Humanitarian Aid in the Era of Responsibility to Protect: The Pitfalls of Pursuing Gunpoint Humanitarianism in Myanmar
A cyclone crashes into the shores of an impoverished international pariah. In the aftermath, the international community is forced to weigh humanitarian duties, the Responsibility to Protect, international sovereignty, and, ultimately, the bottom-line utilitarian consequences of delivering humanitarian aid by physical force.
One of the landmark achievements of the modern international system is the development of a sophisticated network of humanitarian aid organizations designed to bring food, water, and medical services to civilians whose lives are threatened by poverty, famine, displacement, war, natural disasters, or, often times, a combination of all of those factors. Through the coordinated efforts of UN-based organizations (such as the World Food Programme and UNICEF), international and domestic non-governmental organizations (NGOs like the Red Cross/Crescent and Doctors Without Borders), and private charities and relief organizations, vital life-sustaining assistance is delivered every year to tens of millions of men, women, and children caught dire situations. Much of the success of international humanitarian aid is owed to the fact that relief organizations have been able to gain access to the neediest areas, even in the midst of war, political instability, and violence. In rare cases, however, political or security problems have prevented the effective delivery of much-needed aid, forcing the international community to confront a difficult question: At what point, if any, is the use of military force justified in order to ensure that civilians have access to life-sustaining aid?
Complicating this debate further is the recent and rapid emergence of the “Responsibility to Protect” doctrine in international law over the past decade. Based on a report by the same name by the International Commission on Intervention and State Sovereignty (ICISS) in 1999 and subsequently ratified by 192 states at the 2005 UN World Summit (Luck, 2010), the Responsibility to Protect (R2P) challenges the traditional norms of absolute state sovereignty and non-intervention and opens up the possibility for justifiable forceful intervention by the international community in order to prevent the most serious humanitarian disasters. For advocates of intervention, the emergence of R2P as an international norm signifies the establishment of a legal justification and a moral imperative to use all necessary means to protect human lives, up to and including the use of military force. For opponents of using the goals of humanitarian aid organizations to justify any military action, R2P represents a dangerous blurring of the sharp lines between military and humanitarian activity and stands to undermine the the fundamental nature of international relief.
This debate was thrust into international relevance on the night of May 2, 2008, when a Category 4 cyclone crushed into the Irawaddy Delta of eastern Myanmar, killing tens of thousands, displacing millions, and inundating large swaths of cropland (Barber, 2009). Humanitarian organizations and foreign governments began mobilizing to provide critical assistance to the 2.4 million Burmese that were devastated by the storm, but were halted by the stifling bureaucracy of the intransigent ruling military junta in Myanmar. Weeks after the storm, the WFP reported that it had only gained access to 30 percent of the areas in need (Barber), and a number of other UN agencies and NGOs were completely shut out of the country, despite the urgent need for relief in the region (Heath, 2011). With the threat of a second, preventable humanitarian disaster looming in Myanmar, there was a loud cry among media figures, legal scholars, and politicians to invoke R2P and forcefully open the country up to receiving humanitarian aid. Ultimately, the opposition to providing humanitarian aid at gunpoint prevailed, and by July a deal was struck with the junta to allow aid workers under the aegis of the Association of Southeast Asian Nations (ASEAN) to peacefully provide relief (Barber, 2009).
The international response to the situation in Myanmar following Cyclone Nargis illustrates that the development and widespread acceptance of R2P as a principle has changed the fundamental nature of the debate over armed intervention for the purpose of providing humanitarian aid by opening up new legal and normative grounds for pro-intervention arguments. Since R2P both establishes a new legal framework for justifiable intervention as well as broadens the moral imperative for the protection of individual rights, the legitimacy (and effectiveness) of using military force to deliver humanitarian relief needs to be re-examined in the R2P era. This requires looking at two separate questions: First, does the doctrine of R2P effectively legalize armed intervention to deliver humanitarian aid? And second, does the emergence of international norms endorsing the use of force to protect human rights invalidate the long-held belief that humanitarian aid needs to be neutral, separate, and as independent as possible from military forces in order to best complete its mission?
This paper will analyze the case of Myanmar in the aftermath of Cyclone Nargis to demonstrate, first, that R2P does not create a legal justification for using military force to deliver humanitarian aid, and second, that keeping military objectives and humanitarianism separate is even more important, not less, in the modern era. Ultimately, the concept of delivering aid at gunpoint is as flawed in the post-R2P era as it was before, both from a legal standpoint as well as from a moral or consequentialist position. Given the multitude of high-profile voices in the media, academia, and even at the highest level of the political world calling for an invasion of Myanmar in 2008, it is imperative to make a frank and honest assessment of the illegality and pragmatic drawbacks of such courses of action.
This paper will begin by exploring the relationship between humanitarianism and military intervention since the end of the Cold War, and how the emergence of the Responsibility to Protect doctrine has changed and complicated the debate over the necessity of a wall of separation between these two objectives. The second half of the paper will analyze the case study of Cyclone Nargis, beginning with a survey of the arguments advocating for a military intervention based on the legal and normative framework of R2P and concluding with an analysis of both the legal and practical implications of these claims. In the end, the evidence shows that the arguments for coercive action in Myanmar fail on both accounts. Military intervention for the sole purpose of delivering humanitarian aid not only fails to meet the threshold for legal intervention laid out in R2P, but it also falls short of achieving the overarching moral imperative of R2P of protecting human life.
Intervention Before the Responsibility to Protect
The international norm of allowing neutral and impartial humanitarian aid to mitigate the humanitarian costs associated with conflict, famine, and natural disasters can be traced back to the work of the Swiss businessman Henry Dunant and his fateful trip to Italy in 1859. During his trip, Dunant witnessed the Battle of Solferino and its horrifying aftermath, and spent the rest of his life advocating for the creation of volunteer organizations to provide impartial medical relief during times of war (such as the International Committee of the Red Cross, which he co-founded) and the passage of a series of international treaties to guarantee the safety of neutral aid workers and protection of non-combatants in war (Dunoff, 2006). The access of relief organizations to areas in need was legitimized by a number of Geneva Conventions, where signatory states gave official consent to the emerging norm of allowing independent organizations to assist in minimizing the suffering associated with war (Dunoff).
A central concept of humanitarian aid since its earliest days is its strict separation from the objectives and interests of the belligerent parties. Relief is given without bias to all on the basis of need, and aid workers are stridently neutral, impartial, and independent from the conflicts surrounding them (Cornish & Glad, 2008). This orthodoxy went unchallenged for most of the 20th century, as the question of whether or not relief organizations should be able to provide their services without the consent of the host state was rendered moot by the widespread mandate of non-intervention associated with the contentious geopolitics of the Cold War era. It was not until the fall of the Soviet Union and the end of the sharp bipolar world system that the concept of coercive “humanitarian intervention” could even be considered (Bercovich & Jackson, 2009). Throughout the 1990s, a number of military interventions were undertaken, at least in part, under the auspices of providing humanitarian relief. While the label “humanitarian intervention” is broadly applied to any military action with some humanitarian component, ranging from missions to restore political stability (such as the American intervention in Haiti) or to protect civilians from systemic violence (such as the NATO-led campaigns in Bosnia and Kosovo) (Recchia & Beckley, 2009), there are two prominent examples of military interventions in the pre-R2P era that were, ostensibly at least, primarily about ensuring the delivery of international aid to states that were either unwilling or unable to allow it. The interventions in northern Iraq and Somalia are instructive examples of how military and humanitarian objectives began to draw closer together in the post-Cold War (but pre-R2P) era, even over the objections of prominent leaders in the humanitarian aid field.
Iraqi Kurdistan, 1991
In the aftermath of the First Gulf War, the Kurdish regions of northern Iraq and eastern Turkey were overwhelmed with refugees fleeing the retribution of the Iraqi Republican Guard. Because of logistical and political obstacles, a large number of refugees found themselves trapped in the rugged mountains of northern Iraq, cut off from access to food, clean water, sanitation, and medical assistance. The UN Security Council responded by passing Resolution 688 condemning Iraq’s abuse of its citizens and demanding that it allow access to humanitarian aid groups (Rudd, 2004). When the humanitarian situation continued to degrade and air drops of aid and supplies proved to be insufficient and unreliable in the mountainous terrain, the United States began Operation Provide Comfort, using ground troops and air support to hold back Iraqi military forces and clear the way for the delivery of aid via truck and helicopter (Rudd).
While Operation Provide Comfort did succeed in bringing much-needed assistance to the refugees trapped in the mountains with minimal military confrontation, its success was not necessarily precedent-setting for the use of force to deliver humanitarian aid. For one, it was not formally authorized by the Security Council. While Resolution 688 strongly condemned the actions of the Iraqi government, it did not proscribe any military intervention, and in fact went as far as to reaffirm the “sovereignty, territorial integrity and political independence” of Iraq (U.N. Security Council, 1991). Additionally, the refugee crisis in northern Iraq was a unique situation that was essentially an extension of another international conflict, the Gulf War. The debate over using military force to bring relief to northern Iraq would have been fundamentally different if a.) the refugee problem had not occurred in the course of an ongoing interstate conflict, and b.) if the issue of Iraq’s territorial sovereignty had not been rendered moot by the allied invasion in Desert Storm. A more instructive example of an attempt to use military force for the sole purpose of delivering humanitarian aid came two years later on the Horn of Africa.
After the violent ouster of President Siad Barre in January 1991, Somalia was thrown into anarchy as the various tribal factions fought a fiercely-contested civil war. By the end of 1992, the severe fighting, combined with an untimely drought, left the Somali agricultural system in ruins and millions of civilians facing the prospect of starvation (Seiple, 1996). Humanitarian aid organizations in Somalia were unable to bring relief to the affected populations due to the complete lack of security or authority in the country. Warlords routinely hijacked and hoarded food and medical provisions, and many organizations had to resort to paying exorbitant protection fees to local gangs to ensure their safe passage, unwittingly perpetuating and financing the ongoing conflict (Recchia & Beckley, 2009). Convinced that the degrading situation in Somalia represented a threat to international peace and security, the UN Security Council passed Resolution 794, invoking Chapter VII of the UN Charter authorizing its member states to use “all necessary means”, including military force, to secure the delivery of humanitarian aid in Somalia (U.N. Security Council, 1992).
While the intervention in Somalia produced some positive results in improving the delivery of aid in occupied areas, the enduring legacy of the mission was that the intervening military forces were ultimately drawn into the fighting going on around them, adding yet another violent faction to the crowded conflict zone (Weissman, 2004). The lives that were saved by the freeing of humanitarian aid came at the cost of increasing the level of violence and instability in the region, and was further offset by the number of Somalis killed or wounded in confrontations with the intervening forces. The infamous Battle of Mogadishu alone resulted in over 1,000 Somali casualties (many of them women, children, and civilians) in a single 18-hour firefight (Bowden, 1997), undercutting the intervention’s goal of improving the living conditions in Somalia.
The failure to demonstrably improve the humanitarian situation in Somalia despite the concerted efforts of the United Nations seemed to vindicate the concerns of leaders in the humanitarian aid field about the improper blending of humanitarian and military goals. Accepting the 1999 Nobel Peace Prize on behalf of the humanitarian NGO Médecins Sans Frontières (MSF/“Doctors Without Borders”), Dr. James Orbinski criticized the growing trend of military-humanitarian operations both for being unjustified by international law as well as for undermining the vital neutrality, transparency, and “clarity of intentions” of humanitarian aid (Orbinski, 1999). Chapter VII of the UN Charter, the primary source of law regarding international intervention before R2P, only allows for the violation of state sovereignty in the event of a grave threat to international peace and security. Interruptions to humanitarian aid, however tragic they may be, simply do not meet that standard, and therefore cannot be used as legal justification for military interventions. Similarly, one need only look to the unrestrained and indiscriminate urban warfare conducted in the name of humanitarianism in the Battle of Mogadishu to see how linking with military force negates the very mission of humanitarian aid.
The Creation of the Responsibility to Protect
The dismal results in Somalia had a chilling effect on the political will in the UN to authorize further interventions, even as appalling humanitarian disasters developed in Rwanda and Bosnia. While Somalia was a failure because the military forces deployed to ensure the delivery of humanitarian aid ultimately became a part of the bloody conflict that had caused and perpetuated the humanitarian crisis, the endemic state-sponsored violence against civilians in Bosnia and Rwanda presented a much clearer military mission (halting the actions of the known aggressors) and humanitarian outcome (preventing a genocide) of international intervention. While organizations like MSF were critical of the military-humanitarian missions of the 1990s, they are quick to point out that the humanitarian goal of mitigating the suffering incurred in conflict is impossible in the face of the supreme evil of genocide (Weissman, 2004). Once a conflict turns into a quest to exterminate a particular group of people, humanitarianism becomes irrelevant, and the only positive outcome is to stop the aggression by any means necessary (Weissman).
