Aegis Trust

The leaked OSI report tells of a pattern: ignorance of their entry, toleration of their presence (and a welcome for some who were deemed valuable such as those involved in rocket design and research), followed eventually by quite vigorous official action. 

Alas, history tends to repeat itself. The pattern of immigration and occasional tolerance by the U.S. authorities was followed for suspected war criminals from modern-day conflicts - from Yugoslavia, Guatemala, El Salvador, Argentina, Rwanda and elsewhere.   

Nowadays U.S. immigration authorities are pursuing over 1000 cases.  Unlike the UK which has almost state of the art laws which are never used; the US has criminal laws which are full of holes - yet ICE and DOJ are effective in using prosecutions for visa fraud as an 'Al Capone' alternative.  (If you've ever wondered why, when flying into the U.S., you have to fill in that green visa card stating that you're not a Nazi, terrorist, or genocidaire - wonder no longer).  The answer for the U.S. is a crimes against humanity act, and reforms to the War Crimes Act to allow for an element of extra-territorial jurisdiction.  The answer for the UK is greater use of criminal prosecutions and less reliance solely on administrative processes on the suspects found here.

23 Sept 2010 - On 24 September Foreign Ministers will meet in New York to discuss the dangers of renewed conflict in Africa's largest country.  They have reason to be downbeat, because Sudan is complicated.

The plea of complexity is one reason Governments fail to prevent the world's worst atrocities, according the former UN Chief in Sudan, Dr Mukesh Kapila.  He should know.  Early in 2004, at the height of mass atrocities in Darfur, he sounded the alarm - which was met with a catalogue of excuses for inaction.

Political constitutionalism, broadly defined as the subjection of rulers to the rule of law, checks and balances and competing centres of power, took one step forward and two steps back this week.

Burning religious books for a political point should set off deafening alarms.  Pastor Terry Jones has declared he will burn copies of the Koran at the Dove World Outreach Center in Florida on 11 September, the anniversary of the terror attack on the New York World Trade Center in which over 3000 people were murdered in 2001.

Jones says he wants to ‘send a clear message to the radical element of Islam’ but his theologically flawed proposal is profoundly wrong on many levels.  Firstly, he has fundamentally failed to distinguish between Islam and the Islamists that the majority of Muslims do not relate to.  Secondly, his misguided actions will incite fear among his followers, leading to prejudice and then hatred against Islam and Muslims in general.

Burning religious books has far greater implications than being insulting and hurtful to the followers of that religion.   In 1821 a German philosopher and poet, Heinrich Heine, wrote in his play ‘Almansor’, in reference to the burning of the Koran during the Spanish Inquisition,“Where they burn books, so too in the end they will burn people”.  Because he was also a Jew, as well as German, Heine’s books were burned in Germany over 100 years later in 1933, along with other literature by Jewish authors.  Five years later again, in 1938, the Nazis burned Jewish holy books; in fact they burned nearly every synagogue to the ground in Germany.  Just over three years after that they were burning Jews in Auschwitz.  

The Polish-Jewish lawyer who coined the term genocide, Raphael Lemkin, went to great lengths to say how we should understand genocide not only as a crime in which a group of people are destroyed, but that it is a broader, longer, process in which the very foundations of the life of a particular group are attacked in order to eliminate them.  As such he said that the destruction of the culture or religion that identifies a group of people will precede their physical destruction. Book burning, then, is an expression of genocidal thought.  While Pastor Jones doesn’t have the capacity to follow through with genocide, his actions may be seen as an attack on the foundations of Islam by his Muslim audience. 

Thirdly, Jones is a danger to America and the Western world. Images of the burning Koran in America will be beamed around the Islamic world conveying that Americans are not engaged in a war on terror, but a war on Islam.  This image will ignite a rage in thousands of disaffected Muslims and drive many of them toward radical Islamist groups, who will say “we told you what these people in the West are really like”.  

Someone needs to tell the good people of Florida bluntly: Pastor Jones’ idea will be the strongest recruitment tool for Al Qaeda since the invasion of Iraq.  To the viewers around the world the pastor will represent America and Americans just as Americans often view terrorists as representing Muslims and the Muslim world.    

