Kenyatta Becomes First ICC Indictee to Address the UN Security Council

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Sept. 24, 2013 – Kenya’s President Uhuru Kenyatta became the first International Criminal Court indictee to address the Security Council when on Wednesday he spoke at US President Barack Obama’s summit meeting on foreign terrorist fighters.

In one sense, his presence was fitting. Kenya has suffered more than most countries as a result of foreign terrorist fighters. Kenyatta cancelled his visit to last year’s high-level segment of the General Assembly because of the Westgate Mall terrorist attack which killed 67 people. The anniversary of the attack was on Sunday.

Al-Shabab militants claimed responsibility for the assault on the mall saying it was retribution for Kenya’s troop presence in Somalia, where the group has its home base.

But Kenyatta’s presence in the chamber where decisions on upholding international peace and security are made is also troubling. He was indicted on five counts of crimes against humanity over the post-election violence in 2007-08 that killed more than 1,100 people.

In November last year, the Council rejected a resolution that would have delayed the start of his trial when a draft text pressed by the African Union failed to garner enough votes. Seven Security Council members voted for the draft resolution while the eight others abstained.

After the November 2013 Security Council vote, US Ambassador Samantha Power, explaining her abstention, said: “The families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence. We believe that justice for the victims of that violence is critical to the country’s long-term peace and security. It is incumbent on us all to support accountability for those responsible for crimes against humanity.”

As it stands, the trial is in danger of collapsing. On Sept. 5, the Office of the Prosecutor of the ICC filed a notice to the court stating that it will “not be in a position to proceed” with the trial against Kenyatta which was scheduled to start on Oct. 7.

The prosecution said an adjournment is required because it does not have the evidence available to prove Kenyatta’s alleged criminal conduct beyond a reasonable doubt but added that it would be “inappropriate” to withdraw the charges completely as the Government of Kenya has not complied with the Court’s requests.

On Friday Sept. 19, he was ordered to appear before the tribunal on Oct. 8 where judges want to question him over claims that his government has withheld documents.

Kenyatta repeatedly argues that he needs to remain in Kenya to fight al-Shabab and attend to state business.

He denies organizing the ethnic massacres after the 2007 election.

- Denis Fitzgerald
On Twitter @denisfitz

Image: ICC website.

US Invokes Article 51: Does the UN Charter Cover Attacks by Non-State Actors?

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Sept. 23, 2014 – US envoy Samantha Power has cited Article 51 of the UN Charter as cover for the airstrikes the United States carried out inside Syria overnight Monday against ISIS and the Khorasan unit of the Nusra Front.

Power wrote to Ban Ki-moon Tuesday saying, “States must be able to defend themselves … when, as is the case here, the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”

Power’s letter also cites Iraq’s letter to the Security Council of Sept. 20 warning that the country “is facing a serious threat of continuous attacks coming out of ISIL safe havens in Syria.” It adds that the Iraqi government has requested the US lead “international efforts to strike ISIL sites and military strongholds in Syria.”

The UN Charter prohibits the use of force by a state against another state unless authorized by a Security Council resolution. But Article 51 provides an exception: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”

The UN Charter is concerned with inter-state conflict as only states can become members of the UN so the applicability of Article 51 for use of force inside a sovereign country against a non-state actor is a question that international law scholars have grappled with.

Marko Milanovic argues that Article 51 does not require the attribution of the armed attack by a non-state actor to a state. “Rather, for the attacked state to respond against the non-state actor which is operating in another state, the conduct of this latter state must be such to justify the ensuing violation of its sovereignty.”

He proposes three scenarios that would justify an attack inside a sovereign state against a non-state actor:

“(a) the territorial state was complicit or was actively supporting the non-state actor in its armed attack; (b) the territorial state failed to exercise due diligence, i.e. it did not do all that it could reasonably have done to prevent the non-state actor from using its territory to mount an armed attack against another state, or is not doing all it can to prevent further attacks; (c) the territorial state may have exercised due diligence, but it was nonetheless unable to prevent the attack, or to prevent further attacks.”