This imperative was not heeded by the UN Security Council, however, and shocking displays of ethnic cleansing and genocide unfolded in Bosnia and Rwanda while the Security Council remained paralyzed by its cautiousness (a result, in part, of its humiliation from the Somalian intervention) and political polarization. As the 20th century came to a close, the international community faced a difficult task: finding a way to balance the legal prohibition of outside intervention in a sovereign state’s domestic affairs (as outlined in Article 2(7) of the UN Charter) against individual human rights and the shock and horror of the gravest crimes against humanity (Steiner, Alston, & Goodman, 2007). To address this problem, the Canadian government created the International Convention on Intervention and State Sovereignty (ICISS) to report on possible solutions to the legal and political logjams that had allowed the tragedies in Rwanda and Bosnia to unfold. In 2001, the ICISS released its final report, titled The Responsibility to Protect, which recast state sovereignty as a responsibility that carried with it the duty to protect citizens from grave human rights violations, a responsibility that could be shifted to the international community if a state should fail to live up to it (Byers, 2005). This framework was endorsed in 2004 by the UN Secretary General’s High Level Panel on Threats, Challenges and Change, and ultimately passed, with some modifications, in a resolution by the General Assembly following its unanimous approval at the 2005 World Summit (Barber, 2009). The final version of R2P endorsed by the General Assembly advocated for the ability of the Security Council to authorize collective military action in cases where national authorities “manifestly fail to protect their populations” from the most serious violations of human rights, enumerated in the resolution as genocide, war crimes, ethnic cleansing, and crimes against humanity (Barber).
The advancement of R2P represented a major step forward in clarifying the legal and normative basis for humanitarian intervention, both setting clear legal thresholds for justifiable intervention through the Security Council and by redefining the concept of state sovereignty to remove the blanket immunity from outside intervention outlined in Article 2(7) of the Charter. While the R2P doctrine was designed to prevent further inaction by the international community in the face of the most serious classes of abuses of human rights, the new legal and moral framework that it created called many of the old arguments against military-humanitarian missions back into question. It was against this backdrop of evolving international norms about human rights and state sovereignty that Cyclone Nargis tore through the Irrawady Delta in Myanmar.
Calls for Intervention after Cyclone Nargis
If the ill-fated intervention in Somalia struck a fatal blow to the idea that humanitarian conditions can be improved through a military invasion, the widespread calls for an intervention in Myanmar illustrated that the emergence of the Responsibility to Protect doctrine brought the concept back to life. As the generals in Myanmar continued to block, stall, and frustrate efforts to deliver international aid to the Irrawady Delta region, more and more figures in the media, international law, and politics began to call for an R2P-based intervention. One week after the cyclone, the editors of The National Review called the failure of the United States to intervene in Myanmar an “unacceptable abdication of our moral responsibilities” (The National Review, 2008), and similar sentiments were expressed by figures ranging from former US Secretary of State Madeleine Albright (Albright, 2008) to Time Managing Editor Romesh Ratnesar (Ratnesar, 2008) to The Atlantic‘s Andrew Sullivan (Sullivan, 2008). A similar theme ran through these arguments: if ever there was a time to invoke the duty to forcefully protect human rights over the restrictions of state sovereignty, the unfolding human tragedy in Myanmar would be it.
The calls for military action were also prevalent at the highest level of politics. One of the strongest proponents of military action was French Foreign Minister (and co-founder of the ardently anti-intervention NGO Médecines Sans Frontières) Bernard Kouchner, who directly appealed to the Security Council in the days following the cyclone to invoke R2P and authorize the delivery of humanitarian aid without the consent of the junta (Asia-Pacific Center, 2008). Kouchner’s outspoken support for humanitarian intervention was a factor in his departure from MSF in the 1980s (Medecins Sans Frontieres, 2007), and continued to be a point of contention between the two nearly thirty years later.
Kouchner was not the only powerful and influential public figure calling for intervention. Alexander Downer and Lloyd Axworthy, former Foreign Ministers from Australia and Canada (respectively), both made public calls for armed intervention, with Axworthy going as far as to say that any deaths caused by the junta’s denial of humanitarian aid should be treated as the moral equivalent of the killing of civilians with machetes or AK-47s (Barber, 2009). In the United States, 43 Congressmen signed a letter appealing for an intervention to bring aid to Myanmar (Jackson, 2009), and even one of the co-chairs of the ICISS (the organization that developed the Responsibility to Protect) penned an op-ed arguing that the actions of the generals in Myanmar might qualify as a crime against humanity and, by extension, warrant an R2P-based intervention (Evans, 2008).
The collection of voices calling for military action in Myanmar represented an impressive cross-section of political decision-makers, respected diplomats, and influential parts of the media. Considering the high-profile support for staging an armed intervention to deliver humanitarian aid, it is important to assess both the legality of such an action as well as the practical consequences, both in the short term (how it would affect the situation in Myanmar) and in the long term (the effect that such a precedent would have on the future of humanitarian aid). In all of these cases, there are significant flaws in the pro-intervention argument.
The Legality of Humanitarian Intervention in Myanmar
Before the advent of R2P, the consensus in international law strongly favored non-intervention. Article 2(7) of the UN Charter explicitly restricts international intervention into the purely domestic affairs of a sovereign state, with the sole exception of peace enforcement measures outlined in Chapter VII, which are applicable only in the event of a threat to international peace and security (Steiner et al., 2007). The military action to deliver humanitarian aid in Somalia was authorized under Chapter VII for the threat the Security Council deemed that the relentless civil war and famine posed to the peace and security of the region and, by extension, the entire international system. The crisis in Myanmar, on the other hand, was not the result of an armed conflict, and as such did not pose any exigent threat to regional or international peace and security. By the traditional legal definitions of state sovereignty and lawful intervention outlined in the UN Charter, there is no meaningful justification for forceful delivery of aid following a natural disaster.
Instead, the primary legal justification put forward by advocates of intervention in Myanmar surrounded the emerging norm of R2P as laid out by the resolution passed in the UN General Assembly. The version of R2P accepted into international law requires two major qualifying factors: first, any intervention under R2P must be authorized by the Security Council, and second, R2P can only be invoked in response to four categories of serious crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity (Heath, 2011). The outspoken objections by Russia and China, both veto-holding powers in the Security Council, to any intervention in Myanmar all but assured that the first qualification would not be met (Ford, 2009). While the impossibility of passing a resolution for action through the Security Council was largely a product of the political realities of the time, the lack of official legal sanction from the authorizing international body still marks a failure for the situation in Myanmar to meet the accepted standards of an R2P intervention (Ford).
That aside, the humanitarian crisis in Myanmar still did not fit into any of the four categories of crimes that qualify for intervention under R2P. The denial of international aid was not a genocide as defined by the Convention for the Prevention and Punishment of the Crime of Genocide, as it was not conducted with the intent to “destroy, in whole or in part, a national, ethnic, or religious group” (Barber, 2009). Nor was it a war crime (as there was no ongoing armed conflict) or an example of ethnic cleansing (the displacement caused by the cyclone, while extreme, was not intentionally targeted against any one group) (Barber). The only remaining category is “crimes against humanity”, which is what most advocates of intervention accused the junta of committing (Evans, 2008). While the term “crimes against humanity” seems fairly broad and ambiguous, the Rome Statute of the International Criminal Court succinctly defines it as intentional, premeditated acts that are “committed as part of a widespread or systematic attack against the civilian population” (Rome Statute of the International Criminal Court, 1998). The types of acts that fall under the definition are enumerated in the statute as: (a) murder, (b) extermination, (c) enslavement, (d) deportation or forcible transfer of population, (e) severe depravation of physical liberty, (f) torture, (g) rape, (h) persecution, (i) enforced disappearance, (j) apartheid, and (k) “other inhumane acts… intentionally causing great suffering” (Rome Statute).
Frustrating the flow of international assistance does not neatly fit into any of the first ten categories, and the closest definition would be the final one, “other inhumane acts”, a broad catch-all category that does not lend itself to a clear standard of proof. Ultimately, the decision on whether or not an action is inhumane enough to be considered a crime against humanity is highly subjective. However, lowering the standard for what constitutes the most severe crimes against humanity to actions that do not include any of the specific rights violations listed in the Rome Statute (items a through j) severely weakens the moral and legal force of the term. This standard was upheld in many subsequent legal opinions. In the aftermath of the Cyclone Nargis affair, the UN International Law Commission (ILC) conducted a study on natural disasters and international intervention, releasing a report in 2009 that military force to deliver humanitarian aid is in no way justified by international law (Heath, 2011). This sentiment has been echoed by UN Secretary-General and the Special Advisor on R2P (Cohen, 2008), as well as by international organizations like the Asia-Pacific Centre for the Responsibility to Protect (Asia-Pacific Centre, 2008) and NGOs like Médecins Sans Frontières (Bouchet-Saulnier, 2008).
Ultimately, there is no clear legal justification for using force to deliver humanitarian aid in the aftermath of a natural disaster. Traditional international law only allows for interventions in cases that pose a clear threat to international peace and security, and the emerging norm of R2P applies only to intervention in response to an enumerated list of serious crimes that does not include providing inadequate access to foreign aid.
The Practical Implications of Gunpoint Humanitarianism
Beyond the issue of the legality of military interventions to deliver humanitarian aid is the question of whether or not there exists a moral or normative imperative for ensuring the delivery of relief to areas in dire need by any means necessary. Put another way, does the emergence of R2P as an accepted international norm signify the international community’s endorsement of the idea that it is morally unacceptable for efforts to prevent grave violations of human rights to be halted by legal technicalities and procedural hurdles? Answering this question, as it relates to the argument for intervention in Myanmar, requires examining the situation pragmatically and assessing both the short-term and long-term consequences of such an operation. In both cases, the practical implications of military action weigh strongly in the favor of non-intervention.
The most short-term way of assessing the consequences of a military intervention in Burma is from a purely utilitarian standpoint: Would the forceful delivery of humanitarian aid end up with more or less loss of life in the disaster area? This question was addressed in an article by the American journalist and defense expert Robert Kaplan in the heat of the debate over sending military forces to Myanmar. In his article, Kaplan called a US-led military intervention “militarily doable” based on the fortuitous positioning of part of the US Navy fleet, while adding the caveat that such action could lead to a destabilizing regime change, a failed state, and the subsequent need for the US to take significant responsibility in supervising a long and arduous reconstruction project (Kaplan, 2008). This weighty set of consequences attached to a military intervention undermines any benefit that would come by increased access for humanitarian groups, and highlights the wisdom in the argument put forward by ICISS member Ramesh Thakur that “there is no humanitarian crisis so grave that it cannot be made worse by military intervention” (Barber, 2009). Even if armed hostilities were mercifully avoided in the course of a humanitarian intervention in Myanmar, there would also be serious negative political consequences to such an action. If the ruling junta reacted to the unwanted invasion by expelling UN and aid workers already in the country, the net benefit of the intervention would immediately be canceled out by the hundreds of thousands of Burmese that would be subsequently denied access to humanitarian aid (Ford, 2009). By a purely utilitarian calculation, it is difficult to imagine how an invasion would have saved any additional lives, and the risk of a military intervention setting off a chain of events that would result in even more loss of life is unacceptably high (Asia-Pacific Centre, 2009).
In the longer term, authorizing missions that merge humanitarian and military objectives sets a dangerous precedent and has serious detrimental effects for the future of humanitarianism. For one, humanitarian aid depends on its transparent neutrality and impartiality to gain unfettered access to the areas that are in the most need. When humanitarian aid becomes linked with political and military objectives, it can no longer lay claim to its vital neutrality. The international community’s ability to claim legitimate outrage when Sudan’s Omar al-Bashir expelled humanitarian aid groups in Darfur in retaliation for his indictment by the International Criminal Court or when Zimbabwe’s Robert Mugabe routinely uses the denial of humanitarian aid to exact political punishment on his opponents is severely weakened when the mission of humanitarian aid organizations becomes one with military and political objectives (Edgerton & Labonte, 2010). More simply, actions that politicize humanitarian aid weaken the moral force of the argument that humanitarian aid should never be used as a political tool.
Another problem with humanitarian-military interventions is that the philosophy of humanitarian aid is irreconcilable with the cold and pragmatic calculations at the heart of military and political decision-making. The very concept of military force requires consenting to the idea that the loss of some human life is acceptable in the service of greater goals. This is the exact opposite of the philosophy put forward by humanitarianism. If the cold pragmatism of war can be explained by the saying “you need to break a few eggs to make an omelet”, then the philosophy of humanitarianism is that all human life (“eggs”, in the metaphor) should be neutrally, impartially, and unflinchingly defended from the ravages of war, regardless of the greater political context (Weissman, 2010). Given the paradox of holding these contradictory ideologies simultaneously, the overarching philosophy of humanitarianism must be abandoned or severely altered if it is linked with military force.
Finally, blurring the lines between aid and military objectives poses a serious threat to the lives and safety of aid workers. While relief work in conflict-torn areas has always been a precarious job, the strident neutrality and impartiality of aid workers has been one of the main factors safeguarding humanitarian workers from the violence surrounding them (Benjamin, 2009). Compromising the sharp line of separation between military force and humanitarian aid poses a serious threat to the safety of aid workers. This effect has been clearly shown in the ongoing international intervention in Afghanistan. With humanitarian aid and development an integral part of the allied counterinsurgency plan, aid and development projects such as schools and hospitals have become valuable targets for attack (Cornish & Glad, 2008). Statistics confirm that humanitarian aid work is becoming more and more dangerous, as there was a 92% increase in violent attacks against aid workers from 1997 to 2005 (Stoddard, Harmer, & Haver, 2006). This trend has continued unabated, as 2008 and 2009 were more deadly for aid workers than any year preceding them (Bear, 2009).
