• International Criminal Court
    A Renewed Agenda to Advance US Interests with the International Criminal Court
    Almost seven years following the inaugural Arguendo essays, little has changed to alter the three proposals set forth in my own essay of June 3, 2014, which I address shortly.  No doubt the relationship between the United States government and the International Criminal Court (ICC) slid into a dark pit during the Trump administration when National Security Adviser John Bolton and Secretary of State Mike Pompeo took aggressive stances against the ICC, both in their rhetoric and with sanctions against staff and supporters of the Court who were threatened and inflicted by Executive Order 13928.  The rhetorical aim appeared to be literally to destroy the ICC.  The rationales used by these officials constituted the “big lie” of international criminal justice during those years. Fortunately, balanced reasoning returned with the arrival of the Joe Biden administration and Secretary of State Antony J. Blinken, who announced recission of Executive Order 13298 on April 2, 2021.  I joined some of my successor ambassadors who managed US relations with the ICC in the past to co-author an article in The Hill on May 4, 2021, that welcomes the shift back to a more constructive American future with the Court and to introduce the just released comprehensive report of the ASIL [American Society of International Law] Task Force on Policy Options for US Engagement with the ICC.  Both Blinken and the ASIL Task Force report acknowledged the long-standing position of the US government that personnel of non-party States to the Rome Statute of the ICC are not subject to the jurisdiction of the ICC.  This view—the immunity interpretation—is qualified when the UN Security Council refers a situation covering such individuals to the ICC Prosecutor under Article 13(b) of the Rome Statute of the ICC or the non-party State accepts the exercise of jurisdiction by the Court pursuant to Article 12(3) of the Rome Statute. One should recognize that use of the term “personnel” rather than “nationals” of non-party States refers to military, diplomatic, and other government-employed individuals and does not include other nationals of the civilian population.   The official US position, which I presented as the US negotiator of the Rome Statute in the 1990s, has become an outlier view as it means that non-party State personnel (and sometimes the point is broadened to nationals) can commit atrocity crimes on the territory of a State Party and claim immunity before the ICC for such crimes.  The logic of that position is difficult to grasp for most States Parties and legal scholars as it invites blatant commission of genocide, crimes against humanity, war crimes, and aggression on State Party territory (thus establishing the ICC’s territorial jurisdiction under Article 12(2)(a) of the Rome Statute) by non-party State personnel without any realistic accountability even though that State Party delegated criminal prosecutions for atrocity crimes to the ICC under the Rome Statute and its own domestic law.  Pre-Trial Chamber III of the ICC ruled in the Bangladesh/Myanmar situation that the Court has territorial jurisdiction if part of the alleged criminal conduct, which in that situation allegedly originated with non-party State Myanmar, takes place on a State Party’s territory, such as Bangladesh.  But there has been no explicit ruling by the ICC on the Court’s personal jurisdiction over the nationals or personnel of non-party States committing atrocity crimes on the territory of a State Party. In my view, which I first expressed as an amicus on December 6, 2019, before the ICC Appeals Chamber during a hearing about interpreting the Rome Statute on a different issue in connection with the Afghanistan situation, the development of customary international law has overtaken the immunity interpretation even though some persistent objectors remain.  What is often lost in the entire debate is the simple proposition that if the United States were to become a State Party to the Rome Statute, as originally intended, then the argument about immunity from the ICC for personnel of a non-party State committing atrocity crimes on the territory of a State Party would be extinguished for the United States.  If the presumption is that the United States will never become a State Party to the Rome Statute, then one might want to hold onto the immunity interpretation.  But that was never the intent of the US delegation negotiating the Rome Statute.  Our intent was to build safeguards into the Rome Statute, which we did, that would protect the United States as a State Party and for the pre-ratification years during which the United States remained a non-party State.  Thus, the argument about protecting personnel of non-party States was advanced to address only the period during which the United States, in particular, would not be a State Party.  There was no presumption that the United States forever would be outside of the Rome Statute regime.  The simple solution is for the United States to become a State Party and for the immunity interpretation to become a historical footnote.  Our ally, Israel, may have decided recently or years ago that it will never become a State Party to the Rome Statute and thus it would want to employ the immunity interpretation indefinitely.  But that certainly did not appear to be the intention of Israel’s negotiators in the 1990s, as reflected in Israel’s signature of the Rome Statute hours after I signed the treaty on behalf of the United States on December 31, 2000.  The prospect loomed that our respective countries would relatively soon become States Parties to the Rome Statute, but in the meantime we shared a common view about our non-exposure to the Rome Statute’s jurisdiction until the day each of our governments joined the Court.  Now, 23 years later, I would argue that custom (as well as common sense) creates a new dynamic that works against a particular interpretation of international law that no longer has a compelling rationale in the realm of atrocity crimes.  Even if the immunity interpretation still holds merit, then one must take sides: either the United States continues to invoke the long-standing argument as an interim protective step before soon becoming a State Party to the Rome Statute, or one advances that view for the purpose of perpetually remaining outside of the Rome Statute’s body of States Parties, which now number 123 countries and most of America’s allies and friends.  When I employed the argument representing the United States, it was for the former purpose and never for the latter premise.  Indeed, an ancillary purpose of the immunity interpretation was to incentivize governments to join the Rome Statute, knowing that their actions prior to ratification, including those of their personnel, would not be scrutinized by the Court.  But that is a time-limited incentive that becomes disingenuous if decades pass without commitment.  Today, I believe the United States should move towards ratification of the Rome Statute as a near-term goal and thus shorten the lifespan of the immunity interpretation in Washington.  Turning to the three proposals set forth in my Arguendo essay of 2014, which remain relevant today, Secretary of State Blinken should convey a letter to the United Nations, as depository of the Rome Statute, to reaffirm the US signature on the Rome Statute and this country’s obligation as a signatory nation not to take steps to undermine the Rome Statute.  That would send a powerful signal to the rest of the world that the United States has resumed its leadership in international criminal justice.  