And the due diligence case would appear to be the US argument when Power writes that “the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”

Ban Ki-moon earlier on Tuesday spoke of the US airstrikes, saying that “today’s strikes were not carried out at the direct request of the Syrian Government, but I note that the Government was informed beforehand.”

“I also note that the strikes took place in areas no longer under the effective control of that Government.   I think it is undeniable – and the subject of broad international consensus – that these extremist groups pose an immediate threat to international peace and security,” Ban said.

For more discussion on Article 51 and non-state actors see here and here.

- Denis Fitzgerald
On Twitter @denisfitz

Image: Wikimedia

UN Syria Investigators Release Gruesome Witness Testimony

Paulo Pinheiro, Chairman of the UN Independent Commission of Inquiry on Syria

Paulo Pinheiro, Chairman of the UN Independent Commission of Inquiry on Syria

Sept. 16, 2014 – Grave violations by all sides to the conflict in Syria were detailed in witness testimony released in Geneva Tuesday by the UN Commission of Inquiry on Syria.

These include attacks by government forces using barrel bombs filled with chlorine, executions and amputations by ISIS, enforced disappearance, and depraved detention facilities.

The 12 witness statements, out of a total of some 3,200 that the inquiry has collected, “demonstrate that few Syrians have been spared,” the investigators wrote in their introduction to the report of testimonies.

They said that “many of the victims interviewed remained hopeful that their stories can prompt the action and dialogue needed to bring this conflict to an end.”

The full report is here.

- Denis Fitzgerald
On Twitter @denisfitz

Scottish Independence Could Trigger Security Council Reform


Sept. 7, 2013 – A Yes vote in the Sept. 18th Scottish independence referendum could lead to the UK losing its permanent Security Council seat and trigger wider reform of the 15-nation body.

There is precedent in favor of such a scenario not happening. Following the breakup of the USSR in 1991, Russia notified the UN that it would assume the USSR permanent seat in the Council and the 11 former Soviet republics also wrote in favor of Russia taking the USSR seat. That was before calls for Security Council reform began in earnest, in the mid-1990s.

And since the end of the Cold War, clamor for reform has grown - most recently because of the failure of the 15-nation body to act on the situation in Syria.

Privately, non-permanent members of the Council have complained they are locked out of decision making by the P5, and in the wider UN membership there is a push for more transparency and accountability from the Council.

By what current logic should Europe possess two of the five permanent veto-wielding seats on the Security Council is also increasingly asked while Africa and Latin America have none.

An independent Scotland and EU member states may support a downsized UK – which would presumably have a new name – holding on to the old UK seat, but countries that aspire to a permanent seat – such as Argentina, Brazil, India, Mexico, Nigeria, Turkey and South Africa – could see a Scottish Yes vote as an opportunity to change the status quo in an outdated UN.

This year’s high-level segment of the General Assembly opens on Sept. 22nd, four days after the Scottish poll, and if speeches from recent years are an indication there will be more calls for reform of the Security Council, and the result of the Sept. 18 referendum may give those calls more legs.

Moreover, the UN charter is in dire need of reform. It still refers to Germany, Japan and Italy as enemy states and despite the succession of Russia to the USSR seat the charter still refers to the USSR, as well as the Republic of China, as holders of two of the permanent five seats.

But any change to the charter requires the consent of the P5 and they are united in upholding the status quo to hold on to their veto power and not open up the can of worms that could lead to the much needed reform the UN requires to reflect the world as it is today.

An independent Scotland would have to apply for membership of the UN, which should be an uncomplicated process.

 - Denis Fitzgerald
On Twitter @denisfitz

Council to Meet on UNDOF Sept. 18

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Sept. 3 – The Security Council will receive Ban Ki-moon’s latest report on the UNDOF mission in the Golan Heights on Sept. 12 and is set to meet with peacekeeping chief Herve Ladsous over the future of the mission six days later.

