How to Put International Justice Out of Business

The ICC’s docket points to a serious problem -- but not the one that African leaders are complaining about.

This weekend, officials from 34 African nations are convening in Addis Ababa to discuss whether or not to withdraw from the International Criminal Court (ICC). The problem with the Hague-based court, according to African Union (AU) Chairperson Hailemariam Desalegn, is that it is "race-hunting" Africans.

It is true that the 32 people charged by the court to date are all from the African continent. But the problem this reflects is not racism by the ICC chief prosecutor. (Currently, the prosecutor is Fatou Bensouda of The Gambia who has faced her fair share of criticism from fellow Africans for the composition of the court's caseload.) Rather, there is a more systemic driver behind the court's docket:  the debilitated state of the judiciary in so many African nations.

The ICC was created by states, including many in Africa, which wanted to ensure that, when the worst crimes in the world -- genocide, crimes against humanity, war crimes -- were committed, there would be a backstop against impunity. The vision was for a court of last resort, ready to step in when states failed to prosecute those responsible for a future Holocaust, Rwanda, or Srebrenica. This idea was enshrined in the ICC's statute under the legal principle of complementarity, meaning that the court can only prosecute when states themselves are unable or unwilling to do so.

In other words, in an ideal world, the ICC wouldn't exist. States would handle their own cases fully and fairly. As former U.N. Secretary General Kofi Annan said earlier this week, "If African victims can get justice at home, and we have credible courts and they do take action, there'll be no need for [the] ICC."

However, this remains only wishful thinking. And so, whether African leaders want to admit it or not, a court of last resort is exactly the part the ICC is playing.

Consider, as an example, the ongoing trial of Kenyan Deputy President William Ruto for his alleged role in the mass violence that followed Kenya's 2007 election. Kenya was given every opportunity to prosecute those responsible for the violence that left over 1,000 dead and an estimated 600,000 displaced. A 2008 commission, headed by Kenyan Appeals Court Judge Philip Waki, recommended that the government establish a special tribunal to handle the most important cases. The so-called Waki Report also advised that, if a special tribunal was not created, the situation should be referred to the ICC.

After initially accepting the report's recommendation, the Kenyan government stalled -- and then stalled some more -- before eventually rejecting the establishment of a tribunal. Thus, it was only in the face of the Kenyan government's unwillingness to seek domestic accountability for the violence against its own citizens that the ICC finally stepped in. (In addition to Ruto, the court is set to try President Uhuru Kenyatta in November; on Thursday, Kenyatta requested that the trial be held via video link.)

The remaining seven countries in which the ICC is involved -- through investigations, indictments, or ongoing trials -- present different manifestations of the same problem. The governments of Uganda, the Democratic Republic of the Congo (DRC), Central African Republic, Côte d'Ivoire, and Mali all asked for the ICC's involvement, responding to the court's overtures to prosecute crimes that the countries themselves were unwilling or unable to pursue. The U.N. Security Council, meanwhile, requested the court's involvement in Sudan and Libya, where genuine domestic accountability for the victims of mass atrocities was nowhere to be seen. (A Libyan court is currently trying Saif al-Qaddafi in the town of Zintan, amid concerns about its fitness and Qaddafi's civil rights.)

A more detailed snapshot of the justice deficit in these countries helps illustrate further why the ICC is necessary. The World Justice Project's 2012-2013 Rule of Law Index places Sub-Saharan Africa at the bottom of its global list. A recent report on the rule of law in the DRC explains that, with "near-humiliating working conditions... [c]orruption, bribery and denial of justice are common practices within the judiciary." In scores of interviews I have conducted with Darfuri survivors of atrocities either perpetrated or facilitated by the Sudanese government, after the basic necessities of safety, food, and shelter, their demands are for justice. But they don't believe it can come from the Sudanese judiciary while the current government of ICC indictee Omar al-Bashir remains in power.

ICC Chief Prosecutor Bensouda may have put it best: "What offends me the most when I hear criticisms about this so-called Africa bias," she said in an interview last year, "is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes." This week, over 160 international groups and civil society organizations across Africa have sought to give voice to those anonymous people with a letter to African foreign ministers, urging them not to withdraw from the ICC. "As organizations working within Africa, some on behalf of or alongside victims of international crimes, we see every day the importance of ensuring access to justice," the letter states.

Justice, however, is not something that survivors of atrocities should have to travel to a foreign land to access.