Second, work on the crimes against humanity bill has resumed on Capitol Hill this year under the leadership of Senator Dick Durbin (D-IL), chairman of the Senate Committee on the Judiciary.   The Working Group on Crimes Against Humanity (convened by the ABA), which I chair, is deeply involved in advising on the draft of the bill and seeing acceptable text through to adoption as a long overdue law.  There is no morally defensible argument left as to why this gap remains in federal criminal law.  A Crimes Against Humanity Act would enable the United States to exercise its own investigative and prosecutorial authority over perpetrators of crimes against humanity falling within US jurisdiction, thus effectively avoiding ICC scrutiny and ensure, as already is the case with genocide and war crimes, that these individuals do not roam freely on US territory.    Finally, the very complex and violent situation between Israel and Palestine, and now even within Israel itself between Jewish and Arab citizens, begs for an overall peace agreement.  If such a treaty were to be negotiated, then the ICC should be factored into the agreed deal as proposed in my 2014 essay.  Since then, the ICC accepted Palestine, which is a non-member observer State at the United Nations, as a State Party for the purposes of the Rome Statute and launched an investigation of alleged atrocity crimes following referral by Palestine.  That is even more reason to use the opportunity of a peace agreement, which is so desperately needed now, to introduce the ICC into the negotiations and resolve points of serious contention.  The ICC Prosecutor remains seized with the State of Palestine situation and likely will be requested to investigate the violence of 2021.  Palestine can use its leverage as the referring State Party to the ICC to influence the overall strategy of the Prosecutor within the context of a negotiated peace treaty and perhaps an Article 98(2) non-surrender agreement between Israel and a fully recognized nation of Palestine that would emerge from a two-State deal.   Atrocity crimes are not abating in the world and accountability for them is only sporadically being pursued, much less achieved.  The United States still has unique influence, alliances, and commitment to the rule of law to turn the tide against atrocity crimes.  The ICC is a good place to start, again. 
  • International Law
    Renewing justice for atrocities
    President Biden’s recognition of the Armenian genocide, inflicted over a century ago with an estimated 1.5 million deaths, acknowledges historical facts and rejects Turkey’s long campaign of denialism. The president deserves praise for delivering such a clear statement and, in doing so, underscoring the United States’ commitment to confront genocide. As former diplomats committed to justice for mass atrocities, we have worked collectively for the better part of the last three decades on behalf of the American people to build, support and staff numerous tribunals to prosecute perpetrators of genocide, crimes against humanity and war crimes against thousands, sometimes millions, of innocent people. America has led before and we must continue to champion the pursuit of international justice for such atrocity crimes. The American Society of International Law just issued a Task Force report, U.S. Options for Engagement with the ICC, describing this country’s far-reaching support to international justice over the last 75 years and advocating tangible and constructive options for U.S. policy towards the permanent International Criminal Court (ICC). It should be noted that one of us, Todd Buchwald, helped author the report. Despite aberrant episodes of withdrawal, Washington has repeatedly projected — through diplomacy, legislation, presidential directives, military manuals, strategic messaging and targeted appropriations — America’s strong national interests in promoting human rights, the rule of law and accountability for those responsible for mass atrocities. Bipartisan support for these underlying values has deep roots, including in the United States’ instrumental role in establishing the Nuremberg and Tokyo tribunals to try major war criminals after World War II and its critical support for tribunals prosecuting perpetrators of atrocity crimes in Rwanda, former Yugoslavia, Sierra Leone, Timor-Leste and Cambodia.  American efforts to buttress international criminal justice must include engagement with the ICC. The United States negotiated the creation of this institution and signed the court’s treaty in 2000 but never ratified it. Washington has not joined the more than 120 states, including almost all our allies and friends, as a member of the court. Nonetheless, save in the court’s very early years, the United States embraced a pragmatic approach in which Washington worked with the court and its supporters on issues of common interest, recognizing that there would be issues on which our interests would diverge.   The court’s investigations of the situations in Afghanistan (including some torture allegations against U.S. personnel) and Palestine (based on the court’s finding that Palestine need not qualify as a state under international law before the court exercises jurisdiction) present such issues and undoubtedly will remain contentious. But such disagreements must not translate into reflexive rejectionism of everything the court touches, as in the Trump administration. Far too much of the court’s work serves U.S. interests to make such an approach viable or productive. The United States learned this lesson as it confronted genocide in Darfur. A policy course correction generated a constructive relationship that enabled the Security Council to refer genocidal atrocities in Darfur to the court. The Obama administration facilitated the surrender of long-time fugitives from justice to the court — efforts that served American interests by incapacitating individuals accused of committing the worst crimes known to humankind. The United States doubtless will need to turn to the court again to enforce the proposition that atrocity crimes must be prosecuted.  This was an underlying message when Secretary of State Antony J. Blinken recently announced the lifting of Trump-era sanctions against the court that were widely seen as counterproductive and anathema to the rule of law and American values. The Biden administration should keep turning the page and return to a pragmatic approach to the court that is consistent with American interests and with our long-standing support for global rule of law and accountability.  The United States, its allies, and friends need the court in our collective toolbox for responding to crises where widespread atrocity crimes are being perpetrated and other options do not exist. We should work with our allies to improve the court’s effectiveness and the focus on its core mission, as proposed in a recent independent expert review. Current realities beckon. As the U.S. government surveys the world, Russian troops intimidate Ukraine, Venezuelans endure life-threatening government policies, Syrians and Yazidis cry out for justice, Rohingya flee Myanmar’s military, Uyghurs are cruelly interned in Chinese camps and atrocities rage in Ethiopia’s Tigray region. The ICC needs reform, but a turbulent future demands that we recognize the court for what it is: a critical pillar in the framework of international accountability and atrocity prevention. We would be foolish to pretend otherwise. The authors served respectively as U.S. ambassadors for global criminal justice in the Clinton, George W. Bush and Obama administrations. The views expressed are solely their own and do not necessarily reflect any institution with which they are associated.