Armed intervention in Myanmar, in addition to being unjustified from a legal standpoint, was also indefensible from a consequentialist perspective, both in its short-term utilitarianism (it would not have saved more lives, and could have possible resulted in even more humanitarian suffering) as well as in its larger, long-term ramifications for the future of humanitarian aid.
The emergence of the Responsibility to Protect has been a significant event in the development of the international system. The ability of the large and diverse international community to develop a responsive policy designed to prevent a recurrence of the horrors that resulted from the failure to respond to the crises in Rwanda and Bosnia is commendable, even if its implementation has been imperfect. Because of the R2P doctrine, there are new legal tools available in the international system for confronting the gravest threats to human rights: genocide, war crimes, ethnic cleansing, and crimes against humanity.
At the same time, it is important not to confuse the responsibility to prevent or stop widespread and systemic attacks on human rights with a mandate to use whatever force is necessary to deliver humanitarian aid. The four serious crimes that warrant intervention under R2P do so because the suffering and devastation that they inflict on civilians cannot be mitigated by humanitarian organizations, leaving no available option for protecting individual human rights but the use of coercive force. The inadequacy of access for international humanitarian aid organizations, even if it is the result of deliberate intransigence by the government, does not fall into this category of crimes. Furthermore, the consequences of merging humanitarianism with military objectives are dire, both in the immediate term and in the larger picture. An armed intervention in Myanmar to provide humanitarian aid would not have saved lives, and almost certainly would have made the situation worse, both for the unfortunate victims of the cyclone as well as for the future prospects of aid workers and the very philosophy of humanitarian relief. Ultimately, the biggest challenge for the international system in living up to the ideals enshrined in R2P will be to find the courage and discretion to ensure that it is only utilized in situations where it is legal, effective, and capable of creating a positive result. Failure to choose the right battles is a devastating prospect, both for the principle of protecting human rights as well as the lives and dignity of those unfortunate enough to be caught in the middle of misguided attempts at gunpoint humanitarianism.
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Obstacles to Rebuilding Bosnia and Herzegovina: Addressing the Unique Challenges to Successful Post-Conflict Reconstruction
My introduction to the twisted maze that was post-conflict Bosnia-Herzegovina. Organ smugglers, soccer-goon militias, and smugglers predominated and illustrate the depth of obstacles to reconstruction that build up over years of conflict.
In November of 1995, the Dayton Accords were signed, bringing a nominal end to over three years of violent conflict, forced deportation, and general lawlessness that ravaged the small multiethnic Balkan state of Bosnia and Herzegovina. This landmark peace agreement, however, was only the first step in a long and arduous (and still unfinished) process of rebuilding Bosnia and moving it past the sectarian strife, belligerent ethnic nationalism, and unrestrained criminal activity that both started and perpetuated its bloody civil war. While the international community has remained committed to seeing this reconstruction project through, the rebuilding effort has run into numerous snags and pitfalls by failing to properly tailor its strategies to the numerous problems and challenges that are unique to the region. These failures have come despite the unprecedented levels of military resources, foreign aid, and political will that have been committed to such a small state (with a current population of 4.6 million, Bosnia and Herzegovina is the world’s 120th most populous country [The World Factbook, 2011]). This highlights the reality that reconstruction projects can face setbacks and defeats even under ideal conditions of international commitment and resources, and that the ability to understand and react to the unique circumstances on the ground is just as important (if not more so) than the sheer amount of money, personnel, and resources that are committed to the task.
While every post-conflict situation is different, reconstruction projects have a tendency to fall into the same general template that has been used since the rebuilding of Germany and Japan following World War II, often at the expense of giving proper scrutiny to the unique situations and challenges on the ground (Jones, 2010). The process of developing a shared agreement among competing factions for the new government, holding elections, demobilizing militants, and building a strong government to maintain order and create the conditions for economic growth have served as the framework for nearly all modern post-conflict interventions (Ottaway, 2002), including the larger ongoing projects in Iraq and Afghanistan. In some aspects, this model has been successfully applied in Bosnia, owing largely to the manageable size of the project, the open-ended commitment of money and resources from the international community, and a well-established and agreed-upon final goal of integrating Bosnia into the European Union, which would provide both lasting economic security as well as a level of regional interdependence and shared norms that will greatly reduce the risk of a resurgence of war (O’Brien, 2006). However, the path of state-building in Bosnia has been fraught with obstacles that have arisen as a result of problems and challenges unique to the region that have conflicted with the generic reconstruction template used by the international community. The reconstruction effort, as a result, has been an exercise in adjusting on a case-by-case basis to developing details on the ground and searching for the best solutions that cater to the specific and unique dynamics in Bosnia.
In the course of the reconstruction efforts in Bosnia, three major obstacles have arisen that have challenged the efforts of state-building, democratization, and economic recovery by the international community. First, in the immediate aftermath of the war, Bosnia was plagued with an enormous refugee crisis, with about half of the entire population either internally displaced or driven abroad (Dahlman & Ó Tuathail, 2006). The challenge of accounting for the rights of return for 2.2 million displaced people posed an immediate roadblock to any further state reconstruction, and continued to challenge the creation of a post-conflict rule of law. Second, a strong undercurrent of ethnic nationalism has remained in Bosnian politics, even after the official end of the fighting. This animosity has posed a serious threat to the hard-earned peace of the Dayton Accords, and has only grown in prevalence in domestic politics as a result of the highly-segregated state divisions that were created by ethnic cleansing during the war. As a result, the process of democratization has been severely hindered by the risk of populist politics reigniting ethnic conflict, as well as the international community’s efforts to restrict a premature return to democracy from unraveling the peace in the country. Finally, the explosion of organized crime and lawlessness in the country during the war left post-conflict Bosnia rife with hugely powerful and wealthy criminal enterprises. With the active fighting over, the well-organized criminal networks have switched their smuggling operations from arms and war supplies to more conventional contraband, such as drugs, stolen cars, and human beings. The dominance of criminal activity in post-conflict Bosnia has posed a major hurdle for the prospects of developing sustainable (and legal) economic growth and implementing democratic reforms, and has also posed a humanitarian crisis as Bosnia has become a major hub in the deplorable business of kidnapping and selling girls and women into international sex slavery (Dawson, 2008).
The impact that these three problems in post-conflict Bosnia have presented to international state reconstruction efforts illustrate the importance of understanding the unique challenges in every post-conflict state and adjusting strategies accordingly. While having adequate resources and political support is a critical factor in the success of post-conflict reconstruction projects, it is equally important for international actors to ensure that rebuilding efforts are responsive to the conditions on the ground and the challenges that are specific to each individual situation. Reconstruction efforts, no matter how well-funded and supported, can only be as successful as their ability to adjust to emerging problems permits.
Background on the Bosnian Civil War
With the fall of the Soviet Union and the collapse of the global communist system, nationalist sentiment began to grow among the ethnic communities of Yugoslavia. The breakup of Yugoslavia began with the states of Croatia and Slovenia splitting off in 1991, and by 1992 Bosnia and Herzegovina passed its own referendum on independence. Unlike the other Balkan states, Bosnia was not dominated by a single ethnic group, but instead was comprised of three major factions: Bosnian Muslims, or Bosniaks, which made up a plurality (although not a majority) of the population, Serbs, and Croats. Immediately following its declaration of independence, fighting broke out in Bosnia over which ethnic group would have control over the new state. Armed and supported by the Serbian ultra-nationalist president of Yugoslavia Slobodan Milosevic, Bosnian Serbs launched an aggressive campaign of violence and pillaging, seizing 70 percent of the country and brutally “ethnically cleansing” the conquered territory through forced deportations and, in some cases, mass murder (Dobbins et al., 2003). The Serb-only conquered territory declared its independence as the Republika Srpska, and continued to fight for land and Serb domination. Pushed into a tenuous alliance, the besieged Bosniaks and Croats were eventually able to halt the advances of Bosnian Serbs, largely due to their ability to bring in weapons and supplies through criminal smuggling networks (Andreas, 2004). After three years of fighting and continued “purification” of Bosnian territory (undertaken by all three ethnic groups), a Croation-supported counteroffensive with air support from NATO was able to pressure the Bosnian Serbs to end their expansionist pursuits and come to the table for peace talks. In December of 1995, the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), known colloquially as the Dayton Accords, was signed in Paris, bringing an official end to the civil war and laying out a rough outline of the reconstruction plan for the war-ravaged state (Dobbins et al., 2003).
The main feature of the Dayton Accords was the division of Bosnia into two equally-sized and largely ethnically homogenous entities (the Republika Srpska and a Croat-Bosniak Federation of Bosnia-Herzegovina) united under a loose federalist state (Hulsey, 2010). It also created a rotating tripartite presidency with one representative from each ethnic group, overseen by an international Office of the High Representative (Knaus & Martin, 2003). Finally, the Dayton Agreement called for an international security force under NATO auspices (IFOR) to ensure a cessation of hostilities, disarm and demilitarize the country, and assist in the humanitarian crisis presented by the enormous number of refugees and displaced peoples created by ethnic cleansing (Dobbins et al., 2003). The UN quickly passed the authorization of a Chapter VII peace enforcement mission in Bosnia and the creation of an international court to prosecute war crimes committed in the course of the conflict (the ICTY) (Dobbins et al.).
Because of its proximity and strategic importance to Europe, the international reconstruction effort in Bosnia has been, on a per capita basis, among the largest outside interventions in a post-conflict state. The 60,000 IFOR troops that were committed to stabilizing the country in the aftermath of the war was, per capita, nearly three times the highest level of international forces in Iraq, and the $15 billion in international aid is nearly five times more per person than the amount that has been directed to Afghanistan in the course of its reconstruction (McMahon & Western, 2009). While there was a strong international commitment to Bosnia, the problems the country faced were extensive. For one, the economy of Bosnia had been devastated, both from the collapse of communism and its hurried entry into the international capitalist system as well as the three years of hard fighting and displacement that ground all (legitimate) economic activity to a halt. By the end of the war, the economy had fallen to one-third of its prewar levels (Dobbins et al., 2003), and unemployment had skyrocketed to nearly 70 percent (Haynes, 2010). Bosnia also faced a refugee crisis of nearly unprecedented scope, with over 2.2 million people displaced internally or abroad, nearly half of the country’s entire population (Dahlman & Ó Tuathail, 2006). Additionally, Bosnia faced a ruined infrastructure (nearly half of the buildings in the country had been damaged by the fighting and NATO bombing campaign), ethnic tensions exacerbated by the extreme segregation that had been brought about by ethnic cleansing, criminal organizations that had grown rich and powerful off of the wartime economy, and an estimated 750,000 land mines scattered across the battle lines from the war (Dobbins et al., 2003).
At the end of the fighting phase of the Bosnian civil war and the beginning of the long reconstruction phase, the international community was faced with a fledgling state that suffered from a wide and interconnected web of problems and unique challenges. Fortunately for the international community, Bosnia presented a problem of manageable size – despite the breadth and depth of its problems, it was still a very small country (both in size and population), so a strong showing of military force and aid money was capable of making a meaningful impact on a local level. With sufficient resources and political will pledged to reconstructing Bosnia, the remaining hurdle was finding a way to make the investment pay off and make tangible progress toward alleviating post-war Bosnia’s unique ailments.
Solving the Refugee Crisis
In addition to the 200,000 lives lost to fighting and genocide, the Bosnian civil war left over 2.2 million people displaced (both internally and abroad) from their homes due to the aggressive campaigns of ethnic cleansing that took place during the war (Dahlman & Ó Tuathail, 2006). As a result of these violent campaigns of ethnic purification, Bosnia went from a relatively heterogeneous mixture of ethnic groups (as shown by the map in Figure 1) to a jigsaw of starkly divided, ethnically homogenous enclaves (Figure 2) (Kreso, 2008). While the international community condemned the deplorable tactics that had been used to bring about this forceable segregation to Bosnia, the Dayton Accords did little to address the issue in the short term, and in fact ended up validating and legitimizing the end results of ethnic cleansing by dividing the state into two mono-ethnic units (Republika Srpska and the Bosniak-Croat Federation) and subdividing those units into mono-ethnic cantons and local districts (Hulsey, 2010). In order to prevent the segregation achieved through ethnic cleansing from becoming accepted and permanent, the Dayton Accords included a provision in Annex VII that required Bosnia return to the ethnic integration that was documented in the 1991 census (Figure 1) and guaranteed for all property illegally seized in the war to be returned to the owners as of April of 1992 (Dahlman & Ó Tuathail, 2006).
While undoing the damage that had been done by ethnic cleansing was a worthy goal and a critical first step for post-conflict reconstruction in Bosnia, there were a number of logistical and practical obstacles to actually implementing a plan to reverse the trend of ethnic segregation. At first, the primary tool for achieving this objective was the Commission for Real Property Claims of Displaced Peoples (CRPC), an institution created through the Dayton Accords and run by the international authority in Bosnia (the OHR) that sought to solve the refugee crisis through a top-down mandate from an international body (Williams, 2006). While a significant number of displaced people were resettled in the first few years after the end of the fighting, most of the resettlements were “majority returns”, which involved refugees returning to their homes in areas predominated by their own ethnic group (Ó Tuathail & O’Loughlin, 2009). The large number of majority returns undermined the spirit of the Article VII provisions as it ultimately served to increase the level of ethnic segregation in Bosnia rather than alleviate it.