The court's all-African line-up is not an ICC problem; it is an African problem, for which there is an African solution. That solution -- doing the hard work of strengthening of domestic accountability mechanisms in nations across the continent -- is what African leaders should be discussing this weekend. Unfortunately, they will instead rail against, and possibly abandon, the only recourse for justice that African victims of major international crimes currently have.  



Al Qaeda's Syrian Strategy

Can Islamic jihadists win hearts and minds in the war against Assad?

Al Qaeda is storming across northern Syria. Last month, the al Qaeda affiliate the Islamic State of Iraq and al-Sham (ISIS) captured the city of al-Bab in the northern province of Aleppo from a rival rebel militia. The capture of the city, one of the largest in the region, gives ISIS control over a key transit point linking Aleppo to its strongholds to the east. And that's just the latest in a long string of ISIS's military successes: After brief clashes with outgunned rebel opponents, ISIS took the towns of Azaz and Jarablus, which straddle Syria's border with Turkey.

To commemorate its victories, the first thing ISIS did in these places was hang its black flag from the top of the highest building. After that, it began to gradually impose its strict interpretation of Islamic law.

ISIS has embarked on al Qaeda's most comprehensive campaign yet to win Arab hearts and minds by providing social services to a war-ravaged society. But though the organization's star is ascendant, its abuses, coupled with an international strategy to limit its influence, could still torpedo its plan to transform northern Syria into an Islamic emirate under its command.

ISIS is thought to count 5,000 to 6,000 fighters within its ranks. That means it's a lot smaller than other rebel groups, such as the hard-line Salafi Syrian Islamic Front, which boasts 15,000 to 20,000 fighters. But ISIS has one important advantage: Many of its members have previously fought in other jihads, including in Iraq, Afghanistan, Yemen, and Libya.

Nowhere is ISIS stronger than in the northern province of Raqqa. It controls the governorate's capital, Raqqa city, whose prewar population of approximately 277,300 residents has mushroomed due to an influx of displaced persons from other regions. Meanwhile, the brigades affiliated with the Free Syrian Army (FSA) are focused on squabbling among themselves. As a result, no FSA unit is strong enough to challenge the group in Raqqa, making it the largest city al Qaeda has ever controlled in the Islamic world.

ISIS has exploited its grip on the region to supply the provincial capital with the commodities essential to function. It provides most of the wheat for the city's bread factories, trucking the grain in from its silos in the northern parts of the province on the border with Turkey. It also delivers the majority of the city's oil needs, drawing on rebel-controlled wells in eastern Syria.

ISIS is doing far more than keeping the lights on. It runs a court with a mix of judges and religious scholars that draws on a strict interpretation of Islamic law. It adjudicates cases ranging from theft to financial malfeasance. According to Raqqan politicians and residents, in one ruling this summer the court ordered that a house confiscated by a rebel brigade be returned to its owner. It also provides abandoned houses to those whose living quarters were destroyed by regime bombings.

ISIS's Raqqa Outreach Bureau, meanwhile, is trying to educate residents in what it considers the proper teachings of Islam. Raqqan politicians and residents say that the organization distributes pocket Qurans and flash drives with jihadi chants and videos showing the group's military operations. Some of the leaflets that ISIS circulates include: "The Prohibition of Democracy," "The Virtue of Jihad Over Remaining Silent," and "Excommunicating the Alawites" -- the latter a reference to the heterodox minority sect to which President Bashar al-Assad's clan belongs. Nor has ISIS just restricted its attention to adults: It recently opened a children's school in a city where the education system ceased functioning long ago.

By providing such services, ISIS seeks to prove that al Qaeda can make positive contributions and build institutions to serve society. Unlike in Iraq, the organization has produced dozens of videos highlighting this outreach. In doing so, the group hopes to illustrate that it has learned the lessons of its failures in the last decade, when Iraqi Sunnis rebelled against al Qaeda's brutal ways. "As for our mistakes, we do not deny them," ISIS spokesman Abu Muhammad al-Adnani al-Shami noted in a July 30 audio release. "Rather, we will continue to make mistakes as long as we are humans. God forbid that we commit mistakes deliberately."

Despite these efforts, however, ISIS has proved unable to avoid the mistakes that have caused it to lose support in countries such as Mali and Yemen. The al Qaeda affiliate continues to persecute anti-Assad activists who don't agree with its hard-line Islamic vision -- the incarceration of Father Paolo Dall'Oglio, an outspoken regime critic, has particularly angered Raqqans, according to residents of the city.