There are two ways to stop him.  In the first instance, the law:  If only a law existed to charge him with an act which cultivates terrorism against the American people, or even to charge him for being a blundering fool; but in lieu of those fantasy laws he should be arrested and charged with incitement to hatred.  However as it stands, those laws in the U.S. are weak.   Unlike in Europe where we have had experience of hate causing atrocities, Jones will take legal cover under the First Amendment of the U.S. Constitution, which leans heavily in favour of freedom of expression, even when a child can see the harm he is causing.

Secondly he could be blocked by overwhelming protest – not due to the opposition and anger of Muslims around the world.  Pastor Jones has said he is wearing a gun to protect himself on 9/11 from attacks by angry Muslims.  I hope instead he is met by outraged crowds of Christians who want an end to hate, veterans with the common sense to avoid a war on terror, Jews who know better than anyone where book-burning ends and anyone in the free world who cares about respect for other human beings or do not wish to ignite a greater outpouring of terror.

In the next few days we must see American leaders of all descriptions - whether political, religious, community or military  making it crystal clear to the Muslim world that Jones is as unrepresentative and unwelcome in the West as preachers of hate are in the Muslim world.

Dr James Smith

Chief Executive of the Aegis Trust

In our post-modern world you sometimes see people wearing t-shirts bearing a hammer-and-sickle or a portrait of Mao.  It would be nice to think they are being ironic, but safer to assume they are being ignorant of the crimes committed in utopia's name.

I have a friend from university who still describes himself as a Maoist.  On occasion I have raised the issue of Mao's crimes with him, in a po-faced sort of way.  I even had the bizarre experience of listening to him describe his amazement at finding himself going out with a girl who voted Conservative - as if modern British Conservatism is beyond the moral pale while Maoism is firmly within the bounds of acceptability.

I shall shortly be lending him Frank Dikötter's Mao's Great Famine. Dikötter has pulled off the rare feat of amassing vast swathes of previously unknown detail from provincial archives, while managing to maintaining mastership over both the book's narrative flow and the clarity of his prose.

The numbers are sadly numbing in their enormity.  He estimates that at least 45 million people died unnecessarily between 1958 and 1962.

To those unfamiliar with Sen's work 'famine' can seem a passive word, something to which the Gods subject human beings to at their whim.  Mao's Great Famine was an active, aggressive tool of political power.  Mao's personality was central (some have categorised Mao's behaviour to Borderline Personality Disorder - see Evil Genes: Why Rome Fell, Hitler Rose, Enron Failed, and My Sister Stole My Mother's Boyfriend by Barbara Oakley):  narcissistic, impulsive and Machiavellen, he responded to Khruschev's speech declaring the the USSR would leapfrog the USA's industrial production record, by declaring that Communist China would overtake the U.K.  Potential opponents at the top were humiliated into declaring loyalty to Mao, realistic cadres who doubted the efficacy of requiring villagers to melt down cooking pots to make into steel ingots were denounced as conservative rightists, and everyone stretched to assert their fealty to the centrally driven targets.  Harvests were neglected while peasants were press ganged into huge irrigation, dam building or other industrial projects.

The result was famine.

Mao's response was a glacial indifference to human suffering.  Worse, again taking their lead from the top, local cadres used violence as a tool to meet targets, destroy local opponents and assert their authority.  Food was used as a weapon, held back from 'rightist Conservatives'. Local cadres beat and killed active opponents, doubters and the innocent alike.   Dikötter estimates that, of the 45 million who died, 6 to 8 per cent were tortured to death or summarily killed: 2.5 million people.

The similarities to the famine in North Korea in the 1990s are unnerving: a lack of institutional checks and balances over a narcissistic and impulsive leader, coupled with an ideology that favours statistics over human well being, and a stubborn refusal to change course in the face of mounting evidence of failure.

I once visited China as a guest of a Government aligned NGO, partly to learn more about Japanese war crimes during the Second World War.  Towards the end of the visit, and with someone with whom I thought I had built some trust, I raised the issue of Mao and his crimes.  The response of my host was an embarassed silence.

Mao's portrait still adorns Tiannemen square, so his reticence is perhaps understandable. The beliefs of my Maoist friend are not. 