  • International Law
    Save the Olympics, Again
    In May 1984, I published an op-ed in The New York Times entitled, “To Save Olympics.” It called for the depoliticization of the Olympics through an international treaty that would establish permanent locations for the games. During the intervening years nothing has changed to alter the political and economic risks of holding the Olympic Games in different cities, now every two years. This includes notably Beijing, which will host the Winter Olympics in 2022. In his own recent op-ed in the Times, Senator Mitt Romney (R-UT) rightly argued for an economic and diplomatic boycott of the Beijing Olympics but not a government-imposed athlete boycott. China’s genocidal treatment of its Uyghur minority population, anti-democratic governance of Hong Kong, and aggressive threats against Taiwan are reasons enough to publicly delegitimize its hosting the Olympics and its reaping any profit or political hype from the Games. Still, at this late date the Olympic athletes of 2022 must be prioritized and allowed to compete, even if Beijing remains the host city. Now is an opportune moment to consider more fundamental changes to the Olympics, so that we do not find ourselves in this kind of situation again. I spelled out my view almost four decades ago, writing: “[I]t is now clear that the Games must be depoliticized if they are to be preserved. Just as significant, the rights of qualified athletes to compete must be protected.  An ‘International Olympics Treaty,’ negotiated under the auspices of the United Nations, could prevent world leaders from routinely sacrificing athletes’ rights on the altar of nationalism.  Athletes who have devoted their lives to the goal of competing in the Olympic Games should have a guarantee that their achievement will not be snatched from them at the eleventh hour.” In the modern history of the Olympic Games, which resumed in Athens in 1896, there have been at least 11 instances where the site of the Games has given rise to political boycotts, disruptive controversies, nationalist propaganda, or human tragedy. These cities include Berlin (1936), London (1948), Mexico City (1968), Munich (1972), Moscow (1980), Los Angeles (1984), Seoul (1988), Atlanta (1996), Beijing (2008), Sochi (2014), and soon Beijing again. The economic burden imposed upon cities vying for the Olympics has increased astronomically in recent decades and burdened national economies. For example, the Greek government invested the equivalent of $11 billion at current exchange rates in the 2004 Summer Olympics, double its initial budget, and never offset the cost of the stadiums, which fell into disuse and sapped the national budget. That year, Greece’s national debt surged to 110.6 percent of gross domestic product, the highest in the European Union. As the country’s deficit ballooned, the European Commission subsequently imposed fiscal monitoring on Greece in 2005, an unprecedented step. Similarly, to host the Summer Olympics in 1976, Montreal overspent billions beyond its initial projected figure of $124 million. The spiraling cost overruns incurred during construction dumped upon the city’s taxpayers a debt of approximately $1.5 billion that took three decades to repay. In 1988, South Korean officials forcibly relocated roughly 720,000 people and demolished 48,000 buildings to prepare the city for foreign visitors ahead of the Seoul Summer Olympics. Likewise, the Chinese Government bulldozed vast tracts of poor communities, displacing more than 1.5 million citizens in order to build Beijing’s 2008 Summer Olympics infrastructure. Accounting for the city’s large-scale investments, the cost of Beijing’s exhibition surged to an estimated $45 billion. A similar scenario unfolded in London, where the government bulldozed an entire low-income housing development in preparation for the 2012 Summer Olympics. In 2014, the Russian resort city of Sochi hosted the costliest Olympic Games in history, totaling an estimated $50 billion. For years after hosting the Summer Olympics in 2016, Rio de Janeiro struggled with debt, colossal maintenance costs for empty facilities, and inadequate public services, with total costs reaching an estimated $13.1 billion. In 2017, the International Olympic Committee (IOC) refused to assist organizers to pay millions of dollars in outstanding debt. In the aftermath of the Games, the city struggled to find use for vacant sporting venues and to garner renters for the 3,600 units in the Athletes Village. In January 2020, a Brazilian judge ordered the closure of the Olympic Park due to safety concerns, describing the venue as “progressively battered by the lack of care” and “ready for tragedies.” As the world’s best athletes prepare for the Tokyo Olympics, it promises to be one of the most expensive Summer Games in history. The expected hit on Japan’s national budget to build the requisite sites is $15.4 billion. The cost overrun had already exceeded 200 percent without accounting for the additional billions in expenses resulting from the COVID-19 delay. Though in its original proposal in 2013 to host the Games, Tokyo estimated it would spend roughly $7 billion, early estimates in 2019 projected the cost would surge to more than $26 billion. Further, given the appropriate decision not to permit spectators to witness the delayed Games of “2020,” Japan will incur further financial loss. The intense competition among cities to burnish their image by hosting the Olympic Games is understandable but rarely makes economic sense. The process also is often marred by the tendency of the IOC to choose the city that submits the highest costing proposals, creating a “winner’s curse” for the country and its taxpayers. In the past, at least, it has also led on several occasions to serious allegations of impropriety or corruption involving, among others, members of the International Olympic Committee. There is a better way. The International Olympics Treaty that I have proposed could be negotiated to establish two permanent sites, one for the Summer Olympics and one for the Winter Olympics. Each of these locations would establish an “Olympic-free zone” where the designated national government agrees by treaty to govern such territory as permanently dedicated to an apolitical Olympic purpose and to comply with the operational requirements set forth in the treaty. In return, the budget of the Olympic Games every two years would be raised by the parties to the treaty and administered by a committee of auditors and financial experts set up by the agreement. This would include management of the commercial media coverage, sponsorships, endorsements, and spectator ticket sales that are major components of the revenue stream. The initial investments required to build modern facilities could be financed with bonds guaranteed by the major treaty parties (with high sovereign debt ratings) and repaid with revenue raised in connection with the Games. Those facilities need not be rebuilt elsewhere every two years and that alone would save billions of dollars in construction costs in perpetuity. The nations that initially refuse to enter the treaty regime, as I earlier wrote, “could participate in the Games under restricted conditions, including the payment of surcharges. Enough incentives and penalties could be built into the treaty to induce all nations to sign and ratify it.” The countries meriting serious scrutiny should not include any major global power or politically-stressed nation so as to avoid the vicissitudes of global politics and boycott fever.  