not only for its contributions to world order but for its embodiment of the community of nations. The “international community” is bound by certain shared norms. When one speaks of community, George Washington University professor Amitai Ezioni writes, we imply “a shared moral culture and bonds of affection.” The sense of community is inherently thinner at the global than the domestic level of course, given the diversity of national political and economic systems and values. Still, the notion of the international system as purely anarchic and populated by self-contained states (the “billiard-ball” image so beloved by neorealists) is woefully out of date. As British political theorist Hedley Bull observed decades ago, the world’s nations, for all their heterogeneity, constitute a kind of “society of states,” whose members share “a sense of common interests in the elementary goals of social life; rules prescribing behavior that sustains these goals; and institutions to make these rules effective.” The “international community” is not inherently Western. There is a strong temptation to depict the West, where the sovereign state system began, as the core of “the international community.” After all, shared values and transnational alliances, networks, and ties have so transformed politics among advanced market democracies that that war among them is today inconceivable. Lindberg rejects this position, after considering it. While the “Atlanticist community” may be “the most highly developed ‘transnational ethical community,’” he writes, “other transnational communities may gather and pursue common ends,” citing the Non-Aligneed Movement (NAM) and the Group of Seventy-Seven (G77) as examples. The main implication? Solidarity within “the international community” may often be thinner than among its sub-groups. The “international community" remains open in principle to all. Lindberg challenges those radical critics who consider the concept of an “international community” inherently exclusionary. Defining a “we” group, he insists, does not depend on a “they” group perpetually excluded from membership. All that is required to join the international community is to accept its fundamental norms and rules. This choice is of course most acute for today’s “rogue” (or in the current parlance “outlier”) states like Iran, North Korea, Syria, and Sudan, which violate fundamental principles and standards of behavior as they pursue of weapons of mass destruction or commit atrocities against civilians. Lindberg’s essay does not provide ready solutions to specific foreign policy problems. But he does conclude with “a practical guide” to help officials decide when it is (and is not) appropriate to invoke the “international community.”  His main counsel is to avoid using the term when international sentiment is deeply  divided on matters of fundamental principle. Employing the phrase more judiciously could avoid a host of problems. At present, he warns, “Our loose talk of international community comes at a price, in terms of sometimes inflated, sometimes diminished expectations about the ability of international politics to be brought into alignment with an evolving yet classically liberal moral order—whose political authority consists in its voluntary acceptance by growing numbers of people, even including governments.”

On December 19, International Criminal Court prosecutor Fatou Bensouda asked the judges to adjourn the trial date of Kenyan president Uhuru Kenyatta because one of the prosecution’s witnesses is now declining to testify and another has confessed to giving false evidence. She is asking for the adjournment to give her more time to seek other evidence before proceeding with the trial. She said: “Having carefully considered by evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial. I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.” Kenya’s President Kenyatta and Vice President William Ruto have been indicted in connection with the bloodshed surrounding the 2007 presidential elections. At that time, Kenyatta and Ruto were on opposite sides. Kenyatta was a leader of the Kikuyu ethnic group, while Ruto was a leader of the Kalenjin ethnic group. The two ethnic groups have long been bitter enemies. The origin of the enmity appears to be dispute over land in the Rift valley. However, political figures on both sides have previously fanned the enmity in pursuit of their own agendas. It looks like that might have happened in 2007. At least 1,200 people were killed, and the international community, led by then UN Secretary General Kofi Annan intervened. In 2013, however, Kenyatta and Ruto reconciled their personal differences and led a united ticket against Raila Odinga. Kikuyu and Kalenjin found themselves on the same side. They won in elections that most Kenyans decided were credible. That victory means that Kenya’s president and vice president are both under ICC indictment. Since the elections–and even before–ICC officials, including prosecutor Fatou Bensouda have complained of witness intimidation and general Kenyan non-cooperation. Kenya has sought Africa Union support against the ICC, and the Kenyan parliament has called for withdrawal from its jurisdiction. Under these circumstances, as the years go by, it is likely that it will be increasingly difficult for Bensouda to make her case against Kenyatta. However, Ruto’s case, generally regarded as the stronger of the two, started in September 2013, and is going forward. Should the ICC case against the Kikuyu Kenyatta go away, and should the Kalenjin Ruto be convicted, it is unclear whether that would re-ignite the ethnic conflict between the Kikuyu and the Kalenjin, up to now held in abeyance by the Kenyatta/Ruto alliance.