The failure of CRPC to reverse the trends created by ethnic cleansing was largely attributable to fact that it attempted to resolve the refugee crisis by imposing its rulings from the top down without coordinating with local institutions to ensure that its mandates were carried out. As a result, there was a distinct lack of any local support or security for minorities attempting to return to their homes in territory dominated by rival ethnic groups. In fact, in many cases, due to lack of any oversight on the local level by the CRPC, the local authorities that were in charge of enforcing resettlements and evictions were the same officials that had been in charge of the mass deportations of ethnic minorities during the war (Williams, 2006). It is no surprise, then, that minority returns were rarer, since there was no system in place to ensure the safety of returning ethnic minorities or guarantee their acceptance back into society.
In light of this, the international community responded by shifting resettlement duties to the Property Law Implementation Plan (PLIP), which took a much more bottom-up approach and focused on local domestic institutions. The PLIP called for substantially more international oversight from the UN missions in Bosnia, the OHR, and a number of European agencies to ensure that local institutions were accountable for and capable of enforcing property laws and handling both minority and majority returns (Williams, 2006). By focusing on building up local capacity to handle returns through international oversight and assistance, the PLIP was able to develop a much more fair and depoliticized claims system. Instead of trying to solve the displacement crisis by issuing orders from on high to largely unaccountable (and highly unreliable) local institutions, the PLIP focused on ensuring that the rule of law was carried out in all property claims by bringing in large amounts of international oversight to hold domestic institutions accountable (Williams).
Unfortunately, even these improved efforts have done little to undo the demographic changes that came as a result of the war. A respected NGO in Bosnia, the Bosnia-Herzegovina Helsinki Committee, recently reported that despite the progress that has been made in settling property claims in the decade since the end of the war, Bosnia is still highly segregated and can still be accurately described as being ethnically cleansed (Ó Tuathail & O’Laughlin, 2009). Much of this is likely due to the fact that minorities that win property claims often do not return to their old residence, but instead sell or lease the property in order to live in friendlier territory (Ó Tuathail & O’Loughlin). This illustrates the practical limitations that the international community faces in implementing Annex VII of the Dayton Accords: while a concerted international effort was able to overcome challenges on the ground to process the property claims from the war, the mission of reintegrating Bosnia is entirely different, and will likely require generations of stability and de-escalation of ethnic tensions before the spirit of Annex VII can become a reality.
In the end, the obstacles to handling the return of refugees faced by the CRPC were overcome by moving away from the idea of implementing change through mandates from an international body and bypassing domestic institutions and moving toward closer coordination between international and domestic organizations. This supports the idea that state reconstruction requires coordinating top-down efforts with bottom-up efforts of building institutional capacity, providing international oversight for domestic institutions, and bringing accountability and assistance to the local organizations that are tasked with implementing policies (Fukuyama, 2004). A similar dynamic has unfolded in the prosecution of war criminals in Bosnia, another key hurdle to clear in the process of state reconstruction. Rather than relying solely on the international prosecutorial body that was set up by the UN (the ICTY), international organizations have worked hand in hand with domestic legal institutions to develop a hybrid justice system that has been very successful in clearing the caseload of crimes committed during the war and building up domestic capability in enforcing the rule of law (Ivanisevic, 2008).
In both cases, the key to overcoming the challenges that threatened the implementation of the state reconstruction process was adjusting to the conditions on the ground and finding solutions that were better catered to the situation at hand. Only by changing the nature of intervention to a system better suited for the specific task could the international community turn the commitment of resources and political will into positive steps toward rebuilding.
The Pitfalls of Unresolved Ethnic Tension
Ethnicity was a central aspect in both the the outbreak of the Bosnian civil war as well as in the more deplorable aspects of the fighting that broke out, and continued to be a critical issue even when the Dayton Accords stopped the active combat. At the same time, though, it is important not to reduce the complex dynamics that touched off the bloody conflict into something as basic as what Samuel Huntington (1993) termed a “clash of civilizations”, with the conflict being wholly explained as a cultural clash between Serbs representing the Orthodox East, Croats representing Catholicism and the West, and Bosniaks representing the western frontier of the Islamic world. As often as not, ethnic nationalism was cynically invoked in order to justify the pursuit of ulterior motives, both among the upper leadership (who used ethnic nationalism to justify the carrying out of their plans for territorial expansion) as well as by opportunistic criminals fighting on the front lines (who used the ethnic conflict as a way to justify indulging in their desires to rape, loot, pillage, and kill) (Andreas, 2004).
While ethnic grudges were certainly not the only cause of conflict in Bosnia, ethnic nationalism (cynically invoked or not) was and still is a major factor in the political landscape, and a major impediment to the reconstruction of democratic institutions. The first elections in Bosnia’s history in 1991 saw nationalist parties (allied with the secessionist political parties that rose to power in Croatia and Serbia) sweep into power, catalyzing the region’s descent into war (Ó Tuathail & O’Laughlin, 2009). Even more surprising was the fact that in the first elections after the end of the Bosnian civil war, the very same parties (and most of the wartime politicians) were re-elected, a strong indication that the ethnic aspect of the Bosnian conflict had not ended with the cessation of fighting (Hulsey, 2010). This undercurrent of unresolved sectarian tension has posed a serious threat to the reconstruction project in Bosnia, particularly in the efforts to enact economic reforms without exacerbating ethnic tensions and the efforts to build stable and lasting democratic institutions while under an interim international authority.
The prospect of EU membership represents one of the most powerful tools available in ensuring that a permanent peace is brought to Bosnia at the end of the reconstruction process. By gaining access to a high level of economic security and prosperity, regional interdependence, and membership in the shared normative value system of Europe, Bosnia stands a strong chance of being in a position to put the war behind it and start over with a clean slate (O’Brien, 2006). Unfortunately, the required steps toward EU membership have had a negative impact on the state of ethnic nationalism in domestic politics. Because the EU has a very strict set of economic and political reforms that must be put into place in order to stay on track for membership, as all political debate has been halted on economic and policy issues. As a result, the political discourse in Bosnia has shifted to solely focus on populist rhetoric (Chivvis & Dogo, 2010), which in Bosnia naturally means the rise of inflammatory ethnic nationalism (Hulsey, 2010). In effect, the economic reforms that have been put in place in pursuit of the higher goal of EU membership have had the inadvertent consequence of polarizing and radicalizing domestic democratic politics, which in turn has deepened the rift between ethnic groups and destabilized the fragile balance of peace (Chivvis & Dogo, 2010). This illustrates how pushing too strongly for one aspect of reconstruction (even one as widely-acknowledged as positive such as EU membership) without paying attention to the unique domestic situation can often have strong, counterproductive effects. Given the radicalizing trend associated with cutting off domestic political debate on economic reform, it is critical for the international community to ensure that the economic reform is done at a sustainable pace that does not disrupt other key areas of reconstruction, such as democratic development and abatement of ethnic tensions.
Another area where the prevalence of ethnic nationalism in politics has challenged the process of state reconstruction by the international community has been in the expansion of the power of the provisional international authority in response to the dangerous levels of incendiary populist ethnic rhetoric in Bosnian democratic politics. Originally set up through the Dayton Accords as an advisory and monitoring body, the Office of the High Representative (OHR) was authorized to take on more authority in 1997 in response to unsafe levels of violent ethnic rhetoric in Bosnian political institutions and hateful propaganda being broadcast from a major radio station in the Serb-controlled Republika Srpska region (Dobbins et al., 2003). The OHR responded to this crisis by asserting its newfound powers and dismissing politicians, aggressively rooting out corruption in the judiciary, and taking advantage of its ability to directly enact legislation while bypassing the democratic legislature (Knaus & Martin, 2003). While many of these steps helped to alleviate the ethnic tensions in the country and quickly addressed growing problems, doing so required severely undercutting the democratic institutions in Bosnia. Today, the OHR is still the ultimate authority in Bosnia, despite having no accountability to Bosnian taxpayers and voters and, even more importantly, very few if any established checks and balances on its power, an arrangement that shares fundamental similarities with British colonial rule in India under the Raj (Knaus & Martin). While this comparison may not be entirely apt (it is worth noting that the main purpose of the Raj was to oversee the extraction of wealth from India to Britain, while the raison d’être of the OHR is to bring oversight and accountability to the billions of dollars of aid flowing into Bosnia from the international community) (The viceroy rules, 2003), there is an inherent tension between the critical reconstruction step of rebuilding self-sustaining democratic institutions and the international community’s desire to prevent ethnically-charged politics from tearing apart what has been painstakingly built up in Bosnia since the end of the war.
In both of these situations, the ultimate lesson to be learned is that unique situation in a post-conflict state can cause the implementation of a reconstruction plan to have unintended negative consequences. In Bosnia’s case, the strong latent ethnic tension in the country caused advances in economic reforms to indirectly damage the peace between the ethnic groups and the stability of domestic political institutions. Similarly, efforts to reign in corruption and violent rhetoric ended up stifling the development of democracy in Bosnia by greatly removing power from domestic authorities in favor of a more powerful and capable international body that was unaccountable to the Bosnian people. Only by fully understanding and accounting for the challenges posed by the ethnic strife in Bosnia can these negative consequences be minimized and sustainable progress made on all of the major fronts of post-conflict reconstruction.
Organized Crime, Economic Growth, and a Growing Humanitarian Crisis
While the three years of war in Bosnia had a devastating effect on the country’s people, political institutions, and economy, there was one area that benefitted incalculably from the lawlessness, corruption, and power struggles: organized crime. Ethnic nationalism, rhetorically inflammatory politics, and contests for power in post-communist Yugoslavia might have been the driving forces behind the outbreak of conflict in the region, but the actual perpetration of the war was fundamentally criminal in nature (Haynes, 2010). On the Serb side, hardened criminal bosses were armed and financed by the Serbian government to form paramilitary groups to do their bidding in Bosnia (in order to retain a thin veneer of deniability on the government’s part). One particularly notorious example was Zeljko “Arkan” Raznatovic, a nine-time prison escapee on Interpol’s most wanted list who built a criminal organization in Belgrade that was later repurposed as a paramilitary group to conduct ethnic cleansing, pillage, rape, intimidation, and murder in Bosnia to clear the way for Serb expansion (Andreas, 2004). Similarly, Bosniaks and Croats, who did not have an army or any organized paramilitary groups, relied on criminals and local strongmen to hold off Serb advances during the war, particularly in the early phases when heavily armed and organized Serb paramilitaries swept through the country. During the siege of Sarajevo, local gangsters like the infamous racketeer Jusuf “Juka” Prazina were almost singlehandedly responsible for keeping the city from falling, first by providing security and armed resistance during the initial siege and later on by coordinating elaborate and expansive smuggling operations to bring weapons, ammunition, and food provisions into the city past the Serb blockade (Andreas, 2004).
Criminal enterprises became fantastically wealthy off of the war, whether it was from looting and pillaging done on campaigns of ethnic cleansing (as Raznatovic did), cornering the market on black market smuggling (as Prazina did), or general war profiteering through sales of arms, ammunition, or gasoline. Given the fact that all other economic activity had ground to a halt during the war as unemployment skyrocketed over 70% (Haynes, 2010), criminal activity had nearly consumed the entirety of the Bosnian economy by the end of the conflict. The surge of wealth and power of criminal organizations in post-conflict Bosnia hampered post-conflict reconstruction efforts, both by corrupting domestic political institutions as well as blocking the possibility of developing a prosperous legitimate post-war economy. International efforts in post-conflict reconstruction compounded this problem by failing to take into account the endemic corruption and unrestrained power of the black market while trying to instantiate political and economic reforms. As a result, even more power was ceded to the Bosnian criminal element, which in turn has led to the development of an ongoing humanitarian crisis in Bosnia as it has become a central hub for human trafficking in the international sex trade (Dawson, 2008).
The political system in Bosnia has been under constant threat of being consumed by organized crime since the early days of the war. The Faustian deals that were made (by all parties to the conflict, as noted earlier) by giving gangsters, thugs, and criminal bosses free reign to use military force and open vast and elaborate smuggling rings to keep supply and weapons lines open went predictably awry in the post-conflict phase, as war profiteering criminals proved to be very reluctant to give up the nearly-unrestrained powers that had been delegated to them during the fighting. While some of the more notorious criminals were chased out of the country (or worse – Raznatovic was gunned down in a Belgrade hotel, while Prazina was found murdered in Belgium), many criminal war profiteers stayed around in Bosnia, turning the capital raised from criminal activity during the war into political capital in the post-war environment (Andreas, 2004). With an enormous amount of political clout available to powerful criminal organizations, it is no surprise that Bosnia faces a long uphill battle in addressing corruption in its political institutions.
By failing to grasp this reality, the international community compounded the problem by enacting counterproductive economic reforms in post-conflict Bosnia. The lack of any (legitimate) economy in post-war Bosnia, combined with the fact that the state was emerging from years of being run under the communist system meant that there was no stable tax base in place for the new Bosnian government to finance itself. Taking a page from the state reconstruction template, the international community made a strong push for the Bosnian government to find revenue sources quickly in order to build up its revenue and, in turn, its capacity. With no prospects of raising money through taxation, the government instead turned to rely heavily on the only other available source: customs duties (Dobbins et al, 2003). While generally a reliable way for a fledgling government to raise much-needed funds, import tariffs were hopelessly unenforceable in post-conflict Bosnia, which boasted one of the most elaborate and powerful illicit smuggling industries in the world after years of dependence on the black market for its very survival. By placing a steep duty on legitimate imports, the Bosnian government succeeded in creating even more incentive and demand for these smuggling networks to expand.