Candidates for the permanent Winter Olympics site might include Norway, Sweden, Finland, Austria, and Switzerland. For the Summer Olympics, Greece, the birthplace of the Olympic Games, might uniquely qualify as could Jamaica and Singapore. (This assumes that seasons defined by the Northern Hemisphere calendar are selected.) Any of these nations should be able and obligated to facilitate the sports-centric Games with no political or nationalist agenda. The designated city would benefit significantly from spectators flocking to the host country every four years, the employment arising with permanent facilities built and maintained for each Olympic Games, and their well-planned use during off-years. To further avoid the enormous costs and political risks of the Games, a city that weather-wise can convene both the Summer and Winter Olympics in a politically “safe” country could be an attractive option with the bonus of Olympic events held every two years. While Canada, China, France, Germany, Italy, Japan, Russia, South Korea, and the United States have garnered both sets of Games and some of these nations are on deck through 2028, none of these mega-powers  likely would pass the political litmus test for the permanent Olympic site. The year 2030, for which no city is yet selected for the Winter Olympics, might be a good target date for transition to permanent Olympic status for one or two suitable cities under a freshly drawn international treaty. The practical difficulties of persuading countries to forfeit any future bid for an Olympic site, including those currently in the queue as bidders, cannot be underestimated.  But the current illogical system is far too costly on political and economic grounds, invites corruption, and burdens average taxpayers of the host nation.  Athletes should compete for the sake of sports excellence in an essentially neutral and financially-secure arena. They should know that every two years a city of ever-lasting commitment to the Games will host them for only one reason: to realize their individual Olympic spirit from which the whole world benefits. The author thanks Madeline Babin of the Council on Foreign Relations for her research assistance.
  • Transition 2021
    Save the world — America's greatest priority
    When the United States and the world emerged from the Cold War 30 years ago, the watchword in foreign affairs was “change.” Now, on so many global fronts, the imperative goal is far more arresting: to save humanity and the planet. The coronavirus pandemic has delivered one soccer punch after another to the gut of nearly every society, emphasizing not only the dominating impact of global health but also the singular goal of survival as the Joe Biden administration, with its ambitious agenda, enters office. Before I entered the Clinton administration in 1993 (becoming the first ambassador at Large for War Crimes Issues in the second term), I served as senior consultant to the Carnegie Endowment National Commission on America and the New World and helped draft its report, Changing Our Ways. It was a blueprint for the post-Cold War foreign policy of the United States and it advocated transforming America’s mindset from containment to change. The end of the Cold War had opened a whole new playing field to institute bold initiatives that would create a progressive foreign policy unshackled from the constraints of the long struggle with the Soviet Union.   The Carnegie report presaged some of the Clinton administration’s agenda, although its implementation fell short of expectations. My own slice of the change agenda focused on United Nations peacekeeping and international criminal justice, which we pursued to expand their reach globally. I was a carpenter of change, but then the George W. Bush administration reset the nation’s goals. When Barack Obama rode into the presidency on a change agenda (“Yes we can”), the prominent survival imperative was his administration’s dedication to confronting climate change. Other initiatives, like the Affordable Care Act (ACA), were difficult and innovative steps toward real change, but they were not survival initiatives. Today the survival imperative eclipses the change agenda. The former recognizes there is no way out because the stakes are so high, while the latter can rise and fall on the vicissitudes of politics. The coronavirus and its horrendous death count compel isolationism in domestic life, economic upheavals and suspensions of travel as the world awaits widespread vaccinations. Our shared predicament screams out for multilateral initiatives, global cooperation and shared sacrifice last experienced during World War II.  There are inescapable realities: The fate of the planet and humanity are the masters of policymaking now. They require, for example, the end of American exceptionalism, a tiresome battle cry whose time is long expired, and the beginning of a new era of assertive American collaboration with other nations and international organizations.    Science will rule in global health and the environment: A new global compact on prevention of infectious diseases must be conceived so that pandemics and epidemics are not only reduced, but the worst outcomes prevented with multilateral planning and stockpiling. Climate change can only be minimized now with audacious innovative policies, including targeted investments, that radically reduce harmful emissions, a goal that compels international cooperation driven by courageous political leadership across the globe. The nuclear arms race, which verges on a breakout moment that will accelerate extreme risk to both humanity and the environment, must be dramatically reversed with strong diplomatic initiatives on arms reductions and non-proliferation. Cyberspace has to be tamed so that it helps shape a peaceful and prosperous world and is no longer permitted to relentlessly propagate hate, misinformation and even genocidal violence. Preventing atrocities and massive refugee flows is essential to stop the hemorrhaging of humanitarian crises in the 21st century and to liberate resources for saving rather than rescuing humanity. Major powers must forge new initiatives with the United Nations and humanitarian agencies to intervene early during armed conflicts and internal repression to obviate atrocity crimes and migrant expulsions. Though in recent years the United States slipped into near irrelevance in many global arenas, that need not be the future of the American role in the world. Ideological jousts offer few answers. The pandemic has exposed the life-threatening realities that must be wrestled down by powerful actors on the world stage. The Biden administration, Congress and even the American judiciary will be judged by how pragmatically, eschewing partisanship, they use their vast powers to help build a global coalition of survivalists. The greatest priority is no longer to change the world; it is to save the world.  