Many friends and observers of Africa, including myself, see shortcomings in governance as key to the slow rate of economic, social, and political development in some African countries. The converse is also true. Where governance is better, development can be rapid. The Mo Ibrahim Foundation has published its annual ranking of African states. The top five in descending order are Mauritius, Cape Verde, Botswana, Seychelles, South Africa, and Namibia while the bottom five, going from bad to worse, are Zimbabwe, the Central African Republic, Chad, Congo, and Somalia. For a second consecutive year, the Foundation has announced that there is no winner of the Ibrahim Prize for outstanding leadership by a chief of state. Established in 2006, the prize’s independent and highly distinguished judges have awarded the prize only three times, to the former chiefs of state of Botswana, Cape Verde, and Mozambique. They have also recognized the work of Nelson Mandela, out of office long before the prize was established, and Archbishop Desmond Tutu, both of South Africa. Subsequently, I will be blogging on the Ibrahim Index and the Ibrahim Prize. Here I cite them to support the point about the relationship between good governance and social and economic progress, and to point out that poor governance remains a significant challenge for Africa. Essential to good governance is accountability, and the International Criminal Court (ICC) promotes it. In an interview with Radio Netherlands, retired Archbishop Desmond Tutu, an icon of South Africa’s liberation movement, said, “The ICC has been a powerful force for justice, peace and accountability not just in Africa but around the world. Far from targeting Africa, it has served and protected Africa.” Kenyan president Uhuru Kenyatta and deputy president William Ruto have been indicted by the ICC for crimes against humanity in the aftermath of Kenya’s 2007 elections. Though they are cooperating with the court, they are seeking to avoid standing trial, either until their time in office ends, or forever. Accordingly, at a special summit of the African Union (AU), Kenyatta argued that the Western countries, especially the UK and the United States, had turned the court into a neocolonialist tool. He called for a mass walkout from the Treaty of Rome that established the court and which thirty four African countries have ratified. He argued that the ICC was contemptuous of the African Union, and the African Union accordingly resolved that the two should not appear before the ICC. London’s Daily Telegraph is reporting that “European diplomats” are seeking to have the UN Security Council direct the ICC to put the Kenyatta and Ruto trials on hold. A British Foreign and Commonwealth Office spokesman, however, says that there has been no change in the government’s support for the ICC. It remains to be seen whether African states will follow the AU resolution. Adherence to the Treaty of Rome is a matter for individual sovereign states. Kenya’s parliament has already called for Kenya to withdraw, and I believe there is a good chance this will happen. If so, it is difficult to see how the trials of Kenyatta and Ruto can proceed. Legally, their indictments still stand and their trials should go forward. It also remains to be seen whether the efforts by “European diplomats” to seek the trial’s postponement by the UN Security Council will be serious.

Significant African opinion appears hostile to the International Criminal Court at The Hague (ICC). In Kenya, President Uhuru Kenyatta and Deputy President William Ruto, both under ICC indictment for crimes committed during post-election violence in 2007-2009, included in their campaign rhetoric that the ICC was a tool of Western imperialism. This view is shared by many. Others argue that the ICC is somehow “unfair” because its current cases all involve Africa. In Kenya, the parliament has called for the withdrawal from the Treaty of Rome that established the ICC. The African Union has called for the Kenyatta and Ruto cases to be referred back to the Kenyan judicial system. A special African Union (AU) summit meeting is convening in Addis Ababa on October 11-12 to discuss the Union’s relationship with the ICC. Some hope that the AU member states will withdraw as a block from the Treaty of Rome, though few expect that will actually happen. Misunderstandings, even outright lies, about the ICC and the Kenyatta and Ruto cases in particular are underpinning much of this current anti-ICC sentiment in Kenya and elsewhere. Under those circumstances Human Rights Watch (HRW), a distinguished non-governmental organization based in the United States, has performed a service by publishing a short primer on October 7 entitled Perceptions and Realities–Kenya and the International Criminal Court. It sets out eight common perceptions about the Kenyatta and Ruto ICC prosecutions–and then demolishes them. Along the way it shows that the Kenyan judicial system does not have the capacity to prosecute Kenyatta and Ruto and that it has failed to hold perpetrators of electoral or political violence accountable throughout its post-colonial history. It also exposes a lack of substance to the Kenyan government’s cooperation with the ICC in the Kenyatta and Ruto cases–despite the two’s formal cooperation with The Hague court. The HRW primer is the first place to go when looking at the alleged legal arguments for delaying the trials, either by transferring them to Kenyan jurisdiction or through UN Security Council action. HRW also discusses the consequences for the future of Kenya’s failure to hold accountable perpetrators of human rights violations. Impunity in the past implies impunity in the future. Archbishop Desmond Tutu has also weighed in on the key role of the ICC in ensuring that perpetrators of violence are met with justice not impunity. In an op-ed published in the New York Times on October 10, Tutu states that “without this court, there would be no brake on the worst excesses of these criminals.” He also highlights the fact that while the ICC has so far prosecuted only African cases, the ICC could also “not be more African if it tried.” The United States is also a signatory of the Treaty of Rome, but it has never been ratified by the Senate. U.S. policy is, however, highly supportive of the International Criminal Court. In light of non-ratification, many African critics view U.S. support for the ICC as fundamentally hypocritical.