This had damaging effects on Bosnia’s prospects for reconstruction in two areas. First, the explosive growth in smuggling deprived the government of untold millions of dollars in potential revenue. One high-profile hub of smuggling was the Arizona Market in the border town of Brcko, a trading outpost that was set up in part with donated international funds (the US pitched in $40,000 for its creation) on the hope that bringing Serbs, Croats, and Bosniaks together through commerce and trade would ease ethnic tensions and foster reconciliation (Haynes, 2010). As customs duties soared, the Arizona Market eventually became the focal point for all smuggling activity in the area, with every conceivable type of contraband finding its way into the crowded market stalls (Haynes). Ultimately, the push by the international community to have the Bosnian government raise tariffs greatly empowered the smuggling organizations that already had taken control of most, if not all, of the economic activity in Bosnia. The war-time smuggling operations set up to bring in weapons, ammunition, and food supplies simply switched its efforts to more conventional, peacetime types of contraband: stolen cars, drugs, bootlegs, and prostitutes (Andreas, 2004).
The last aspect is certainly the most troubling and problematic for the reconstruction of the state. The abuses that are carried out against girls and women trafficked through Bosnia in the global sex trade are both well-documented and abhorrent (Dawson, 2008). Today, the conditions of these women in Bosnia has reached the level of a humanitarian crisis, which has deeply undercut efforts to push through reforms that will make Bosnia a stable and accepted member of the international community (Haynes, 2010). This dark aspect of post-conflict reality in Bosnia illustrates the host of evils and social ailments that come with having an economy that is heavily reliant on the criminal element.
Recommendations Looking Forward
The main recurring theme of the reconstruction of Bosnia in the aftermath of the civil war of 1992-1995 has been trial and error, as the international community has been repeatedly pushed into adapting to the unique circumstances of the specific project as problems arise that challenge the traditional tools of statecraft and post-conflict resolution. In some cases, the international community has been flexible and adaptive, and been able to change course upon discovery of unforeseen problems. In other cases, the generic template of top-down state reconstruction has resulted in the construction of inefficient and ill-adapted systems that hamper the possibility of Bosnia reaching full political, economic, and security reconstruction. Ultimately, the difficulty of custom-tailoring a rebuilding strategy to the individual problems and dysfunctions of each post-conflict state is what makes post-conflict reconstruction such a difficult and elusive task.
That being said, Bosnia can nonetheless be considered a success story, particularly when compared to other ongoing reconstruction projects in Afghanistan and Iraq. Unfortunately, it is not immediately clear how much of the (relative) success in Bosnia can be meaningfully applied to other reconstruction efforts. One thing that has clearly emerged from Bosnia is the importance of taking into account the unique features of each post-conflict state, an important lesson, considering that a major contributor to the initial setbacks in Iraq and Afghanistan was a general lack of understanding of domestic politics, economics, and cultural norms. In many senses, the reversal of the course of the Iraq reconstruction effort was largely due to the international community obtaining a deeper understanding of the political dynamics that motivated the Sunni insurgency and, after reforming its strategy to account for the situation on the ground, convincing Sunnis in Anbar Province to switch allegiances and support the Western-led government (McCary, 2009). A similar approach seems to be necessary in Afghanistan, although it is yet to be determined if the very different cultural, political, and economic conditions there will permit something similar to succeed (West, 2008).
On the other hand, the uniqueness of each post-conflict situation also ensures that there is a limit to the amount of transferability there is of successful aspects of reconstruction. What works in Bosnia will not necessarily work in countries with 8-12 times the size of it with 8-9 times as many people (as Iraq and Afghanistan are), particularly considering the hard constraints on resources, personnel, and political will that exist in the international community. The 60,000 peacekeepers and $15 billion in international aid that were committed to Bosnia is, person for person, four to five times larger than the highest levels of commitment to Iraq and Afghanistan (Chivvis & Dogo, 2010), so the sheer amount of force and attention that the international community poured into Bosnia simply cannot be replicated in countries that are substantially larger. In light of this, it is important to constrain expectations about what is possible in reconstruction efforts with highly limited resources, particularly considering the troubles that Bosnia has faced while enjoying the benefit of an open-ended commitment of time, money, and will from the international community (McMahon & Western, 2009).
Ultimately, the success or failure of international efforts in state reconstruction projects is determined by the international community’s ability to identify and adapt to state-specific realities that challenge the generic template for rebuilding. The greatest breakthroughs in post-conflict resolution, both in Bosnia and elsewhere, have come as a result of discovering how to make sustainable reforms to economic, political, and democratic structures while accounting for the unique nature of every post-conflict situation. Similarly, international efforts that do not take into account the individual maladies of each post-conflict state often serve to unintentionally deepen the very problems that pushed them into conflict in the first place. Only through careful consideration of ground-level realities can the international community custom-fit a reconstruction strategy that stands the best chance of moving post-conflict states forward into a secure, prosperous, and stable future.
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Figure 1. Ethnic makeup of Bosnia and Herzegovina in 1991, before the civil war. While there are clear ethnic enclaves, the end result is a relatively diverse and intermixed population, particularly when compared to the post-war makeup in Figure 2 (Kreso, 2008).
Figure 2. Breakdown of ethnic segregation from 1998, three years after the official end of the Bosnian civil war. The ethnic divisions are very stark, with the entire Republika Srpska dominated by Serbs, with the rest of the country split decisively between Croat and Bosniak enclaves, with few mixed areas surrounding major cities (Kreso, 2008).
 For the sake of space, the country of Bosnia and Herzegovina and its divisions of the Federation of Bosnia and Herzegovina and the Republika Srpska will be collectively referred to as just “Bosnia” throughout this paper.
 Although, in fairness, the growth of the international sex trade in Bosnia is not entirely the fault of Bosnians. International military forces and aid workers are frequent patrons of the sex trade, and as such bear some responsibility for its existence (Haynes, 2010).
I wrote this write before the official handover of sovereignty to South Sudan. At the end of my research, I felt anxious that the split had the potential to break into outright warfare. Although a large-scale war didn’t break out, persistent violence and continued immiseration ruled the day.
On January 9, 2005, delegates from the Sudanese government and the Sudanese People’s Liberation Army (SPLA) signed the Comprehensive Peace Agreement (CPA), bringing an official end to a 22 year-long civil war in Sudan (Blume, 2005). The CPA was a the product of years of extensive negotiations between the two fighting parties, and laid out a bold and ambitious roadmap to bringing about a final and lasting peace to a country that had been torn apart by war for almost its entire post-colonial existence. Against all odds, the fragile peace laid out by the CPA has held together for nearly six years, building up to the final piece of the agreement: a referendum on the creation of an independent state in South Sudan scheduled to be held in January of 2011.
The peace process in Sudan has been remarkable in its longevity, particularly in a region of the world where peace treaties rarely amount to more than temporary cease-fires that are immediately broken once the fighting parties have time to rearm. The failures of peace accords like the 1999 Lusaka treaty in the neighboring Democratic Republic of Congo (Grignon & Kroslak, 2008) and 1993 Arusha Accords in nearby Rwanda (Barnett, 2002) (not to mention the unraveling of previous peace accords that started Sudan’s 22 year civil war) are just a few examples of the litany of failed efforts at building a lasting peace out of intrastate conflicts in Africa. If the CPA is able to “go the distance” to the independence referendum and beyond and prevent a relapse into yet another civil war, it will be a remarkable and nearly-unprecedented achievement in peacemaking in the modern era. However, Sudan is still in a very precarious situation, and there are countless threats that could cause the CPA to unravel very quickly. In order to truly understand the magnitude of the accomplishments of the CPA (as well as what is at risk of being lost if it falls apart), it is necessary to look at the historical context of the peace agreement, the tireless efforts of international organizations, foreign countries, NGOs, and the Sudanese people themselves in implementing and adhering to the agreement, and the numerous obstacles and challenges that have threatened and continue to threaten its ultimate realization. There is a considerable amount at stake in the upcoming months in Sudan. A successful referendum and a continuation of the peace between the north and south will make the CPA the model for unwinding decades-long civil wars in Africa, while a collapse into continued fighting will leave the international community and the Sudanese wondering what else could have been done.
Background: Perpetual War in Sudan
War has been a nearly constant state of affairs in Sudan, largely owing to the sharp cultural, ethnic, and religious divide between the north and south of the country. The north (which includes the Sudanese capital, Khartoum) is dominated by Muslims of Arab descent, while the south consists predominantly of black Africans who tend to be Christian or practice tribal animist religions. This division is also mirrored in the geography of Sudan, which is sharply split between the arid Sahara in the north and the green savanna and jungles of the south (Teague, 2010). The tensions between these two groups play out on both the larger political scale (with a history of exploitation by the northern-dominated government in Khartoum) as well as on the local level (with regular fighting over land and resources between semi-nomadic northern herders and sedentary agrarian southerners in the borderlands).
By the time Sudan achieved its independence in 1956, these tensions had already broken out into a full-fledged civil war between North and South Sudan. 17 years of intense fighting and half a million deaths later, the parties signed the Addis Ababa peace accord in 1972, which promised to bring greater autonomy to South Sudan in exchange for a cessation of hostilities (Deng, 2005). An uneasy peace ensued, with very little tangible progress made toward the promise of implementing southern autonomy. In 1983, after an Islamist government rose to power in Khartoum, the entire peace process came apart. Efforts by the Sudanese government to impose shar’ia law in the south as well as a project to build a canal that would have exploited the southern water supply for the benefit of the northern provinces sparked off another full-fledged rebellion in the south (van der Lijn, 2008). Southern rebels organized into the SPLA and launched a civil war against the Khartoum government that dragged on for 22 years, resulting in 2 million deaths and leaving over 4 million people displaced (Garfield, 2007).
The Comprehensive Peace Agreement
Twenty years into the fighting, both sides to the conflict became aware of the mutually hurting stalemate that the war had degraded into, as the numbers of dead and displaced in Sudan reached staggering heights (Blume, 2005). In 2002, delegates from the Sudanese government and the SPLA began an intensive round of negotiations to search for a political solution to their long-running dispute. Under the auspices of the Intergovernmental Authority for Development (IGAD), an international organization of East African states, the fighting parties spent three years working out the Comprehensive Peace Agreement, which was finally signed on January 9, 2005 in Nairobi, Kenya (Halsie & Borchgrevink, 2007).
In addition to authorizing the cease-fire that brought an end to the Second Sudanese Civl War, the CPA also provided a long-term roadmap for reconciling the north and south and building a permanent peace in Sudan. On the political front, it called for an entirely new government to be set up in Sudan, the Government of National Unity (GoNU), with seats allocated to both the SPLA (specifically to its political wing, the SPLM) and the current Sudanese government (which became the National Congress Party) (What went on in Sudan, 2010). Economically, the CPA addressed the inequality and exploitation of the south by guaranteeing a more equitable divide of oil revenue, which was previously directed disproportionately to the north by the government in Khartoum despite that fact that an overwhelming majority of the oil produced in Sudan comes from the south (Halsie & Borchgrevink, 2007). Finally, the CPA provided a tangible path to autonomy for South Sudan, beginning with the establishment of a semi-autonomous government in the south (the Government of South Sudan – GoSS) and culminating in national elections in five years and a referendum in six years giving South Sudan the option of independence.
The CPA laid the groundwork for a roadmap to lasting peace in Sudan, but the real hard work had just begun when the peace treaty was signed. In order to clear the way for the national elections and independence referendum, a myriad of incremental steps needed to be taken to wind down the fighting in Sudan, disarm and demilitarize the border areas, work out agreements over resources and income (particularly related to oil, the most valuable resource in the country), and build up national reconciliation that would prevent the country from backsliding into another civil war. Accomplishing this required the dedicated efforts of the Sudanese as well as a robust amount of support from the international community. While the process has been halting and fraught with setbacks and tough decisions, the CPA has remained on track to date despite the wide variety of obstacles it has confronted since its inception.
Involvement of the International Community
A major factor in the longevity of the CPA and the fragile yet lasting peace in Sudan has been constructive involvement by the international community. At nearly every step of the way, international organizations, foreign governments, and NGOs have been there to assist in both the implementation of the accords as well as in holding all of the parties accountable for their role in the peace process. From moderating the initial negotiations and signing of the peace agreement to assistance in rebuilding post-civil war society all the way up to the national elections of this year, the international community has played a major role in keeping Sudan on track in implementing the CPA.
International Assistance Supporting the CPA
In 2002, when both war-weary sides began to open up to the idea of bringing an end to the civil war, IGAD took the lead in arranging and coordinating the extensive set of talks that led up to the CPA (Halsie & Borchgrevink, 2007). During the negotiations, the parties appealed to the United Nations for assistance in exploring options for a final peace settlement. The UN responded by authorizing two separate missions, the UN Advance Mission in Sudan (UNAMIS) and the Joint Assessment Mission (JAM), to investigate and report on the prospects of a lasting peace in Sudan. UNAMIS was a political mission that came up with recommendations for solutions to be implemented in the final peace agreement (van der Lijn, 2008), while JAM was a put together by the UN and the World Bank (and chaired by Norway) to investigate the financial and economic aspects of the peace settlement (Halsie & Borchgrevink, 2007). After the agreement was finalized, the international community demonstrated its commitment to peace in Sudan by providing a strong presence at the final signing of the CPA, with five major international organizations (IGAD, the AU, the EU, the League of Arab States, and the UN) and a number of regional and international powers (Kenya, Uganda, the Netherlands, Italy, the UK, and the USA) signing on as witnesses to the final accords (Deng, 2005).