  • Sub-Saharan Africa
    The Changing Style of African Coups
    Something of a democratic recessional is underway in sub-Sahara, with a weakening of civil society and democratic institutions. This both reflects and facilitates assaults on civilian, secular governments by domestic insurrections—as well as jihadi and criminal elements—against the backdrop of an economic slowdown and COVID-19. As the August coup in Mali shows, military seizures of power have not disappeared entirely. Nevertheless, the old style of coups—occupation of the state radio and television stations, the presidential palace, and perhaps the central bank, with the arrest of the deposed chief of state by military units based in the capital, all accompanied by martial music—has become rare in Africa. Old-style coups as methods of transferring power face international opprobrium. More common now are incumbent chiefs of state, often with an authoritarian bent, using different, more subtle methods to stay in power rather than seize it, often justifying themselves by the need to counter insurgencies or even COVID-19. The new playbook often includes somehow overturning constitutionally mandated presidential term limits and then winning rigged or managed elections. However, as Guinea-Bissau President Umaro Sissoco Embaló told the Economic Community of West African States, third terms "count" as coups. Nonetheless, the abolition of term limits often has a veneer of legality, while the subsequent elections, represented as expressions of the will of the people, confer international legitimacy, if much less so at home. In Mali, a military regime, by appointing a civilian, fig-leaf prime minister and promising elections in the future, has largely satisfied African and international opinion. In other African countries, incumbents make it all but impossible for challengers to campaign. Over the next six months, elections are scheduled in Benin, Burkina Faso, Central African Republic, Ghana, Guinea, Ivory Coast, Niger, Seychelles, Uganda, and Tanzania. With only the exception of Niger, presidential incumbents are all running for reelection. Alteration of the constitution to sidestep term limits, intimidation of opposition candidates, and repression of critics have already attracted Western media attention in Guinea, Ivory Coast, Uganda, and Tanzania. More are likely to follow. Western media reports the disappointment of some African human rights activists in declining American commitment to supporting African elections. Certainly the Trump administration and Secretary of State Mike Pompeo have been less active than President Obama and former Secretary of State John Kerry. The Trump administration’s laissez-faire stance toward third-termism in Africa has mostly coincided with a reversal in term limit norms on the continent: since 2015, leaders of eleven sub-Saharan countries have evaded or overseen the weakening of term limits. However, in my new book, Nigeria and the Nation-State: Rethinking Diplomacy in the Postcolonial World, I argue that African elections as conducted today are a colonial construct that does not fit well with traditional African governance, and that too often they promote or reinforce authoritarian chiefs of state. Rather than focus on the mechanics of elections, U.S. policy should emphasize the rule of law and an independent judiciary as the path to improved governance and democracy.
  • Local and Traditional Leadership
    Sharia Punishments Embarrass Nigeria
    Inhumane sharia punishments, including flogging, amputations, and stoning, have long embarrassed the federal government of Nigeria. That is happening now, with the 120-month prison sentence handed down by a Kano sharia court to a thirteen-year-old boy, Omar Farouq, and the death sentence handed down by the same court, again for blasphemy, on a twenty-two-year-old musician, Yahaya Sharif, for a song he shared on social media. A third, Mubarak Bala, a self-proclaimed atheist, has disappeared in police custody. These cases have attracted attention in the international press and in Nigeria. The director of the Auschwitz-Birkenau holocaust museum, Piotr Cywinski, has appealed to President Buhari to secure the boy's release, and has recruited 119 volunteers worldwide, each of whom is willing to serve one month of the boy's sentence. (President Buhari has visited Auschwitz.) With respect to musician Yahaya Sharif, eighty-five thousand have signed a petition to save his life. Those signatories presumably are mostly Nigerian.  Thus far, there has been no comment from President Buhari's office, while the Kano governor's office has said, "the position of Kano state government remains the decision of the sharia court," according to Western media. According to the constitution, Nigeria is a secular state with guarantees of freedom of religion and free speech. But in twelve predominately Muslim states in the north of the country, Islamic law, sharia, operates in the criminal as well as the religious domain, though only Muslims are supposed to be subject to it. Sharia is not uniform and varies from state to state, though blasphemy appears to be a capital crime in all of them.  Under Nigeria's constitution, federal law is superior to state law including sharia. Federal authorities prevent the implementation of inhumane sharia sentences and have voided sharia decisions that are contrary to federal law. In fact, a sharia court has carried out only one death sentence since 1999, as far as is publicly known. However, for the federal authorities to intervene they must know about the case. If the defendant has a lawyer or access to the media, that happens. If, however, the defendant cannot afford a lawyer and has no media access, his fate may well be determined by the full rigor of sharia. Sharia and its punishments often command popular support: a mob burned down the house of musician Yahaya Sharif after his arrest, with no consequences. However, there are Nigerian qadis (sharia court judges) that are seeking to reform sharia punishments, arguing the most inhumane are imported from the Middle East and are not congruent with true Islam.   The context of these accelerating episodes involving sharia is the declining power of the federal government and the concomitant growth in the authority of governors and local rulers. For example, the police are supposed to be national, but formal and informal militias are becoming increasingly powerful. Sharif was arrested by what the media describes as "Islamic police." It is likely that he was arrested by the Hisbah, a vigilante force that enforces sharia regulation, especially with respect to dress. The Hisbah often has recognition from the state in which it operates, but not the federal government.
  • Human Rights
    Human Rights and Democracy in South Asia
    Alyssa Ayres, CFR senior fellow for India, Pakistan, and South Asia, testified before the House Committee on Foreign Affairs, Subcommittee on Asia, the Pacific, and Nonproliferation, on human rights and democracy in South Asia. The written testimony can be accessed here and a video of the hearing can be accessed here.