Moscow has seized the initiative in the increasingly dizzying diplomacy over Syria’s chemical weapons (CW). By picking up on Secretary of State John Kerry’s offhand remark—that Damascus might avoid a U.S. military strike by eliminating its CW stockpiles—Vladimir Putin has offered a lifeline to a beleaguered White House. Bereft of domestic and international support for a hard line against Bashar al Assad, Barack Obama must be sorely tempted to make this new initiative work. After all, by disarming Syria of chemical weapons, he can declare “victory” without dragging an exhausted American public into another Middle Eastern quagmire. But before making this leap, the President needs to take a hard look at the political as well as technical requirements for an effective inspection regime. Secretary Kerry and Russian Foreign Minister Sergei Lavrov are meeting in Geneva to hammer out the technical details of a potential UN inspection regime in Syria. The hurdles for such inspections are, frankly, immense, given the likelihood of Syrian duplicity and the fact that the country is in the midst of an all-out civil war. An inspection team must be created from scratch and it must be provided with the location of and access to all relevant installations, including military bases, weapons depots, and factories for the assembly of weapons and production of precursor chemicals. The team will need to secure these facilities from interference or seizure by the government or rebel groups, and it must have sufficient armed protection to guard itself from attack from either side. Under the most optimistic scenario, it will take a year—and more likely two or three—before Syria can be officially declared chemical weapons-free. The biggest obstacles to a strong inspections regime, however, are not technical but political. To avoid its negotiations with the Russians from descending into farce, the United States must insist on three fundamental preconditions: A Strong Security Council Resolution: The envisioned inspection regime must be backed by a UN Security Council Resolution under Chapter 7 of the UN Charter. Damascus must be legally bound to declare all of their CW holdings and facilities, and the resolution must authorize the use of military force in the event that the Syrian government does not comply with these obligations. Moscow’s current position—that inspections should be established pursuant to a nonbinding “presidential statement” by the UNSC—is unacceptable. If the Syrians are indeed serious about coming clean, they should have nothing to fear from a resolution authorizing force if they balk. Full Syrian entry into the Chemical Weapons Convention: Syria has recently submitted documents to begin the process of joining the CWC. This cannot simply be a rhetorical gesture. Immediate steps should be taken destroy weapons handed over to the international monitoring regime. Syria should also be compelled to immediately submit its declarations of chemical weapons rather than waiting thirty days (the normal procedure for a new CWC party). Syria must also accept, both now and in the future, the “challenge inspection” principle whereby any state that doubts the compliance of another can request that the Convention’s Director-General to send a team to the country “any time, anywhere” with “no right of refusal.” Complete access for UN inspectors: For credibility’s sake, the relevant UNSC resolution must also permit UN chemical weapons inspectors to enter any facility in Syria, without prior warning or justification. In other words, Assad must be prepared to surrender a core attribute of Syrian sovereignty, control over his territory, even as he fights to preserve his state against rebel forces. Anything less than complete freedom of movement for inspectors will guarantee an endless game of cat and mouse reminiscent of Saddam Hussein’s antics in the early 1990s. Although these preconditions will be hard pills for Moscow to swallow, the Russians are likely to accept them as the price for U.S. agreement to their initiative. Through skillful, if cynical, diplomacy, Putin has positioned himself as a global statesman and peacemaker and Russia as a still-major power, while simultaneously insisting that the United States act within the confines of international law rather than using force outside the auspices of the UN Security Council. But Putin’s triumph is contingent. It depends on persuading the Obama administration, after years of Russian obstructionism in New York, that the UNSC can deliver a meaningful, credible resolution on Syria. That resolution must meet the U.S. bottom line, promising the elimination of chemical weapons in Syria and consequences if the Assad regime fails to do so. The Obama administration has made several embarrassing pirouettes over the past three weeks. But it is unlikely to accept the humiliation of a meaningless inspection regime over a military strike against Syria—however unpopular. As for Bashar al-Assad, no doubt he will find these preconditions even more bitter. But his paramount concern is survival. A rigorous inspection regime will permit him to fight another day, albeit with conventional means.