Following the signing of the CPA, the UN Security Council passed Resolution 1590 authorizing the UN Mission in Sudan (UNMIS), a Chapter VII peacekeeping operation tasked with the mission of monitoring and assisting in the implementation of the CPA, coordinating the return of refugees and internally displaced peoples, assisting in land mine removal, and protecting human rights in the region (van der Lijn, 2008). UNMIS has been a constant presence in the region since the signing of the CPA, and has since scaled up to include over 10,000 troops, observers, police, and civilians in the region (van der Lijn). While it has faced criticism for its lack of mandate, resources, and staffing to meaningfully assist in the crucial mission of providing security in Sudan (Small Arms Survey, 2008), it has nonetheless succeeded in its most important tasks: ensuring that the CPA stays on track and preventing the country from backsliding into yet another civil war.
Building of Security Forces and the Child Soldier Issue
Another key area of international support has been financial and military assistance in developing security forces in South Sudan. A key requirement for the ultimate success of the CPA is enhancing the security situation in Sudan, a particularly daunting task given the country’s generations-long history of warfare. Building up a professional army and police force in South Sudan, disarming the heavily-militarized zones on the border with the north, and mitigating any flare-ups of violence are essential to the future of peace in Sudan, and financial and military aid from outside parties a critical aspect of the transition from armed rebellion to peace (particularly since UNMIS provides very little assistance in enforcing security). Unfortunately, this also presents difficult issues about priorities, particularly concerning human rights and the issue of child soldiers. Throughout the civil war, the SPLA regularly utilized child soldiers in its insurgency against the Sudanese government, and progress in demilitarizing, disarming, and reintegrating the 1,000 or so children in their ranks has proven to be a slow and difficult process (Fick, 2010). Rather than cutting military assistance funding to Sudan as required by domestic law, the United States has instead opted to make a special exception to its anti-child soldier laws for Sudan, acknowledging that providing funding and support for the fledgeling South Sudan defense forces is ultimately more important for the future of the country than enacting punishments for the use of child soldiers (Fick, 2010). This decision has drawn the ire of human rights NGOs and the UN alike, and illustrates the number of difficult moral decisions that have been made in order to preserve and protect the CPA (Rogin, 2010). To reach its ultimate goal of bringing peace to Sudan through the CPA, the international community has been forced to confront the costs and drawbacks associated with doing so, and strict enforcement of human rights issues is often the first casualty.
In April of 2010, a year behind schedule, Sudan fulfilled a critical piece of the CPA by holding its first national elections in 24 years (What happened in Sudan, 2010). Due to the historic nature of the election and the central role of democratic transition in the implementation of the CPA, the international community was very active in monitoring and supporting the process. International organizations such as the EU, AU, and Arab League all maintained a presence in the country, as well as foreign countries like Japan and Russia and a host of NGOs, particularly the Carter Center (Sudan’s rigged elections, 2010).
Not surprisingly, there were widespread allegations of intimidation and fraud among all of the major parties, and fears of violence by groups seeking to scuttle the peace process were persistent throughout the country (Lynch, 2010). Similarly, there were accusations that the ruling NCP had manipulated the pre-election census (which was mandated by the CPA) in order to gerrymander voting districts and alter the ethnic demographics of contentious regions (Sudan’s rigged elections, 2010). This was particularly evident in Darfur, where census workers went out of their way to account for all of the nomadic Arab tribes in the region while not counting any of the 2.6 million Darfuris in displacement camps due to security reasons (a group that NCP President Omar al-Bashir was unlikely to garner any support from, considering he had recently been indicted by the International Criminal Court for war crimes and genocide against them) (Sudan’s rigged elections).
Similarly, there were a number of logistical problems in conducting nationwide elections in a large country with limited infrastructure. Many villages in Sudan are only accessible by foot or helicopter, so getting ballots to and from these remote regions proved to be a serious challenge (Lynch, 2010). As election day approached, some of the international observers suggested that the elections be pushed back in order to ensure everything was conducted freely and fairly (Lynch). Both sides reacted negatively to the idea, particularly the SPLM, who saw any further delay in the elections as a threat to the 2011 independence referendum, and the elections ultimately went through as scheduled.
Despite the logistical, political, and security problems faced by a war-torn country taking its first step into democracy in a generation, the Sudanese general election was relatively successful, and was ultimately deemed to be “largely peaceful” by the Carter Center and other international observers (What went on in Sudan, 2010). President Omar al-Bashir easily won re-election, garnering 68.29% of the vote, while the SPLM maintained their nearly uncontested control in the South Sudan government by capturing 92.99% of the vote (What went on in Sudan, 2010). In the end, the general consensus was that the elections, while falling far short of being completely “free and fair”, were an important step forward for Sudan, and a strong indication that the CPA was alive and well.
Obstacles and Threats to the CPA
Despite the great progress that has been made due to the dedicated efforts of the international community and the Sudanese people, the CPA still exists in a precarious position. A single flare-up of violence can undo years of positive work toward peace and send the entire country spiraling back into civil war. While there are countless flashpoints in the newly reconstructed Sudan that could cause the ultimate unraveling of the CPA, three issues stand out as the most dangerous threats to the peace. First and foremost is the issue of Sudan’s oil fields, particularly the issue of fairly dividing oil revenue between the two regions and the ownership of the oil fields in the disputed border area between north and south. Second, the CPA only includes two parties (the Sudanese government and the SPLA), while the civil war featured at least 17 other splinter groups and armed factions that now have to be integrated into the new Sudan and disarmed (Blume, 2005). The past five years has shown that both of these tasks are very difficult, and often lead to outbreaks of violence, any one of which could spark off a reversion to civil war. Finally, the ongoing humanitarian crisis in Darfur has introduced an entirely new set of complications into the mix. Implementing an ambitious plan like the CPA is a difficult task even under ideal conditions, and adding in a separate rebellion, mass displacement, genocide, and an indictment of the sitting president by the International Criminal Court makes the entire prospect even more arduous. If the CPA does succeed in building a lasting peace in Sudan, it will do so by overcoming tremendous adversity, long odds, and an overwhelming number of factors that have been constantly tugging the country back toward civil war.
Resource Issues in the Boundary Lands
Competition over resources has been a central theme in the ongoing conflict in Sudan, the most vital of which is the lucrative oil reserves that are clustered in southern and central Sudan. During the civil war, oil production in Sudan ground to a halt due to security problems and sabotage, but the peace brought on by the CPA has allowed the operation to ramp up production to 480,000 barrels of oil a day (Sharife, 2009). The estimated 500 billion barrels of oil reserves in the region are now the lifeblood of the Sudanese economy, providing about half of the entire GoNU’s revenue (and fully 93% of the revenue for the government in South Sudan) (D’Agoôt, 2009). This lucrative industry has escalated tensions between north and south. While 85 percent of the oil is produced in South Sudan, nearly the entire infrastructure for piping, shipping, and refining the oil lies in the north, as well as the administrative center for dividing up the profits in Khartoum (Sharife, 2009). While the CPA laid out a full set of rules for the equitable distribution of oil profits, there is still evidence of widespread corruption, fraud, and theft of oil profits in Khartoum by northern factions (D’Agoôt, 2009).
More importantly, the issue of oil has disrupted the process of resolving the disputed border between north and south Sudan. Because of the rich oil fields in many of the border regions (particularly the Nuba Mountains and Abeyi area), both sides have been hesitant to fulfill their CPA obligations and draw down their military presence in these areas (Small Arms Survey, 2008). The two sides attempted to resolve this dispute by enlisting outside help, submitting the issue to the neutral Abeyi Border Commission (ABC). However, when the final report submitted by the ABC proved to be unfavorable to the north, they immediately rejected the findings and have continued to contest the boundary (van der Lijn, 2008). Needless to say, the escalation of tensions due to resource issues, particularly in the highly militarized border lands that have seen the bulk of the fighting during the civil war, poses a serious threat to the shaky peace in Sudan, and any violent clash in the region could very possibly set off another round of fighting.
The Problem of Outstanding Armed Factions
For all of its sweeping ambitions for the future of Sudan, the CPA is ultimately an agreement between just two parties – the Sudanese government and the SPLA. While the SPLA rebels and the government were the two key adversaries in the Sudanese civil war, they were by no means the only major groups involved in the decades-long conflict, and certainly not the only armed factions. The task of disarming and integrating the wide variety of splinter groups, regional rebel movements, and civilians who took up arms for their own protection has been left to the security forces in the new Sudan, and has proven to be a difficult and perilous task.
Just months after the CPA was signed, the SPLA’s charistmatic leader, Dr. Joseph Garang, died in a tragic helicopter accident, a major catastrophe that threatened the unity of the SPLA and the prospect of the southern forces cooperating with the new peace agreement (Deng, 2005). Garang had been an integral part of the entire CPA process, and his diplomatic skills and willingness to negotiate and work with the Sudanese government, combined with the trust and legitimacy he had in representing the SPLA, seemed irreplaceable. Fortunately for the peace process, his successor, Salva Kiir, was able to continue the work of uniting southern factions around supporting the CPA. In fact, Kiir was responsible for a major step forward in bringing the various armed groups in the south into the CPA by issuing the Juba Declaration in 2006, which officially reintegrated many of the various groups that had splintered off of the SPLA during the civil war back into the fold (Small Arms Survey, 2007). In some ways, Kiir’s rise to power was actually beneficial to the survival of the CPA, since many of these groups had split off from the SPLA due to distrust of Garang’s close relationship with the government in Khartoum (van der Lijn, 2008).
While the Juba Declaration marked a major step forward in addressing the problem of the large number of armed groups outside of the CPA, there were still major logistical problems in the actual act of disarming, demilitarizing, and establishing security in the areas previously held by these various factions (Garfield, 2007). This was particularly evident in the project to disarm the Jonglei area in South Sudan, one of the first efforts in disarmament after the Juba Declaration. In Jonglei, SPLA forces attempted to to use coercive means to seize the weapons in the region by force, which violently backfired when the villagers resisted and began to fight back against the security forces (Garfield, 2007). The prolonged fighting in Jonglei also produced serious secondary effects, as the extended military operation there led to widespread food shortages, looting, and civil unrest (Small Arms Survey, 2007). There was even an incident of a newly-disarmed village being raided by neighboring tribe, who seized the opportunity to loot, kill, and settle scores with their defenseless rivals (Fick, 2010). All told, some 3,000 weapons were seized in the six month campaign in Jonglei, but over 1,600 people (including over 200 civilians) were killed in the fighting and civil violence that ensued (Garfield, 2007), a result that bode poorly for the prospect of meeting the CPA’s mandate for a peaceful and timely disarmament of the various armed factions in Sudan.
After the disastrous events in Jonglei, a new approach was taken toward demilitarization. In the nearby Akobo region, security forces tested a new strategy of voluntary disarmament, which was done in coordination with UNMIS and the UN Development Program (who had not provided any assistance in Jonglei because the coercive nature of the disarmament process fell outside of the mandate and capability of the UNMIS mission) (Small Arms Survey, 2007). The voluntary program was completed with very little violence, although it was likely less effective than the coercive campaign, with only 1,126 weapons seized (Garfield, 2007). The results seem to illustrate that voluntary disarmament campaigns are more effective at demilitarizing contentious regions without any bloodshed, although the willingness of people in Akopo to go along with the disarmament was undoubtedly influenced by the chilling events they had witnessed in Jonglei earlier in the year. In a sense, then, the voluntary disarmament in Akopo was successful largely because of the implied threat of what would happen in the region if the security forces had to escalate to coercive methods, as they had done in Jonglei (Small Arms Survey, 2007).
The Crisis in Darfur and the International Criminal Court
While the negotiations for the CPA were still ongoing, a separate but parallel conflict reached crisis level in Darfur, the region covering the western third of Sudan. While the myriad of political, ethnic, and peacekeeping issues that comprise the heartbreaking humanitarian disaster in Darfur is a topic worthy of its own extensive study, the impact that it has on the fate and future of the CPA is worth noting. The Darfur crisis escalated right when the high-pressure negotiations for formalizing the CPA were being conducted, and posed an existential threat to the peace agreement before it was even signed. Ongoing conflict between Darfuri rebel groups and paramilitary groups trained and armed by the Khartoum government called the Janjaweed reached explosive levels in 2002, as Janjaweed militias (on orders from the government) initiated a severe crackdown in the region that spiraled into a systematic campaign of displacement, murder, sexual violence, and the complete or partial destruction of over 1,500 villages (Aspel, 2009). With over 300,000 killed and 3 million refugees displaced over the following years, western Sudan was thrown into a state of catastrophe at a very inopportune time for the prospects of implementing a new and delicate peace plan.