  • Local and Traditional Leadership
    Nigeria Launches Community Policing Initiative
    In the face of apparently soaring levels of crime and violence, the Nigerian government has launched a community policing initiative. Abuja has set aside N13 billion (about $35 million) to fund the launch and is recruiting some 10,000 constables, according to Nigerian media. The Chief of Police for Ekiti state is hinting that the new constables will be deployed in the areas from which they come. Locally based, the constables would develop ties with community leaders and, it is hoped, bring security closer to the people.  The Nigeria Police Force was established by the British colonial authorities. Unlike in the United Kingdom or the United States, the police were to be a national gendarmerie rather than locally-based. Police would be recruited nation-wide, and by policy they would not be assigned to where they came from. The concern of the British and Nigerian successive post-independence governments was that otherwise, police officers would favor those from their own ethnic group and religious affiliation. The police – this national gendarmerie – is often poorly trained, poorly paid (salaries are often in arrears), and associated with corruption. Many, perhaps most, Nigerians have as little to do with the police as possible. U.S. assistance to the Nigerian police is severely curtailed because of credible allegations of human rights violations by the latter.  In the face of mounting security threats – crime, Islamist insurgencies, quarrels over land and water, and disaffection in the oil patch – something like local policing has been emerging, contrary to long-standing policy. These entities may or may not have formal links to the police. Civilian Joint Task Forces (CJTF) operate in the north, ostensibly to assist the police. In the north, so-called Hezbollah units enforce sharia (Islamic law) with respect to public dress and behavior. In Yorubaland (southwest Nigeria) governors have joined together to establish a Yoruba constabulary, apparently with the approval of the federal Inspector General of Police.  It might appear that Nigeria is moving toward the American practice of state and local police, with only the Federal Bureau of Investigation (FBI) being an arm of the federal government. If that is the intent, Nigeria has a long way to go. The national police service remains a powerful, if hated, interest. It also remains to be seen if ethnic and religious favoritism surfaces among locally-based law enforcement units. The current concept of 'police' in Nigeria is a colonial import. It reflects a Western legalistic definition of crime. Traditional societies in Nigeria tend to have a more nuanced view, with an emphasis on the context of the alleged crime or the dispute. Rather than a police force, traditional villages often had watchmen. If the new constables evolve in that direction, it might erode the pervasive distrust of law enforcement.
  • South Africa
    South Africa's Ramaphosa Tackles Corruption and Strengthens His Hand
    South Africans have long feared that corruption would move from "retail," small-scale and individualistic, to "structural," as it is in some other African countries, where corruption infuses the political economy. Those fears accelerated during the 2009-2018 presidency of Jacob Zuma, which was characterized by nepotism, cronyism, and patronage networks, altogether labeled "state capture," and blatant corruption within some state-owned enterprises fully reported by the media. Corruption also fueled Zuma's efforts to remain in power and to undermine South African institutions that limited what he could do, which were established during the transition from apartheid to "non-racial" democracy. Those institutions, supported by freedom of the press, a strong parliamentary opposition, a growing democratic culture, and operating within Africa's most developed economy, were strong enough to survive Zuma. Since the first "non-racial" elections in 1994, South Africa has been governed by the African National Congress (ANC), by origin an anti-apartheid liberation movement that has always been "big tent" and multi-racial. It was the party of national icon Nelson Mandela. Especially under Zuma, it became less multi-racial, was widely accused of corruption, and its popular support has steadily eroded. The country's economy severely contracted in the aftermath of the 2008 world-wide financial crisis, and recovery was slow. With declining popular support, the stage was set for Cyril Ramaphosa's successful challenge of Zuma within the ANC for party leadership and the national presidency in 2018. However, bolstered by his extensive patronage network, Zuma and his allies retained significant power within the party. Since 2018, Ramaphosa has moved slowly and carefully to sideline Zuma's supporters, reform the economy, and tackle corruption. Ramaphosa's popularity owes much to his perceived competency and his opposition to corruption.  Reformers often accuse Ramaphosa of moving too slowly against corruption. However, over the last weekend in August, the ANC's National Executive Council, the supreme leadership organ between national conventions, determined that all ANC government and party officials accused of corruption must be suspended from office pending investigation and resolution of the charges. No doubt the NEC was moved by, among other factors, public outrage over the perceived corruption of some ANC personalities with respect to disbursement of COVID-19 relief. (South Africa has by far the largest COVID-19 caseload in Africa.) Though some of the party leaders affected by the new policy are allies of Ramaphosa, far more are associated with Zuma. Hence, the NEC, led by Ramaphosa, appears to have taken meaningful steps against corruption while at the same time strengthening the president's position within the party.   
  • Nigeria
    Nigerian Atheist Arrested and Disappeared
    The arrest and subsequent disappearance of Mubarak Bala, an avowed atheist from a prominent Muslim family in Kano and an engineer by profession, illustrates the fragility of human rights and the rule of law when an individual directly challenges the norms of conservative society in Nigeria. Bala says he rejected Islam and embraced atheism following exposure to a video of the beheading of a Christian woman in 2013 "by boys about my age and speaking my language." The immediate cause of his arrest was his Facebook post calling the Prophet Mohammed a terrorist; a group of lawyers in private practice complained about it to the police. According to Bala's wife, following his arrest four months ago, he has been denied access to a lawyer, contrary to a court order. She has been unable to contact him, and the authorities have refused to respond to inquiries about him. Now she is asking for "proof of life," implying the possibility that he has been extrajudicially murdered. The response of Bala's father and older brother to his 2013 profession of atheism was to have him committed to a mental hospital where, he says, he was beaten, sedated, and threatened with death. Under a northern Nigeria version of sharia (Islamic law), blasphemy is a capital crime, though execution is rarely carried out. Under nation-wide, secular law, the penalty is two years imprisonment. Assuming Bala is still alive, the disposition of his case may depend on the legal system under which he is tried. Nigeria's federal constitution explicitly guarantees absolute freedom of religion; yet, in a seeming contradiction, blasphemy (of which Bala's Facebook post would seem to be a clear example) is a crime, though lesser than under sharia. If Bala is dead, it should not be assumed that it was necessarily at the hands of the security services. Conditions of incarceration promote disease, especially when prisoners are denied access to their families, as Bala has been. It is also possible that fanatics have taken justice into their own hands and murdered him, perhaps in an "honor killing." Nigeria, alas, has a culture of impunity; if Bala died under embarrassing circumstances, authorities at any level might successfully cover it up. The Bala case raises multiple hot-button issues. His public embrace of atheism is a direct challenge to the patriarchal authority of his father, his elder brother, and, indeed, his entire distinguished Islamic family. His profession of atheism is a direct assault on traditional, northern Islamic society when it is under siege from the radical Islam of Boko Haram, but also (perhaps more assiduously) secularism and Christianity in the more advanced southern part of the country. Blasphemy is viewed as warranting death in other conservative Islamic societies, such as Saudi Arabia and Pakistan, as well as among northern Nigeria's Muslims. Bala's lack of access to a lawyer despite a court order highlights the weakness of the rule of law. Atheism is seen as an assault by both Christian and Muslim Nigerians, even if the focus of the two is often different. Popular reaction to atheism is reminiscent to that of homosexuality. The draconian laws against the latter, including the possibility of the death penalty, were equally supported by Christians and Muslims during a particularly intense period of religious rivalry. Atheism, blasphemy, and homosexuality are perceived as, somehow, assaults on the family. Yet, as governance at all levels deteriorates, it is the family that provides the context and the safety net in which Nigerians live out their lives. 