Deputy President William Ruto’s International Criminal Court (ICC) trial for crimes against humanity associated with the 2007 elections opens September 10 in The Hague. President Kenyatta’s trial is scheduled to open November 12. On September 5 the Kenyan National Assembly passed a motion calling for Kenya to withdraw from the ICC; the passage of the necessary legislation is expected by the end of the month. As the date of the start of the trial approaches, two more witness have withdrawn from the Ruto case, citing “mental anguish” and “pressure from the family.” Fatou Bensouda, the ICC prosecutor, has complained on numerous occasions of witness intimidation and of the Kenyan authorities’ failure to cooperate in their protection. With respect to President Kenyatta, in the Kenyan press there is a lively debate on whether the immunity conferred by the Kenyan constitution on a sitting president trumps the ICC. The general sentiment is that it does, and that Kenyatta’s trial cannot go forward so long as he is in office. The debate also features a rehash of familiar arguments about the alleged bias of the ICC against African leaders despite the fact that the prosecutor, Fatou Bensouda is a Gambian who received her university and legal training in Nigeria. (She also studied maritime law in Malta.) There are eighteen ICC judges. Five are from Western Europe, five from Africa, three from Latin America, three from Asia and two from Eastern Europe. Kenya’s withdrawal from the ICC appears inevitable. With respect to the Ruto and Kenyatta trials, it changes nothing–and it changes everything. As human rights activists and legal experts point out, Kenyan withdrawal can take place only after a year. Further, withdrawal has no legal impact on the indictments now standing against Kenyatta and Ruto. But, Kenyan withdrawal also changes everything because, in effect, the ICC trial will not be able to function without Kenyan government cooperation. Ruto is required by the ICC to be in The Hague on September 10. He previously pledged to cooperate with the court and therefore is obliged to appear. We will see if he actually goes. The entire dreary episode appears to be a setback for holding African leaders accountable.

Below is a guest post by Martin Willner, research associate in the International Institutions and Global Governance program. More often than not, when we think about customs and laws, we think of them as two distinct categories. Customs are encouraged, but optional: replying to an RSVP request, writing a thank-you note, shaking hands. Laws are mandatory: stopping at red lights, paying taxes, going to jury duty. As Kipling might put it, custom is custom and law is law and never the twain shall meet. ...except when we are talking about international law. Contrary to popular assumption, international law is more than just treaties. In addition to the catalogues of written agreements, the customs and practices of states play an equally important role in determining international legal issues. But when and how do customs actually become law, and when do they simply remain customs? These questions have been the focus of discussion within the International Law Commission (ILC) for the past year. This summer the ILC is presenting its preliminary findings in a report to the UN General Assembly. Historically, the customary practices of states have been transformed into international law. For example, the laws of war that are now codified in the Geneva conventions were developed over centuries, not through treaties but through the consistent practice of states regarding issues such as the treatment of civilians. Even before these laws were written down and clarified in Geneva, they were already considered binding under customary international law. While it is relatively easy to trace this type of transformation in retrospect, it is extremely difficult to pinpoint if, when, and how a specific custom reaches the status of binding international law. The difficulty in identifying customary international laws has real consequences. As courts around the world attempt to ensure their respective countries’ compliance with international law, they must try to determine for themselves if any customary laws apply to domestic cases. Without consensus on how to identify customary international law, what is considered international law by a country such as South Africa may be different from what is considered international law by the United States. Much of the current problem lies in the fact that customary law is, by definition, unwritten. It is derived, according to the Statute of the International Court of Justice (ICJ), from “international custom, as evidence of a general practice accepted as law.” However, this definition has often been said to be a result of “poor drafting.” Despite the nearly seventy years that have passed since the ICJ articulated this definition, fundamental terms have yet to be clarified. What does general practice mean? Does it mean that a practice is universal? Or, is it simply practiced by a majority of states? While it is tempting to blame the inefficiency of the ILC, the UN, or any other international body for failing to provide a clearer definition for an important term, this critique fails to address the inherent complications of customary law. It is perhaps the greatest weakness of the ICJ’s definition—its lack of clarity—that allows for its greatest strength—its flexibility. With its currently fuzzy definition, customary law provides domestic courts with the flexibility to (mostly) interpret the application of these laws for their own countries. The flexibility to interpret at a domestic level is particularly