In other areas of northern Syria, the horror stories have been even worse. In Aleppo province, ISIS imprisoned a 14-year-old girl in dungeon-like conditions for use in a prisoner exchange, according to a fellow inmate. As a consequence of ISIS's growing strength, many journalists have been kidnapped -- and many more have opted to stay out of Syria.

Although ISIS claims to be a model of ethical governance, its members have also engaged in criminal behavior. One of its foreign fighters was killed by the FSA after he reportedly sexually molested several children in the northern city of al-Dana, according to residents there. In the city of Tel Abyad in Raqqa province, ISIS stole food baskets that the Syrian National Coalition's Assistance Coordination Unit prepared for struggling civilians because the organization did not coordinate the baskets' delivery with ISIS.

Abuses such as these have drawn the ire of Syrians and represent an opportunity to drive a wedge between ISIS and a society that merely wants to survive a war -- not adhere to al Qaeda's severe strictures. Some Syrians have taken to the street to protest against ISIS, as they once did against the Assad regime: The largest demonstrations have been in Raqqa, where protesters have gathered in front of ISIS headquarters since mid-June, calling for the group to leave the city.

To defeat ISIS, Washington and its partners need to cultivate local allies calling for al Qaeda's ouster. One option is to support a "tribal awakening" similar to the movement that helped subdue al Qaeda in Iraq by 2009 -- turning the tribal networks that are strong in eastern Syria against the terrorist network. It wouldn't be the first time someone co-opted the tribes: During Syria's 2007 parliamentary elections, the Assad regime was forced to placate rioting clans in Raqqa by offering them seats in the legislature.

Tribal sheikhs hold considerable authority and are respected as mediators of disputes. And some are vocal supporters of the revolution: Bashir al-Huwaydi and Mahmud al-Khabur from the Afadla tribe, the largest clan in Raqqa, are among them. Nawaf al-Bashir from the Baqqara tribe, which holds sway in the provinces of Deir al-Zour and Hasaka, has long been a regime critic. He signed the 2005 Damascus Declaration, an opposition document calling for more political freedoms, and was jailed in 2012. Men such as these are well positioned to create brigades that can take on ISIS.

Most sheikhs -- fearful of the direction the revolution would take and unsure if it would ever succeed -- chose to remain neutral at the beginning of the revolution. Others, such as Huwaydi's brother Muhammad, the paramount leader of the Afadla, have backed the regime. As a result of their refusal to back the revolution, sheikhs saw their stature fall in the eyes of their respective tribes.

Today, these tribal leaders must be rehabilitated if they are to serve as effective proponents of the revolution. Supplanting the services ISIS provides -- for example, by creating a legal system -- could also help. By offering an alternative to ISIS's draconian courts, the opposition can win over those who view the organization as providing a modicum of order among chaos.

Any effort to provide services in ISIS-controlled areas will need the protection of rebel forces. ISIS will no doubt view the project as a challenge to its authority and try to hijack this process. And as ISIS consolidates its grip on Raqqa, it is increasingly squeezing FSA units: Recently, the Thuwar Raqqa Brigade, the most powerful FSA unit in the region, pledged allegiance to al Qaeda's other Syrian affiliate, Jabhat al-Nusra. Thuwar Raqqa does not subscribe to the jihadi group's ideology, but agreed to the merger for fear that if it did not, it would be crushed.

Washington needs to support rebel groups to ensure that institution-building projects can prosper. The State Department's Bureau of Conflict and Stabilization Operations works on these projects, but it shuns the FSA units that are a vital element to success. Without groups to protect civilian actors, they can become targets -- ISIS has singled out Western-backed Syrians for intimidation, incarceration, and some say even assassination.

Beyond services, Raqqans merely want their salaries paid. Roughly 35 percent of the Syrian workforce is employed by the state: Raqqan civil servants have rioted against the rebels, demanding to be paid. The Assad regime has seen an opening in this tension, stepping in to pay salaries and thereby stoking the population's opposition to the rebels. In September, the regime paid teachers in Raqqa for the first time in several months. Workers at the Tabqa Dam, which is 25 miles upstream from Raqqa city and surrounded by ISIS, have received government remuneration as well. By adequately funding Raqqa's city council, Washington can help the mainstream opposition win support away from both the regime and ISIS.

Al Qaeda's growing momentum is a threat to both the United States and Syrians themselves. But it is still possible to reverse its gains -- if only Washington and those who still hold true to the original spirit of the Syrian revolution work together.