  • Local and Traditional Leadership
    The Prospect of Local Policing Amid Security Breakdown in Nigeria
    Personal security is rapidly deteriorating in Nigeria. There is the Boko Haram insurrection in the northeast, unrest in the southern oil patch, and conflict over water and land in the middle of the country. Many of these challenges are long-standing. Adding to the list of security crises is a nationwide crime wave involving kidnapping for ransom, cattle rustling, and home invasions. Such crimes have long existed in one part of the country or another, but what is new is their intensity and reach; even the poor are now victims of kidnapping, for example. Security in Nigeria is the responsibility of the army and the Nigeria Police Force (NPF). The army has long been used to maintain domestic order, and its units are now present in almost every state. Since the colonial period, the police have been a national gendarmerie, with no local or state police service. One justification for a national, rather than local, police is the fear that local police could be suborned by local political "big men," a concern with some merit. As Nigerian states multiplied under military rule, many came to be dominated by a particular ethnic group. Hence the concern that local or state police would favor that group to the disadvantage of ethnic minorities. The overreliance on the military to ensure domestic law and order, together with increasing crime, have sapped public confidence in the police. In areas of unrest—notably the northeast under assault from Boko Haram and in the oil patch threatened by militants—local vigilante groups have emerged where government has proven inadequate. The presence of vigilante groups is often tacitly sanctioned by government authorities. In Yorubaland, state governors are taking the concept of local security a step further, cooperating to establish what amounts to a regional police force, though, in theory, it is meant to support, but not replace, the national police. Amotekun, known officially as the Western Nigeria Security Network, is funded by the governors and has the blessing of traditional Yoruba leaders. The Nigerian National Assembly is considering recognition and authorization of regional police forces and, presumably, regularizing their relations with the NPF. Advocates have long argued that police forces under the control of the states would be congruent with Nigeria's federal system and that the states could impose greater accountability on the police than the federal government. Some see the NPF as evolving into something akin to the U.S. Federal Bureau of Investigation, with state-based police dealing with most criminal activity. Small community policing initiatives, some supported by the United States and United Kingdom, have been met with success in the past. The issue has always been institutionalizing such initiatives and scaling them up. Most observers will welcome the decentralization of policing, but the organization of police is only part of the problem; the police remain underfunded, undertrained, and likely number too few for a country of some 200 million people. Further, the police are widely hated, not least because of their corruption, which, in turn reflects their low and inconsistently-paid salaries. Those issues would not appear to be addressed by the devolution of local policing authority from the federal government. 
  • Demonstrations and Protests
    Black Lives Matter Protests in Africa Shine a Light on Local Police Brutality
    The African media has closely followed the Black Lives Matter protests in the United States, almost always in solidarity with the protesters. Especially among African human rights groups, the American focus on police brutality resonates strongly. While generalization is risky about a continent with more than fifty states and one billion people, it can be said that for most Africans, the policeman is not your friend. The popular perception is that police brutality is the norm. There has been reporting on police brutality in enforcing COVID-19 restrictions, especially in Kenya and South Africa, where Western media is based. In Kenya, human rights activists report that the police have killed twenty-two people while enforcing COVID-19 restrictions. On July 4, residents of a small town in western Kenya burned down a police station to protest the police killing of a trader, whom police accused of selling fake sanitizer. As of early June, human rights activists in South Africa were holding the police accountable for at least ten deaths while enforcing COVID-19 restrictions. In response to the public outcry, President Cyril Ramaphosa promised that the police officers involved would be held accountable. Police use of excessive force is an old song in Africa, and reform is difficult. Police forces tend to have been established by the former colonial powers, and they are national—a gendarmerie—rather than local. They are often poorly trained and paid; many resort to petty corruption simply to feed their families. Too often their culture is oriented toward protecting the state, just as it was during colonial rule, rather than serving the public. The elites that control and benefit from the state often dismiss cases of abuse and are slow to institute meaningful reform. In many African countries, the police are one element in a system of institutional underdevelopment. Where the rule of law is feeble, courts are often corrupt, and prison conditions can be unspeakable, people will take justice into their own hands. There are reports of mobs lynching an alleged thief caught stealing in a city market, for example. Hence, too often the police function as a weak, under-resourced occupying power, too ready to resort to excessive force.  Hence, meaningful police reform may require the overhaul of the entire legal and judicial system and a fundamental, positive realignment of governments with the people they ought to serve. Such a reform program is not so simple or easy on a continent in the midst of a pandemic and one in which the quality of political leadership is often poor.