Forty-five Fijian UNDOF peacekeepers taken hostage last week by Al Nusra remain in captivity.

Ladsous spoke to reporters at UN headquarters in New York on Wednesday and backed UNDOF force commander Iqbal Singh Singha amid reports that he ordered a Filipino contingent to hand over their weapons to the Al Nusra militants holding the Fijian troops.

He said the Filipino troops were told to “keep their weapons quiet” but not to surrender them.

He added that the Dept. of Peacekeeping Operations is looking at “the way the force is configured.”

The Philippines announced in August that it is withdrawing its troops from UNDOF at the end of September citing security concerns (it is also withdrawing its troops from UNMIL in Liberia over the Ebola outbreak).

Ireland’s Defence Minister Simon Coveney told Morning Ireland on Monday that the Irish government would seek a review of the mission before deciding whether to send new troops when the current contingent end their tour of duty at the end of September.

Ban Ki-moon recommended over a year ago that the force’s self-defense capabilities be enhanced. While the force has received more robust armor, it is understood that both the UN Secretariat and troop contributing countries believe the Security Council has not done enough to ensure UNDOF has the defensive equipment it needs.

Irish troops, along with the Fijian contingent, were deployed after Japanese, Croatian and Austrian troops withdrew last year because of the security situation. Austria had been the longest serving contributor to the mission, having joined UNDOF when it was formed in 1974 to observe the ceasefire agreement between Syria and Israel following the end of the 1973 war.

The Council also increased the size of the force in June last year by about 300 troops. It’s current configuation has over 1,200 troops from six countries.

Ladsous said on Wednesday that in addition to Al Nusrah there are about six or seven other armed opposition groups operating in the area of separation.

In Ban Ki-moon’s report to the Council in June this year, he outlined a number of incidents in which the security of UNDOF troops was threatened. As a result of the security situation, Ban is required to report on UNDOF every three months instead of the usual six.

In his June 2014 report, Ban wrote that armed opposition groups were tailing UNDOF patrols, presumably as protection from Syrian government forces, that two peacekeepers were injured by a tank round on July 7, and that another patrol witnessed members of an armed group walking past its post with a severed head.

- Denis Fitzgerald
On Twitter @denisfitz

One Person Killed Every Seven Minutes as Syria Death Toll Nears 200,000

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Aug. 22, 2014 – At least 191,369 people were killed in the Syria conflict from March 2011 to April 2014, according to a new report commissioned by the UN Office of the High Commissioner for Human Rights.

That corresponds to about eight people killed every hour for the 1,095 days covered in the report or one person every seven minutes.

The report is the first update from the UN since June last year when it reported that at least 92,901 people had been killed between March 2011 and April 2013. The latest study says that was an undercount and new data has recorded 116,046 deaths in the first two years as a result of the conflict.

The research for the OHCHR was conducted by the Human Rights Data Analysis Group using five sources: 1. the Syrian Government 2. the Syrian Center for Statistics and Research 3. the Syrian Network for Human Rights 4. the Syrian Observatory for Human Rights 5. the Violations Documentation Centre.

“The total 191 369 can be understood as a minimum bound of the number of killings between March 2011 and April 2014,” the report states.

85.1 percent are male victims, 9.3 percent are female victims, and 5.6 percent of records do not indicate the sex of the victim.

“The majority of records (83.8 percent) lack information about the age of victims, which makes it impossible to draw conclusions about the distribution of violence over age categories,” the report says. “Of the records that do include age information, 2,165 indicate victims 0-9 years old, and 6,638 victims 10-18 years old.”

The highest number of documented killings was recorded in the Governorate of Rural Damascus (39,393), next highest was Aleppo (31,932), Homs (28,186), Idlib (20,040), Daraa (18,539) and Hama (14,690).

In a statement accompanying the release of the report, UN human rights commissioner Navi Pillay lambasted the Security Council for its failure to hold accountable the perpetrators.