Our friends and partners at ND Burma have released this new report today on the arbitrary and excessive system of 'taxation' in Burma.

What does taxation have to do with mass atrocities?

At its best a tax system can cement the bonds between citizen and state.  The theory is that citizens demand accountability for the money they hand over to the state - demanding oversight and some form of democratic control.  A lack of such a bond between citizen and state can be profoundly damaging - witness the abuses committed by many oil rich states or (less commonly) states overly dependent upon development aid.  In such rentier states accountability and oversight is absent or, at best, owed to international donors.

The theory goes on:  pushy taxpayers creating checks and balances over the executive branch will have a spillover effect into other areas of governance.  Some of these effects may be important in preventing future mass atrocities: democratic oversight of the military; an end to winner takes all politics; and leaders more responsive to the demands of a broad taxpayer base.

That's roughly the theory; of course middle class taxpayers can be anti-democratic  also (witness Weimar Germany at one extreme, the Thai middle classes at the other).

And in Burma?  Well lets just say there's a thin line between pillage and taxation.  Many of the international crimes committed in Burma result from the requirement that the Tatmadaw be self-sufficient.  This order created the  incentives for individual units to resort to forced labour and pillage in order to live off the land.   Checkpoints, requirements to hand over foodstuffs, land confiscation all follow... As this excellent report says:  "the military has transformed taxation from a routine and legitimate function of government into extortion and a tool of repression."

Sweden has; the UK, France, Germany and Switzerland haven't.  The ICTR prosecutor would like to, the Appeals Chamber disagrees.  I'm referring of course to the transfer or extradition of Rwandan genocide suspects back to Rwanda to face trial.  Such proceedings have all been affected by concerns about the fairness of any trial.  

Not touching on fair trial issues, the ICLS have published a very useful note on Rwanda's Transfer Law - of interest to any lawyer or diplomat considering the nuts and bolts of transfer and extradition.

In 2008, many Sierra Leonean villagers journeyed to The Netherlands to tell their stories in the trial of Charles Taylor. One of them, Sia Komba, spoke of how she watched as rebel forces killed her family and then compelled her to carry a bag containing the heads of her children. Another, Patrick Sherriff, witnessed the terror inflicted on his brother whose 10 fingers were cut off with a knife before he was murdered.

Xue Hanqin has just been elected to the International Court of Justice.  You can find some glimpses of her views in a 2006 article: vaguely supportive of the ICC, not a fan of universal jurisdiction.  Relevant section on UJ below:

 At the moment, one of the most controversial issues with international criminal law is the question of universal jurisdiction. Under traditional international law, states establish universal jurisdiction over certain international crimes by treaty terms except for one case, piracy. In other words, regardless of general jurisdictional grounds on territory, nationality, protection and so on, states establish national criminal jurisdiction over certain offences simply by the physical presence of the alleged suspect. In exercising such criminal jurisdiction, not only judicial assistance is assured between the state parties under the relevant treaty, rules of sovereign immunity are also respected under general international law. The early conventions on human rights are vague on the point, but state practice and international court decisions support this position. In the Pinochet case, although the British House of Lords declined to embrace one Lord's opinion grounding extradition on international custom regarding universal jurisdiction, its ruling did affect the doctrine of Act of State as practiced in the past. By pronouncing what constitutes or does not constitute an act of state of another state, or by national legislation to establish absolute universal jurisdiction, national courts would likely exercise jurisdiction over cases that may lead to international disputes by unduly encroaching upon the domestic affairs of other states. So far state practice shows over-extended national jurisdiction, either civil or criminal, is not conducive to promoting international efforts in suppressing international crimes, nor to maintaining international peace and stability.

HT: Julian Ku at Opinio Juris 

 

The Irish Centre for Human Rights has just released an extensive report on the Rohingya people of Burma:  Crimes Against Humanity in Western Burma:  The Situation of of the Rohingyas.  The Rohingya are a Muslim minority group resident in North Arakan state in Western Burma.  The report finds that there is a prima facie case that crimes  against humanity have been committed against them, namely forced labour, deportation and forcible transfer, rape and sexual violence, and persecution.