  • United States
    Trump’s Threat to Use the Military Against Protesters: What to Know
    Amid protests against racial injustice, can President Trump deploy the military to bring “law and order” to American streets?
  • Nigeria
    Recent Flare Up in Violence Across Northwestern Nigeria
    Some five hundred "bandits" attacked a village (or perhaps several villages) in Katsina State in northwest Nigeria over May 30 and 31. They made off with "thousands" of livestock, presumably cattle, and killed eighteen villagers and a local headman. The bandits (as the Nigerian police are calling them) were mounted on motorcycles and armed with "sophisticated" weapons, including assault rifles.  This episode seems to be part of a slew of attacks across Nigeria’s northwest region, which is made up of Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, and Zamfara states. While levels of violence in Zamfara have long been high, it appears that violence is spreading throughout the region. Across the northwest, an employee of the well-regarded International Crisis Group estimated that about 550 people, comprising villagers, bandits, and police were killed in such violence in May. From 2011 to 2020, the Nigeria Security Tracker recorded 8,500 deaths related to political violence across those seven states. Crisis Group reports similar numbers. Thousands have fled their homes.  Questions abound about this and other attacks. How did bandits mount such a large operation? If they indeed numbered five hundred, their attacking force would be far larger than almost any mounted by Boko Haram to date. How did bandits procure so many motorcycles? Where did the "sophisticated" weapons come from? If this was only a cattle-rustling operation (now common in the northwest and the middle belt), it appears to have been exceptionally well-resourced and organized. Finally, who exactly is responsible for the many recent attacks? Possibilities include criminal syndicates, jihadi militants, aggrieved farmers or herders, or perhaps some combination. Conflict between farmers and herders over water and land has been intensifying in Katsina and the northwest during Nigeria's coronavirus lockdown. Perhaps this particular episode was a farmer revenge attack on herdsmen, or vice versa? In Katsina, conflicts over water and land do not usually have a religious dimension; the populations is mostly Muslim, except for the minority that live in the Sabon Gari, or "strangers quarters," neighborhoods and towns. Hence there is less media attention than in the middle belt, where conflict often has an ethnic or religious dimension and grabs the attention of the mostly southern and mostly Christian media. Whatever the answers to these questions, the northwest seems to have become almost as insecure as the northeast, where Boko Haram has been active for a decade.
  • South Africa
    Amid COVID-19 Pandemic in South Africa, Zuma One Step Closer to Justice
    Easy to overlook among the COVID-19 headlines is a positive development involving the prosecution of former President Jacob Zuma. It has the potential for reaffirming, perhaps reanimating, South African commitment to the rule of law and trust in government, which flagged considerably during Zuma’s tenure. For the past decade, Zuma has fought charges and indictments related to his alleged acceptance of bribes, employing every means available to obstruct the judicial process. His final appeals have been rejected by the constitutional court, South Africa's highest, or withdrawn. Since the coming of "non-racial democracy," Zuma has been a leader in government, becoming deputy prime minister in 1999. Often involved in party infighting, he successfully engineered the resignation of then President Thabo Mbeki and his own election as president in 2009, in which position he served until his resignation in 2018. Throughout his government service, he has been dogged by criminal accusations, most notably rape (on which he was acquitted on a technicality) and accepting bribes as deputy president from a French company in conjunction with South African arms procurement. More generally, as president, he become the face of government corruption and "state capture." Nevertheless, he remains popular among the poor and his fellow Zulus, the largest ethnic group in the country, and continues to enjoy some support within the ANC. Of course, there is a reason that COVID-19 is dominating the headlines in South Africa. The country has the largest number of reported cases of the virus on the African continent, with over 5,600, but it also has the most developed public health sector of the larger African countries and has instituted the continent's most extensive testing regime, with over 200,000 tests conducted. Hence the presence of the disease is more readily measured in South Africa than elsewhere where testing is less widespread. President Cyril Ramaphosa, leader of the ruling African National Congress, has so far received high marks from international public health experts for his strict application of the COVID-19 control orthodoxy: social distancing, sheltering in place, and, in effect, the shutdown economic activity. Further, if belatedly, the government has increased the social allowances paid by the government, which nearly all poor South Africans receive, to help cope with the economic consequences of the lockdown. Though there are indications that the strategy is working, domestic criticism is mounting. There is the sense that many of Ramaphosa's regulations are excessive, such as his ban on the sale of tobacco and alcohol. The administration's public messaging has also been contradictory and confused. Most at issue, however, is the use of excessive force to enforce lockdown rules by the South African police. As of April 20, eight people have reportedly been killed as police and soldiers enforced the lockdown, and two hundred cases of police brutality have been recorded. Some of the actions have included the use of whips, rubber bullets, beatings, and the destruction of private property. At least some government officials have been reassuringly contrite upon news of security service brutality. “We hang our heads in shame,” said Defense Minister Nosiviwe Mapisa-Nqakula. “We will not at any point defend what has happened.” He said that investigations were underway. But other officials, have appeared less than sympathetic. Early on, the police minister apparently explicitly encouraged police to “not be nice to suspects,” and President Ramaphosa seems to have initially defended the excessive force in the interest of stopping the pandemic. Some human rights organizations have filed petitions in court concerning the rights violations. For all its faults, this is what sets South Africa apart from its peers on the continent: an independent, if imperfect, judicial system. Though such police brutality should not have occurred and those people should not been killed, there is a peaceful avenue toward accountability. Similarly, though Zuma’s comeuppance has long been delayed, he is now one step closer to it. He is scheduled to stand trial in June, depending on how soon South Africa’s society can return to a semblance of normal. While it is by no means certain that he will be convicted—the episode for which he will be tried occurred more than a decade ago, and evidence goes stale—the whole exercise is itself an achievement. His trial means that a former African chief of state will be forced to account for his alleged crimes by a court of law. This is good for African democracy and for the rule of law.