“The killers, destroyers and torturers in Syria have been empowered and emboldened by the international paralysis,” she said. “There are serious allegations that war crimes and crimes against humanity have been committed time and time again with total impunity, yet the Security Council has failed to refer the case of Syria to the International Criminal Court, where it clearly belongs.”

- Denis Fitzgerald
On Twitter @denisfitz

Photo/ICRC

Pillay Pitches Stronger Security Council Role for Successor

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Aug. 21, 2014, Outgoing UN human rights commissioner, Navi Pillay, on Thursday suggested her successor provide informal monthly briefings to the Security Council to avert future crises.

Pillay’s pitch came after she scolded the 15-nation body over its inaction on crises during her tenure such as Syria, Gaza, Sri Lanka and Iraq. “I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives,” she said in her final address to the Council.

The South African jurist was appointed in 2008 for a four-year term but fell foul of the US over her criticism of Israel and was only given a two-year second term.

The Council tends to act when a humanitarian situation arises out of conflict but Pillay stressed that human rights abuses are evident for years, even decades, before a major crisis erupts and the Council must must do more to prevent, rather than react to, conflicts.

Pillay also said Ban Ki-moon can do more in providing early warning to the Council on emerging crises. Ban launched the Rights Up Front plan last year in response to the UN’s “systematic failure” in responding to the final months of the 2009 war in Sri Lanka.  The plan’s aim is to prevent human rights abuses by acting on early warnings of human rights abuses.

“Within Rights Up Front, the Secretary-General can be even more proactive in alerting to potential crises, including situations that are not formally on the Council’s agenda,” she said.

Article 99 of the UN Charter empowers the secretary-general to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”

The human rights chief, who will be succeeded by Jordan’s outgoing UN envoy, Prince Zeid, also suggested the Council build on the new Arms Trade Treaty, “which requires arms exporters and importers to confirm that weapons will not be used to commit violations.”

“Where there are concerns about human rights in States that purchase arms, one condition of sale would be that they accept a small human rights monitoring team, with deployment funded by the Treaty’s Trust Fund,” she said.

The five permanent members of the Security Council are among the six biggest arms sellers in the world.

Prince Zeid assumes the role of high commissioner for human rights on Sept. 1. He has been succeeded as UN envoy by Dina Kavar, who becomes the sixth female ambassador to currently serve on the Council.

- Denis Fitzgerald 
On Twitter @denisfitz

 

Image/UN Photo

Secret Cables Reveal Intrigue and Inner Workings of UN

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Aug 13, 2014 – Ban Ki-moon was privately “sympathetic to Israel’s position” when it invaded Gaza in 2008 but knew that publicly he would be “forced to shore up his image in the Arab world” and on the diplomatic front he was “worried about the Europeans seizing the initiative at the expense of the US.”

Those revelations are in one of the diplomatic cables from the US mission to the United Nations released by Wikileaks. The tranche of cables begin just prior to Susan Rice becoming US envoy.

A number of the cables recount Rice’s introductory meetings with UN officials and fellow diplomats.

In her meeting with France’s then envoy, Maurice Ripert, she is told that Paris will always consult with the US before taking any initiative in the Security Council. He also tells her that reforming the Council has to be a priority and that the “U.S. calls for Security Council reform to be directly linked to the reform of other parts of the UN, had been perceived as a containment strategy.” On a separate matter, another cable reveals that France’s representative had “described as ‘almost harassment’ the frequency with which its Perm Rep’s chauffeur has been receiving tickets while picking up the Ambassador from his residence.” 

Returning to Security Council reform, in her meeting with Japan’s envoy, Yukio Takasu, Rice told him that the “Administration agrees the Council does not currently reflect global realities and needs to adapt for its own viability and legitimacy. She added that one change in this Administration is that there is no need to link Security Council reform directly to overall UN reform.”

Rice met with Israel’s then envoy, Gabriela Shalev, the same day, Jan, 30, 2009, and was told by Shalev, “speaking confidentially,” on the discussions leading up to the adoption of Resolution 1860 that called for a ceasefire and withdrawal of Israeli forces from Gaza “that the Israeli delegation’s experience was that the UK and France were not trustworthy and that the U.S. was a more helpful and honest friend of Israel.”