The situation went from a humanitarian crisis to a political crisis when International Criminal Court (ICC) became involved and opened an investigation into the Sudanese government’s role in the genocide. The ICC was given authority to investigate the Darfur situation following a 2005 UN Security Council resolution (which was necessary because Sudan was one of the handful of countries that did not submit to the jurisdiction of the court when it was created in 2002), and by 2008 announced its intent to pursue a case against Sudanese President Omar al-Bashir (International Crisis Group, 2009). In March of 2009, the ICC released an arrest warrant for Bashir for charges of war crimes, crimes against humanity, and later for charges of genocide (Selective justice, 2009). This in turn set off a political firestorm in a country that was already struggling with the long reconciliation process put in place by the CPA. Bashir’s first move upon hearing of the indictment was to expel 12 international humanitarian groups providing vital services to the 2.6 million displaced peoples in Darfur, convinced that the foreigners in these NGOs had been actively involved in feeding information to the ICC to help build their case against him (Compounding the crime, 2010). As a result of the sudden expulsion of humanitarian aid groups, conditions in the Darfuri refugee camps depleted rapidly, with supplies of clean water running out out and outbreaks of infectious diseases like meningitis (Compounding the crime).
So far, the ICC arrest warrant has done nothing terms of bringing Bashir to justice. He runs no risk of being arrested in Sudan, and has little to worry about from the African Union and League of Arab States, both of whom have protested the ruling (Selective justice, 2009). In fact, Bashir has traveled relatively freely since the warrant was issued, making visits to Eritrea, Libya, Egypt, Somalia, Qatar, and Saudi Arabia and facing no threat of arrest (Selective justice). The only tangible result of the indictment (aside from the sharp degradation of living conditions in the Darfuri refugee camps since the expulsion of aid organizations) is the chilling effect it has had on the political situation in Sudan and the implementation of the CPA. Threatened and insulted by the ICC indictment, the Bashir government has become much less cooperative with the international community and much more reluctant to go through the provisions laid out in the CPA, such as modernizing its repressive laws, settling border disputes, and de-escalating the tensions in the contested border zones (International Crisis Group, 2009).
The entire controversy over the ICC indictment, much like the controversy over Sudanese child soldiers, highlights the inherent tension between the pragmatism and realpolitik required to entice conflicting parties to work productively toward fulfilling their responsibilities in the peace agreement and the moral and ethical duties the international community holds in addressing human rights violations, war crimes, and genocide. On one side, human rights NGOs like Save Darfur have argued that without a strong commitment by Sudan and the international community to ensuring justice and accountability for the crimes in Darfur, no meaningful peace can ever be achieved in the country (Flemming, 2010). On the other hand, the ICC’s intervention has also be viewed as unnecessary meddling in a delicate peace process (made especially pointless by the obvious impossibility of enforcing the warrant) by outside interests that are motivated either by a sense of paternalism or by their own strategic interests in the region (Sharife, 2009). This point is reinforced by previous actions by the international community, notably the arrest of Liberian President Charles Taylor, whose indictment for war crimes was strategically unsealed while he was in Ghana at a negotiation for a peace settlement (Selective justice, 2009). The timing of the arrest sent a strong message throughout Africa that Western-dominated international law organizations were more interested in pursuing their cases than allowing African countries to work out solutions to African problems, a lesson that has not been forgotten in Sudan during its efforts to implement the CPA.
Conclusion: The Road Forward
With the referendum on South Sudanese independence coming in January of 2011, Sudan is coming into the final stages of completing the provisions laid out by the CPA. While the progress has been halting, imperfect, and challenged by several setbacks, the end result is that the main agreements of the CPA have been fulfilled, at least nominally, and civil war has not returned to the country. All conventional wisdom indicates that South Sudan will vote overwhelmingly for independence if the referendum is held. The Obama administration has described South Sudanese independence as “inevitable” (Fick, 2010), and South Sudan is already immersed in making plans for their future as an independent state, including building up infrastructure, attracting foreign investment, and building their own oil refineries (South plans to build, 2010). Whether or not this separation will be peaceful or violent is yet to be seen, and the coming months and years will be a true test of how much of a robust peace was built in Sudan under the CPA.
The CPA has been able to survive up to this point due to tireless efforts by the international community, the active participation of the Sudanese, and a fair amount of good fortune. With the final phase of the CPA in sight, there is still much work to be done to ensure a lasting peace is built in Sudan, as the main obstacles and challenges to peace in Sudan will continue to exist after the final referendum. Undoubtedly, this will require difficult moral decisions and a careful weighing of pragmatic necessities against the higher ideals of human rights and justice. The costs and the risks of preserving peace in Sudan might be high, but if the CPA can go the distance and finally bring a resolution to a generations-long conflict, it will undoubtedly be judged as a worthy effort.
Aspel, J. (2009). The complexity of destruction in Darfur: Historical processes and regional dynamics. Human Rights Review, 10(2), 239-259. Retrieved from Academic Search Premier database.
Barnett, M. (2002). Eyewitness to a genocide: The United Nations and Rwanda. Ithaca, NY: Cornell University Press.
Blume, R. (2005). Sudan: The peace between the pieces. New African, (438), 40-43. Retrieved from Academic Search Premier database.
D’Agoôt, M. (2009). Energy politics and the South Sudan referendum: Anatomy of a resource curse. Middle East Policy, 16(4), 118-130. Retrieved from Academic Search Premier database.
Deng, L. (2005). The Sudan Comprehensive Peace Agreement: Will it be sustained? Civil Wars, 7(3), 244-257. Retrieved from Academic Search Premier database.
Fick, M. (2010). The independence brigade. Foreign Policy, October 29, 2010. Retrieved from http://www.foreignpolicy.com/articles/2010/10/29/the_independence_brigade
Flemming, M. (2010). Why long-term ceasefires will not lead to peace and security in Sudan. Foreign Policy, July 14, 2010. Retrieved from http://mideast.foreignpolicy.com/posts/2010/07/14/why_long_term_ceasefires_will_not_lead_to_peace_and_security_in_sudan
Garfield, R. (2007). Violence and victimization after civilian disarmament: The case of Jonglei. Small Arms Survey, December 2007. Retrieved from http://www.smallarmssurveysudan.org/pdfs/HSBA-SWP-11-Jonglei-violence.pdf
Grignon, F., & Kroslak, D. (2008). The problem with peacekeeping. Current History, 107(708), 186-187. Retrieved from Academic Search Premier database.
Haslie, A. & Borchgrevink, A. (2007). International engagement in Sudan after the CPA. Norwegian Institute of International Affairs (NUPI), January 2007. Retrieved from CIAOnet at http://www.ciaonet.org.library.norwich.edu/wps/nupi047/nupi047.pdf
International Crisis Group. (2009). Sudan: Justice, peace, and the ICC. Africa Report, (152), July 17, 2009. Retrieved from CIAOnet database.
Lynch, C. (2010). Sudan elections put UN, US in awkward spot. Foreign Policy, March 23, 2010. Retrieved from http://turtlebay.foreignpolicy.com/category/topic/sudanSt
Rogin, J. (2010). Cable exclusive: The secret Obama administration memo regarding child soldiers. Foreign Policy, October 28, 2010. Retrieved from http://thecable.foreignpolicy.com/posts/2010/10/28/cable_exclusive_the_secret_obama_administration_memo_on_child_soldiers
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Sharife, K. (2009). Oil politics. New African, (484), 26-29. Retrieved from Academic Search Premier database.
Small Arms Survey (2007). Anatomy of civilian disarmament in Jonglei State. Human Security Baseline Assessment: Sudan Issue Brief, Issue 3 (2nd Ed.), November 2006-February 2007. Retrieved from http://www.smallarmssurveysudan.org/pdfs/HSBA-SIB-3-Jonglei.pdf
Small Arms Survey (2008). The drift back to war. Human Security Baseline Assessment: Sudan Issue Brief, Issue 12, August 2008. Retrieved from http://www.smallarmssurveysudan.org/pdfs/HSBA-SIB-12-drift-back-to-war.pdf
South plans to build three oil refineries after secession. (2010). Sudan Tribune, November 9, 2010. Retrieved from http://allafrica.com/stories/201011100491.html
Sudan’s rigged elections. (2010). International Crisis Group, Policy Briefing, 72, March 30, 2010. Retrieved from CIAOnet database.
Teague, M. (2010). Southern Sudan: A shaky peace. National Geographic, 218(5), 62-89, November 2010.
van der Lijn, J. (2008). Factors for success and failure of UN peacekeeping operations: Theory and the case of UNMIS in Sudan. Conference Papers – International Studies Association, 1. Retrieved from Academic Search Premier database.
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A piece on conflict resolution I wrote about northern Uganda and the LRA. I wrote this in 2010, before Joseph Kony became an international sensation through viral YouTube videos. While it was heartening to see the outpouring of international attention on such a festering humanitarian crisis, the whole campaign seemed to simplify and overlook the important issues in northern Uganda. Plus, the whole thing predictably fizzled out as it exceeded people’s attention span.
For over two decades, the Lord’s Resistance Army (LRA) has been fighting a protracted and shockingly violent rebellion against the Ugandan government in northern Uganda, home to the Acholi people. The cost of the conflict has been incalculable, particularly for the Acholi who find themselves caught in the crossfire between the senseless brutality and banditry of the LRA and the counterinsurgency conducted by the Ugandan government. The magnitude of the humanitarian crisis caused by the fighting in northern Uganda, combined with the shocking savagery of the LRA’s tactics, has prompted efforts from the international community to mitigate, mediate, and resolve this long-standing conflict. Success has been halting on all of these fronts, however, and the fighting continues to rage on and the humanitarian situation for the Acholi remains precarious.
Ultimately, it is unclear to what extent the international intervention in Uganda has actually assisted in mitigating or ending the conflict. In fact, there is evidence that efforts by the international community to fix the problem have actually served to degrade the humanitarian conditions in northern Uganda and prolonged the fighting. International intervention in Uganda, whether it is humanitarian, diplomatic, or military, has proven to be a double-edged sword, with most of its advancements offset by unintended negative consequences. While humanitarian assistance by foreign governments and NGOs has succeeded in preventing total devastation among the displaced refugees who are unable to support themselves due to the fighting, it has also abetted in the indefinite detention of the Acholi people in refugee camps and provided the LRA with easy targets for raids. Similarly, diplomatic efforts by foreign countries and international organizations have been successful in bringing the parties together for talks, but the fact that the LRA has never agreed to any deal (and the strong evidence that it has no intention of ever doing so) illustrates that these talks have only succeeded in buying time for the LRA to rearm itself and extort food and money from the mediators. Finally, while the fight against the LRA has fostered nearly unprecedented military cooperation among regional governments in East Africa, it has also been used to justify extreme militarization in Uganda and permitted high levels of impunity in the government’s counterinsurgency campaign.
The three different approaches to intervention in Uganda – humanitarian, diplomatic, and military – have each contributed to the mitigation of the conflict as well as to its continued existence. While it is unclear what, if any, type of intervention could possibly bring this conflict to an end, the fact that the LRA is entering its third decade of terrorizing northern Uganda and the surrounding countryside in Sudan, the Democratic Republic of Congo, and the Central African Republic illustrates how the best efforts of the international community to date have not been able to sufficiently hasten the end of this immeasurably costly conflict.
Humanitarian Aid: Preventing or Creating a Crisis?
Within ten years of fighting between the LRA and the Ugandan government, northern Uganda reached the point of a humanitarian crisis. While the LRA initially began as a movement of Acholi resistence against the government of President Yoweri Museveni that took power in 1986 (and continues to rule today), the LRA quickly lost support from the Acholi community. Without the ability to recruit or control territory, the LRA turned against the Acholi, resorting to conducting raids against villages to pillage for food and supplies and kidnap children to use as soldiers (while female children were taken as sex slaves). By 1996, the security had deteriorated in Northern Uganda to the point where the entire Acholi population was forced to seek refuge in a number of displacement camps in the area, both due to the risk of falling prey to the violence and kidnapping of the LRA as well as to the indiscriminate counterinsurgency of the Ugandan army. With over a million Acholi internally displaced into refugee camps that were incapable of sustaining themselves (over 1,000 people died per week in the squalid conditions) (Morrison, 2006), Uganda appealed to international aid to address the imminent humanitarian crisis.
The response was relatively swift. The United Nations World Food Programme (WFP) mobilized in December of 1996 to assist the internally displaced people in northern Uganda. Other international aid organizations such as World Vision, Oxfam/Accord, Doctors Without Borders (MSF-Holland), the Red Cross, and UNICEF also joined in the effort, taking on the burden of distributing food, monitoring health conditions, and building schools and vaccination clinics (Branch, 2009). By 2003, $123.6 million had been raised for aid programs in Uganda, and over 100 organizations were on site helping to mitigate the crisis (Branch, 2009). This outpouring of support from the international community prevented the imminent extinction of the Acholi people, and it is unthinkable to imagine what could have happened to the 1.6 million refugees in Northern Uganda who had been cut off from all forms of subsistence by the fighting had it not been for this international intervention.