important for individual states regarding customary law. Unlike treaty law, once a custom is determined to be part of international law it becomes binding on all states—regardless of whether or not a country has consented to that specific law. The ILC is therefore currently undertaking a virtually impossible balancing act between providing clarity and preserving flexibility. When ultimately deciding which side to sacrifice for the other, it is likely that the ILC will prioritize flexibility—as it has in the past. The ILC has tried to address the same issues surrounding customary international law twice before, and each time it has failed. In 1971, the second time the task was attempted, the ILC came to the conclusion that “[i]t is counterproductive, and may be impossible, to codify the relatively flexible process by which rules of customary law are formed.” Furthermore, if the ILC decides to sacrifice flexibility for clarity, the resulting document would have potentially troubling consequences for courts around the world. In effect, any definitive guidance could alter the current state of compliance with international law around the world. Taking Israel’s not-so-secret nuclear arsenal as an example, in the event that Israeli courts were to use new ILC guidelines and hold that non-proliferation was part of customary international law, the country would immediately be in violation of international law despite the fact that it is not party to the NPT. In other words, future guidance provided by the ILC—a closed commission of thirty-seven members—could affect the domestic law-making process around the world. The United States would certainly not be immune from these ramifications. Currently, the United States is an outlier regarding its practice of capital punishment. Were the ILC’s guidance influential on the Supreme Court, it would be possible that the judicial branch might deem capital punishment illegal under customary law. Already without guidance from the ILC, the Supreme Court has abolished the juvenile death penalty noting that “only seven countries other than the United States ha[d] executed juvenile offenders.” The frequent and significant use of customary international law to supersede the legislative branch’s ability to make law is certainly unlikely, but poses a truly worrisome threat to the existing American balance-of-powers. Over the next four years it will be interesting to see where the ILC decides to make sacrifices as it looks to provide “guidance not prescription” on the fundamental questions of customary international law that have thus far remained unanswered. Fortunately, there is still time for the commission to successfully provide guidance—this summer’s report is only the first of four. This success, however, will depend on its ability to balance the fundamental issues of flexibility and clarity in customary international law.

Omar Hassan al-Bashir, the president of Sudan, is under indictment by the International Criminal Court (ICC), which has a warrant out for his arrest. He briefly attended a July 13-14 African Union (AU) health summit in Nigeria, but left when Nigerian human rights groups called for his arrest. The ICC justices in The Hague also issued a statement reminding Nigeria of its obligation to “honor its warrants” and hand over Bashir. A Sudanese government spokesman was quoted by the New York Times saying that Bashir’s departure had nothing to do with fear of arrest but that “he had matters to attend to in Khartoum.” Reuben Abati, Nigerian president Goodluck Jonathan’s press spokesman, said that Nigeria had not invited Bashir to come. Rather he was present for an AU event and that “Nigeria is not in a position to determine who attends an AU event and who does not attend.” This Day, a Nigerian newspaper, reported that the Abuja government was not even aware that Bashir would be attending until a few days before the conference. While President Jonathan had personally invited some of the other African leaders, Bashir was not one of them. Moreover, if Nigeria had stopped Bashir from attending, it may have risked losing the honor of hosting the summit altogether. According to Bashir’s spokesman, while in Abuja Bashir met with the presidents of Nigeria, Kenya, and Ethiopia. The president of Kenya, Uhuru Kenyatta, is also under ICC indictment. However, the court has not issued a warrant for Kenyatta’s arrest because he is cooperating with the court–unlike Bashir. The ICC is awkward for the AU. Two of its chiefs of state are now under indictment. But, the court is unpopular among many Africans who think that it unfairly targets Africa for its prosecutions. The U.S. position on the ICC is not straightforward; U.S. policy is to support the court, and the United States signed the founding Treaty of Rome. But no administration has ever sought Senate ratification of it. There has been some speculation that Nigeria’s welcoming of Bashir was somehow intended to distance itself from the United States. I think that is highly unlikely. Bashir’s visit seems to have posed quandaries for the Jonathan government, which must be mindful of its relationship with the AU. Nigeria has provided the largest number of peacekeepers in Sudan’s Darfur. Like Charles Taylor, the former Liberian warlord, Bashir is also deeply unpopular among many in Nigeria, not least because of his alleged human rights violations in Darfur and South Sudan. Under these circumstances, I find Abati’s explanation credible: Nigeria admitted Bashir because he had been invited by the AU to its summit that Nigeria was merely hosting. I also find it credible that Bashir bailed out essentially without notice because he feared being arrested.