In other meetings, Rice reports that both the Austrian and Mexican delegations – both Council members in 2009 – lamented that Resolution 1860 failed to call for respect for International Humanitarian Law, which governs the conduct of war and grave breaches of its rules constitute war crimes that can be prosecuted by the International Criminal Court. During a closed-door Council meeting with Ban Ki-moon, Austria’s representative “welcomed the Secretary-General’s statements on international humanitarian law but pressed the Secretary-General to be more explicit in his meetings on the need for its respect.”

Rice was told by then UN aid chief John Holmes that “the crossings into Gaza are a crucial matter…If dual-use goods like cement can’t get in (none has gotten in for the last 18 months), we’ll get nowhere, said Holmes. The United States needs to put pressure on Israel to open the crossings and especially to allow in building materials,” he told Rice.

Holmes later wrote a book about his time heading humanitarian operations for the UN in which he was critical of both the secretary-general and the Security Council.

In a Feb. ’09 meeting with then UNGA president Miguel d’Escoto Brockmann, Rice was told by d’Escoto that he had been approached to act as a conduit for Hamas to key players and he said he had been provided with contact information by Ramsey Clark for Hamas sources in Jordan and Lebanon. D’Escoto “listened intently to the Ambassador’s arguments against that,” the cable states, with Rice “reminding d’Escoto that the UN is a member of the Quartet and has set pre-conditions for dealing with Hamas, and that the PGA is a representative of the UN.”

Libya’s UN ambassador Mohamed Shalgham, who defected in 2011, informed Rice in March ’09 that then leader Muammar Gaddafi would be attending that year’s UN General Debate and “also plans to visit Washington to meet with President Obama for one to two hours.” Rice responded “that, typically, the President would issue an invitation to a head of state, requesting a visit to Washington.”

A May 4, 2009 cable reveals US anxiety about a forthcoming UN Board of Inquiry report into death and damage to United Nations personnel and facilities in Gaza following Israel’s earlier bombardment. Rice spoke with Ban and she reported that “the Secretary-General said his staff was working with an Israeli delegation on the text of the cover letter” that would accompany Ban’s public summary of the 184-page report that has never been released. “Ambassador Rice asked the Secretary-General to be back in touch with her before the letter and summary are released to the Council.”

“Ambassador Rice spoke with the Secretary-General two additional times. In the second conversation, she underscored the importance of having a strong cover letter that made clear that no further action was needed and would close out this issue. Secretary-General Ban called her after the letter had been finalized to report that he believed they had arrived at a satisfactory cover letter.”

In a follow-up cable on possible outcomes from the Board of Inquiry, Rice stated that “we cannot be assured of blocking procedurally a Council discussion but can block any product (either by withholding consensus on a PRST or Press statement, or vetoing a resolution).” She said the US was unlikely to get the support it needed from six of the 15 Council members to block a discussion.

In a later cable, Rice reports that the Council had come to an agreement that Ban should maintain the lead on any follow-up action on the report which found the Israeli government responsible for the deaths, injuries, and physical damage that occurred in seven of the nine cases it examined.

Israel later paid compensation to the UN for damage to its property but there was no compensation for the victims. The UN said the the financial issues relating to the attacks examined by the investigation were “concluded” and there was no criminal investigation into the deaths of UN employees.

On Tuesday, Ban, speaking about Israel’s current invasion of Gaza, told reporters that “Israel’s duty to protect its citizens from rocket attacks by Hamas and other threats is beyond question.”

“At the same time, the fighting has raised serious questions about Israel’s respect for the principles of distinction and proportionality. Reports of militant activity does not justify jeopardizing the lives and safety of many thousands of innocent civilians.”

“I have called for an investigation into the repeated shelling of UN facilities harboring civilians,” Ban said, though an investigation has yet to be launched.

“I expect accountability for the innocent lives lost and the damage incurred,” he said.