Thirty-five years ago, U.S. National Security Advisor Zbigniew Brzezinski famously declared that the doctrine of détente “lies buried in the sands of Ogaden.” By exporting revolution to the Horn of Africa, he implied, Moscow had abandoned norms of peaceful coexistence, as well as prospects for the SALT treaty. One wonders if a more recent would-be doctrine, the “responsibility to protect” (R2P), is destined to suffer a similar fate. Two years ago, the UN Security Council seemed to vindicate this new norm, by authorizing “all necessary means” to protect Libyan civilians against strongman Muammar al-Qaddafi. Today, R2P clings to life support in Syria, as the civilian body count there mounts to appalling levels. Many commentators, including this one, welcomed the Security Council’s authorization of intervention in Libya as the first legitimated use of armed force under R2P. UNSC Resolution 1973, as well as historic support from the Arab League, provided legitimacy to a NATO-led intervention that reversed Qaddafi’s depredations and, ultimately, provided cover for Libyan rebels to remove him from power. At the time, the intervention seemed to tick all the boxes: the situation was grave, the interveners’ cause was just, and their response was proportional. After a lengthy air campaign, in which no NATO troops lost their lives, Qaddafi had been toppled from power. At the time, it was easy to overlook the fact that this Western interpretation was not widely shared—and that the Libyan case had unique features that were unlikely to be easily replicated in other settings. These features included a dictator despised in the Arab world, a country of minimal strategic importance, a small national population, and topography conducive to an aerial campaign. Diplomatic fallout began quickly. Russia and China, which had abstained from the resolution, soon objected that the NATO-led coalition had transformed the UN mandate into a license for “regime change.” Such a claim was either naïve or cynical, since all involved in Security Council deliberations should have been well aware of the expansive implications of authorizing “all necessary means,” as well as the unlikelihood that Qaddafi himself would agree to a negotiated agreement with rebel forces. Nevertheless, the complaint resonated in many corners of the globe. The African Union (AU) also emerged as a primary critic, depicting the intervention as yet another ill-advised imperialist venture on the continent. This reflected less knee-jerk opposition to R2P—after all, the AU’s constitutive act declares “non-indifference” to the internal affairs of other countries, and its Peace and Security Council has endorsed the principle of intervention in cases of genocide and mass atrocities—than pique at being sidelined diplomatically. By brushing aside AU efforts at diplomatic mediation, the Western powers reinforced African insistence that future interventions on the continent be endorsed by the African Union. The chaotic aftermath of the Libyan intervention also left a sour taste in the mouths of many UN member states. Indeed, independent militias continue to run rampant in parts of Libya two years after the intervention.  Moreover, the collapse of Libyan domestic security permitted a wave of weaponry to wash over neighboring countries—contributing to instability in the Sahel. In Mali, al-Qaeda in the Islamic Maghreb (AQIM) and extremist Tuareg groups exploited this flow of material to launch their bloody insurgency, at one point controlling nearly half of the country. Even before the civil war in Syria, then, the implementation of R2P in Libya had generated buyer’s remorse among many governments that had endorsed it at the 2005 UN World Summit. In an effort to rescue the concept, Brazil proposed that UN member states embrace the related concept of “responsibility while protecting” (RWP) in November 2011. Under this framework, the UN Security Council would undertake military intervention only as a last resort, after weighing the balance of likely consequences, and ensure that any force used was proportionate to the gravity of the situation. It would also oblige the Security Council to adopt a formal monitoring and review mechanism where states would discuss and debate the implementation of any ongoing R2P action. The proposed RWP scheme is not without problems: the “last resort” requirement is at odds with the reality that early, preventive action is often the best way to head off atrocities. The Permanent Five (P5) may also balk at committing to an ongoing monitoring mechanism for R2P-mandated missions. Nevertheless, the Brazilian proposal offers a potential bridge to bring skeptical governments back to the R2P fold. As such, it merits careful U.S. consideration rather than dismissal. It is the bloody situation in Syria, however, that has fostered disillusionment with (though not yet the demise of) R2P. The most obvious lesson to be drawn is that the implementation of R2P will inevitably be selective. If one or more of the P5—in this case Russia—sees a significant national interest in protecting the offending government, the UNSC will be blocked. Interventionist powers will then face the unpalatable choice of doing nothing or (as the United States did in Kosovo with NATO) pursuing a surrogate form of multilateral legitimacy for coercive action. Second, the Syrian case demonstrates the difficulty of applying R2P when the conflict in question has evolved from a government making war on unarmed civilians into a full-blown civil war in which both regime and rebel forces commit atrocities. When opposing sides are wearing neither white nor black hats but varying shades of grey, the threshold criteria for R2P intervention—and the means by which it should be implemented—become even cloudier than normal. Third, the situation in Syria underscores the difficulty of reconciling humanitarian ideals with geopolitical concerns. The Obama administration, from the President on down, has often denied this distinction, on the grounds that mass atrocities create dangerous spillover consequences for entire regions (with the Great Lakes region of Africa a case in point), as well as fomenting forces of (and providing havens for) extremism. Perhaps. But the strategic, economic, and human consequences of a U.S.-led military intervention in Syria are hard to predict. The costs—for regional instability, budgetary overstretch, and U.S. lives—could be gargantuan. And they need to be weighed against the likelihood (and benefits) of “success”—something the administration has yet to define. This cost-benefit analysis must also include an honest assessment of the expenses associated with “the responsibility to rebuild” the post-intervention society (something the Bush administration notoriously neglected to do in Iraq). It would be premature to describe Syria as the death knell of R2P. But it is clear that much of the idealism surrounding the UN’s unanimous endorsement of the norm eight years ago has dissipated, buried in the Libyan Desert and the blood-soaked hills of Syria.

Kenya, the International Criminal Court (ICC) and, by extension, the international community currently face the dilemma of dealing with a president and a deputy president, freely and fairly elected (more or less; many questions remain) that are charged with crimes against humanity associated with 2007 election bloodshed. Africa Confidential has an excellent review of the current state of play. Kenya’s permanent representative to the UN, Kamau Macharia, on May 2 sent a thirteen-page letter to the UN Security Council (UNSC) asking it to end the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto. He argued that Kenyatta and Ruto were duly and democratically elected and could not perform their duties in the face of “an offshore trial that has no popular resonance and serves no national or international purpose.” A variation of this argument is heard among Kenyatta’s supporters; “peace” is more important than “justice,” and the ICC process should somehow go away. But, Ruto promptly disavowed the letter on the basis that the UNSC lacks the legal authority to stop the ICC proceedings. Ruto’s lawyer reaffirmed his client’s cooperation with the ICC. The attorney general of Kenya, Githu Muigal also disavowed the letter saying Kenya is not a party to the cases and has reaffirmed Kenyan cooperation with the ICC. On May 13, the ICC prosecutor, Fatou Bensouda, rejected the Kenyan government’s claim that it is cooperating with the court. Specifically, she said that the government failed to provide certain financial records and has not facilitated interviews that could provide her with information about the role of the police in the aftermath of the 2007 elections. Earlier, she said that the government failed to provide adequate protection for potential witnesses and that bribery and intimidation played a role in the withdrawal of potential witnesses. The ICC charges against Kenyatta and Ruto were an issue in the 2013 Kenyan elections and popular backlash against the Court probably helped them. Many Kenyans seemed to think the charges would be dropped in the aftermath of an election victory, probably at the instigation of the United States and the United Kingdom because of the importance of their ties with Kenya and Nairobi’s crucial role in Somalia. In fact, UK prime minster David Cameron hosted Kenyatta in London at the May 7 Somalia conference. The UK argued Kenyatta’s presence was “essential,” and, in effect, trumped British policy to have only “essential contact” with Kenyatta and Ruto. However, Africa Confidential credibly speculates that President Obama will skip Kenya during his next Africa trip and suggests, also credibly, that there will be a cooling of relations between Kenya and the UK and the U.S. The ICC has agreed to postpone Ruto’s trial until October. Many observers think that the ICC case against him is stronger than that against Kenyatta. If the ICC were to convict one and acquit the other, there could be serious political consequences in Kenya. Kenyatta is a leader of the Kikuyu, Ruto of the Kalenjin. The two ethnic groups have long been rivals, and fighting among them was an important element in the 2007 violence. Then, Kenyatta and Ruto were on opposite sides. For 2013, they made a political alliance, and there was little fighting between Kikuyu and Kalenjin, a factor in the largely peaceful elections. A Ruto conviction and a Kenyatta acquittal might put at risk the current truce between the Kalenjin and the Kikuyu.