The coming weeks and months will tell if Ban intends to follow through on his call for accountability.

- Denis Fitzgerald
On Twitter @denisfitz

UN: Drought An Underlooked Catalyst for Syria Revolt

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July 26, 2014 – A five-year drought that impoverished large parts of rural Syria led to anger and a growing sense of inequality that were catalysts for the March 2011 uprising, according to the recently released 2014 Human Development Report.

The ensuing civil-war has claimed more than 150,000 lives, including at least 1,700 in the past ten days. The UNDP report, released on Thursday, says the drought devastated millions of livelihoods in the agricultural sector, which was already suffering because of government neglect.

“The role of drought in contributing to the  Syrian crisis is less well known. From 2006 to 2010 the Syrian Arab Republic suffered an unprecedented drought, devastating much of its rural society. Impoverished farmers flooded into the slums of the cities,” the report states. “Observers estimate that 2–3  million of the country’s 10 million rural inhabitants were reduced to extreme poverty. These deprivations, combined with a lack of jobs and an inadequate state and international response, contributed to a rapid buildup of resentment and an acute awareness of group inequality, fertile ground for the civil war that started in 2011.”

The theme of this year’s Human Development Report is resilience and looks at the effects on human security caused by climate change and economic crisis with a particular focus on groups that are vulnerable because of their history and unequal treatment by the rest of society – in Syria’s case, its rural population.

The report also says that humanitarian appeals, while providing necessary immediate aid, do not address climate change as an underlying driver in crises such as in the Sahel and in Syria.

It adds that the current system of global security governance, designed post-WWII to prevent conflict between the great powers, is inadequate in dealing with today’s crises.

“The turn from interstate conflict to internal conflict has changed the focus of conflict prevention and recovery,” the report says. “The resulting governance gap limits international capacity to address pressing security issues, passing the burden to the population in conflict settings.”

- Denis Fitzgerald
On Twitter @denisfitz

Image/WFP

UNSC Draft on Gaza Invokes International Humanitarian Law

Palestinian Amb. Riyad Mansour Addressing the Security Council on Friday - UN Photo

Palestinian Amb. Riyad Mansour Addressing the Security Council on Friday – UN Photo

July 18, 2014 – The draft resolution that Jordan plans to circulate to Security Council members on Gaza includes a clause that explicitly refers to International Humanitarian Law.

Operative paragraph 3 of the draft textCalls upon all parties to abide by their obligations under international humanitarian law, including the Geneva Convention relative to the Protection of Civilian Persons in a Time of War of August 12, 1949.”

This language was absent from Resolution 1860 that ended Operation Cast Lead in 2008/09, an omission that disappointed several Council members then.

The statement that the 15-nation body agreed on July 12 also called upon parties to observe International Humanitarian Law.

A Council diplomat speaking to UN Tribune said the inclusion of language on international humanitarian law and on the protection of civilians in Saturday’s statement was significant. Council statements, while not binding, have to be agreed on by all fifteen members.

The diplomat added that at present there is no disagreement among Council members and there was consensus at Friday’s meeting in support of the Egyptian proposal for an immediate ceasefire.

The Council will meet again on Tuesday to discuss the crisis and, unless there is an end to hostilities by then, the resolution could be put to vote. If so, the ministerial committee formed by the Arab League on July 14, which is chaired by Kuwait and includes Morocco, Egypt and Jordan, would likely head to New York, at the foreign minister level, to press for adoption of the resolution. Arab League Secretary-General Nabil El Araby is also a member of the ministerial committee.

International humanitarian law regulates the conduct of war and grave breaches of its rules constitute war crimes that can be prosecuted by the International Criminal Court, which Palestine said it will join if Israel’s Operation Protective Edge continues.

The UN Office for the Coordination of Humanitarian Affairs on Friday reported that 268 Palestinians have been killed since July 7, including 193 civilians. Among those killed in the past eleven days are 59 children, representing 22 percent of all fatalities.

- Denis Fitzgerald
On Twitter @denisfitz