The May 8 New York Times carries above the fold an Adam Nossiter story, “Bodies Pour in as Nigeria Rounds Up Islamists.” The story mostly consists of horrific reports of Nigerian security services (army and police) abuses of Northern Nigerian citizens, alleged members of or connected to Boko Haram, a radical Islamic insurgency. Nossiter notes that Boko Haram is “thoroughly enmeshed” in the local population making it difficult to root out the insurgents. He observes that security service brutality “…has turned many residents against the military, driving some toward the insurgency…” The security services and the Jonathan administration in Abuja continue to flatly deny that any abuses are happening, much less systematically carried out; despite the testimony of a wide range of credible northern observers. Many of us have heard reports similar to Nossiter’s from Nigerian contacts for some time. Human Rights Watch also issued a report that, in effect, argued that the International Criminal Court should investigate both Boko Haram and the security services for crimes against humanity. For a long time I have heard that the security services round up large numbers of young men who simply disappear. They are never formally arrested, prosecuted, tried or, if convicted, punished. They simply disappear, outside the justice system altogether. I had assumed that most so detained were quietly released after a time, in part because there were few reports of mass graves. To some extent, that may be true. But, Nossiter’s grim report confirms what many local people say; that in fact, many are murdered. The disposal of so many corpses is posing a problem. The Council’s Nigeria Security Tracker (NST) has long followed security service abuses in northern Nigeria. NST data—current through April 30—confirms that violence involving Boko Haram and the security services continues to escalate in northern Nigeria. April 2013 had the highest death toll since the NST started, in May 2011. The numbers of dead that Nossiter saw are a reflection of the escalating carnage. Among the security services, training is often poor or non-existent; pay is also poor. As a matter of policy, soldiers and police are deployed outside their region of origin. Hence, security service personnel often have little understanding or sympathy for the populations they are supposed to protect. Literally, many don’t even speak the same language. But, such factors are no excuse: the security services, an arm of a state with democratic aspirations, must be held to a higher standard than vicious insurgents. Boko Haram terror is no justification for what Nossiter and others report the security services are doing. And the government’s stonewalling is counterproductive. New York Times coverage will raise the profile of Nigeria’s dirty war in the United States. Hopefully there will be more American political pressure on the Jonathan administration to take concrete steps to control its security services.

While violence broke out sporadically, post-election Kenya is far from the domestic Armageddon that followed the 2007 elections. Uhuru Kenyatta, under indictment by the International Criminal Court (ICC) for crimes against humanity in the aftermath of those elections, will be sworn-in as president this month following the 2013 elections judged credible by the Supreme Court. His chief rival, Raila Odinga, has accepted the Court’s ruling, and has conceded. Why has 2013 been so difference from 2007? Perhaps most important has been the thorough-going political reforms enshrined in a new, post 2007, constitution that significantly decentralized government authority. It replaced a unitary state with something approaching federalism. This significantly modified Kenya’s hitherto winner-take-all political culture. It also established multiple venues for political competition. For example, in 2013, Kenyatta won the presidency, but Odinga’s party won the county (state) government of Nairobi. Second, Kenyans have not forgotten the horrors of post-election 2007. There was a remarkable consensus among Kenyans that it should never again be repeated. This imposed a new degree restraint on rhetoric and behavior that is difficult to quantify, but was nevertheless real. Third, both Kenyatta and Odinga have from the beginning said they would accept the Supreme Court’s ruling on contested election results, and urged their followers to do the same. Sporadic violence after the Supreme Court ruling on March 30 indicates that Kenya is not altogether out of the woods. Nevertheless, the longer Kenya avoids a conflagration, the less likely one becomes. Though Kenyatta’s ICC indictment is an overhanging cloud, these are hopeful time for Kenya.