However, humanitarian intervention in Uganda has also produced a number of unintended negative effects that have served to sustain and prolong the conflict with the LRA and violate the rights of the Acholi in northern Uganda. For one, it has made the displacement of the Acholi into camps a permanent, rather than temporary fixture of the conflict. This in turn grants license for the Ugandan government to conduct its counterinsurgency in northern Uganda with impunity and also creates easy targets for the LRA to attack when it needs food, supplies, or to abduct fresh child soldiers (Wendo, 2002). Furthermore, this permanent encampment has essentially made the entire Acholi population into prisoners, unable to leave the camps due to the dual threats of the LRA and the Ugandan military that treats anyone outside of the camps as an active insurgent (Branch, 2009). The end effect of this is a mass “de-politicization” of the entire Acholi population, a widespread denial of political rights to an entire ethnic group due to their inability to be self-sufficient or to move freely (Branch, 2009). Not surprisingly, President Museveni has been able to hold onto power in Uganda for over 24 years, largely thanks to a lack of any opposition from the northern ethnic groups that he defeated to claim power in 1986 (Quinn, 2009).
While humanitarian aid intervention from foreign governments and NGOs has mitigated the humanitarian devastation in northern Uganda (but not prevented it – over 200,000 have still died from violence and disease since 2000) (Morrison, 2006), it has done so at the expense of other human rights, namely by abetting the imprisonment and political repression of 1.6 million ethnic Acholi.
Diplomatic Talks: Moving Toward Peace or Extortion?
In addition to humanitarian relief, the international community has invested a great deal of time and money in trying to broker a diplomatic solution to the conflict with the LRA. The latest effort was an exhaustive set of negotiations from 2005 to 2008 called the Juba Peace Talks, which was marked by a high amount of international participation. The provisional government in neighboring South Sudan opened up the dialogue by passing on messages after communicating directly with the LRA’s leadership, and the subsequent peace talks were moderated by an international Group of Seven Plus One (consisting of Belgium, Germany, Ireland, Netherlands, Norway, Sweden, the United Kingdom, and Canada) (Quinn, 2009). As negotiations broke down, the development agencies of Canada and Denmark each stepped in with funding for a separate peace summit that eventually brought both parties back to the table (Quinn, 2009). By 2008, an agreement was reached to put an end to the conflict pending the signature of the LRA’s reclusive leader, Joseph Kony. However, the agreement was never signed and the LRA quickly resumed its previous ways of terror and pillaging (Wilkerson, 2010).
Because the LRA has no discernible political agenda or demands (other than to continue their crime spree) and consists primarily of abducted child soldiers who stand no real prospect of integrating into a post-conflict peace, there is little chance it would ever accept a diplomatic settlement to stop fighting (Gettleman, 2010). By the end of the Juba Peace Talks, it became apparent that the LRA was merely exploiting the temporary cease-fire to buy time to rearm and rebuild. In February if 2008, in the middle of the Juba negotiations, the LRA conducted one of its more brutal raids in its new refuge in the Central African Republic, abducting 180 people (most of them children) in order to replenish its thinning ranks of soldiers (Cakaj, 2010). At the same time, LRA delegates were able to able to convince the mediators of the talks (primarily EU countries) to provide the LRA with food and money in exchange for its “cooperation” in the peace process (Wilkerson, 2010), and even went as far as to demand that the $70 per diems the delegates received be doubled in order to help them “keep focused” (Price, 2007). Given the end result of the talks, it is hard to see the entire peace negotiation process as anything but an easy opportunity for the LRA to buy time and space to rearm and replenish their ranks while at the same time extorting money, food provisions and supplies from the international mediators.
The International Criminal Court
International organizations have also taken an interest in the situation in Uganda, with similarly mixed results. After its inception in 2002, the International Criminal Court (ICC) received its very first referral from President Museveni to investigate the actions of the LRA in northern Uganda. In July of 2005, the ICC handed down five indictments for LRA leaders for war crimes and crimes against humanity, which was followed up by a UN resolution in 2006 calling for a resolution to the conflict and for bringing the leadership of the LRA to justice for these war crimes (Quinn, 2009). Not unlike the other diplomatic efforts, the UN and ICC action indicated that the international community had taken notice of the degrading situation in Uganda and joined together in sending a strong message of condemnation of the deplorable acts of the LRA.
Once again, though, the well-intentioned action of the international community ultimately served to undermine efforts to resolve the conflict. Throughout the Juba talks, the only enticement that the Ugandan government could offer the LRA leadership in exchange for peace was a general amnesty for any actions committed during the conflict. However, with the looming ICC indictment, it became impossible for the Ugandan government to ensure immunity for the LRA leaders if a peace settlement was reached, eliminating the only possible incentive the LRA would have for ending the conflict (Cakaj, 2010). As a result, the already slim prospects of a peaceful settlement being reached were reduced to virtually zero, with the only meaningful thing to offer the LRA in exchange for peace (general amnesty for its leadership) effectively taken off the table.
Military Cooperation: The Last Resort
After the failure of the Juba peace agreement and the ICC indictments against the LRA’s leaders, it became apparent that no diplomatic solution was going to resolve the conflict in northern Uganda. This left military action as the only remaining option, as capturing or killing the charismatic leaders of rebel movements has shown to be an effective way of disbanding their organizations, as the recent capture of Liberian strongman Charles Taylor and the killing of Angolan warlord Jonas Savimbi illustrated (Gettleman, 2010). In the aftermath of the Juba talks, both the Democratic Republic of the Congo and the provisional government in South Sudan joined with Uganda to form a joint military force to combat the LRA (Allen, 2009). This marked a major step forward in regional military cooperation, particularly since relations between east African states had been very icy in the aftermath of the Congo War.
In December of 2008, the joint force, with logistical support and over $1 million in financing from the United States (Gettleman, 2010) launched “Operation Lightning Thunder”, a series of satellite-aided air strikes against the LRA backed up with ground support from Congolese troops in an effort to wipe out or capture the rebel leadership. The mission was a failure, however, due to technical problems with the Ugandan air fleet and the failure of Congolese troops to show up to block the escape route (Wilkerson, 2010). The fleeing LRA was able to escape to the Central African Republic, unleashing retributory pillaging and killing in every village they came across on the way (Wilkerson, 2010). All told, over 865 civilians were killed in the rampage (later described as “The Cristmas Massacres”) and countless more were mutilated or kidnapped in one of the LRA’s most shocking sprees of violence and plunder (Human Rights Watch, 2009).
While there is reason to believe that a precise military strike might be the most effective way to bring an end to the conflict with the LRA, poorly planned and executed operations like Lightning Thunder only serve to embolden the LRA into conducting even more acts of wanton destruction and further deteriorate any remote chance of a peace settlement. At the same time, outside countries offering money and military assistance incentivizes the Ugandan government to prolong the war with the LRA to justify further military build-up and receive more foreign assistance. This was shown in the aftermath of Lightning Thunder, when the Ugandan government used the failure of the operation as a reason to announce its intent to make large purchases to upgrade its air fleet (Wilkerson, 2010).
The shocking brutality and humanitarian devastation associated with the LRA conflict have rightfully caused foreign governments, international organizations, and humanitarian and peacekeeping NGOs to take serious notice of the crisis in northern Uganda. While there may be a serious moral imperative to not sit idly by and watch such an appalling situation play out, the main forms of intervention that the international community has undertaken have shown very little promise in ending or even mitigating the conflict, and in some senses perhaps have even made it worse. Nevertheless, there is still a significant amount of international interest in the situation in Uganda, and governments and organizations are still determined to do what they can to mitigate and resolve the conflict. Just this year, President Obama signed a bill with 65 senatorial co-sponsors pledging to eliminate the threat to civilians and regional stability posed by the LRA (Dickinson, 2010), illustrating the US government’s renewed commitment to assisting in Uganda.
While political and financial support for resolving a conflict is a good start, the international community is still short on answers as to what exactly needs to be done to end the conflict with the LRA. As 24 years of stalemate and hundreds of thousands of civilian deaths can attest, the strategies of the past have not proven to be up to the task of solving this problem. In order to end the LRA’s reign of terror and restore the humanitarian and political rights of the Acholi people, the international community will need to make a concerted effort to learn from the mistakes of the past, fully appreciate the consequences (intended or unintended) of any action in the region, and overcome the practical obstacles of containing a nomadic and agenda-less gang of bandits moving through the uncharted bush of eastern Africa. Only then will international intervention stand any chance of resolving the decades-long nightmare in northern Uganda.
Allen, E. P. (2009). Central Africa’s new regionalism: Yes they can! Foreign Policy, January 23, 2009. Retrieved from http://blog.foreignpolicy.com/posts/2009/01/23/central_africas_new_regionalism_yes_they_can
Branch, A. (2009). Humanitarianism, Violence, and the Camp in Northern Uganda. Civil Wars, 11(4), 477-501. Retrieved from EBSCOhost database.
Cakaj, L. (2010). Peace talks with the LRA are unrealistic, for now. Enough: The Project to End Genocide and Crimes Against Humanity, May 18, 2010. Retrieved from http://www.enoughproject.org/blogs/peace-talks-lra-are-unrealistic-now
Gettleman, J. (2010). Africa’s forever wars. Foreign Policy, March/April 2010. Retrieved from http://www.foreignpolicy.com/articles/2010/02/22/africas_forever_wars?page=0,2
Human Rights Watch (2009). The Christmas Massacres, February 16, 2009. Retrieved from http://www.hrw.org/en/reports/2009/02/16/christmas-massacres
Jackson, P. (2009). ‘Negotiating with ghosts’: Religion, conflict and peace in northern Uganda. Round Table, 98(402), 319-331. Retrieved from Academic Search Premier database.
Morrison, D. (2006). When help is not on the way. U.S. News & World Report, 140(17), 29-31. Retrieved from Academic Search Premier database.
Price, S. (2007). Uganda: The long, hard road to peace. New African, (462), 32-34. Retrieved from Academic Search Premier database.
Quinn, J. (2009). Getting to peace? Negotiating with the LRA in northern Uganda. Human Rights Review, 10(1), 55-71. Retrieved from Academic Search Premier database.
Wendo, C. (2002). UN agency resumes food aid in Uganda despite attacks. Lancet, 360(9338), 1005. Retrieved from Academic Search Premier database.
Wilkerson, M. (2010). Why can’t anyone stop the LRA? Foreign Policy, April 19, 2010. Retrieved from http://www.foreignpolicy.com/articles/2010/04/19/why_can_t_ anyone_stop_the_lra11.9.13
Benefits and Trade-Offs of Rwandan Gacaca Courts: Searching for Alternative Justice in Extreme Humanitarian Disasters
I explored the legal principles of Rwandan gacaca courts, a form of alternative justice in the post-genocide era. I explored the question is “some” justice better than “good” justice?
On July 18, 1994, the Rwandan Patriotic Front (RPF) captured the Rwandan capital of Kigali and ousted the extremist Hutu provisional government, technically marking the end to a 100-day period of lawlessness and ethnic cleansing of the Tutsi minority that rocked the tiny mountainous East African country and sent shockwaves throughout the entire world. In actuality, though, the real hard work in Rwanda was only beginning when the machetes were laid down. In addition to having to deal with the unfathomable reality of the extermination of 800,000 Tutsi and moderate Hutu and the social and infrastructural devastation that came in the aftermath of a violent civil war, the new Rwandan government faced one of the most daunting challenges in legal history: determining how to bring about justice for a country-wide crime spree that implicated, according to some estimates, more than half of the entire adult Hutu population in Rwanda (Longman, 2009). This would be an impossible task even for the most advanced and well-funded legal systems in the world, let alone a desperately impoverished country like Rwanda whose entire legal system was in shambles from the bloody and protracted war.
In the immediate aftermath of the genocide, the responsibility for prosecuting the enormous load of criminal cases from the 100 days of killing was taken on by three main judicial bodies. On the international front, there was the International Criminal Tribunal for Rwanda (ICTR), which was set up by United Nations Resolution 955 to conduct prosecutions for crimes against humanity committed during the Rwandan genocide under international law. The commission was relatively narrow in scope, and was only designed to handle a few hundred prosecutions at most (which might have been an overly optimistic projection, as just over 50 trials were completed in its first 15 years [Larson, 2009]), so it devoted its attention primarily to high-level leadership and instigators of the atrocities. Additionally, some foreign governments held prosecutions outside of Rwanda for crimes committed during the genocide based on the concept of “universal jurisdiction”, although these were relatively rare (Lahiri, 2009). The rest of the burden was left to the conflict-ravaged Rwandan domestic legal system. Setting aside the 50 trials completed by the ICTR and the handful of foreign prosecutions under universal jurisdiction, there remained 120,000 prisoners languishing in overcrowded Rwandan jails (that were only built to house 15,000) waiting to work through a domestic legal system that was hopelessly overmatched by the enormous legal task it faced. In the immediate aftermath of the conflict, only 244 judges and 12 prosecutors remained in the Rwandan legal system, while the number of prisoners waiting to be processed and tried grew to an even more unmanageable amount every day (Rusagara, 2010).
Working at full capacity for nine years, the Rwandan government was only able to clear about 9,700 of these cases by 2003, which meant that some of the accused faced the prospect of waiting in prison for an additional 80 to 100 years to get their day in court (Meyerstein, 2007). In light of this, it became absolutely necessary to find an alternative solution to clearing the enormous number of pending cases if there was to be any hope of rebuilding the country and moving on past the legal snarl. The question that loomed was how could the Rwandan government both bring final accountability for the crimes of 1994 and also preserve the rights of the accused to not face unlimited detention in deplorably overcrowded cells while waiting to work their way through the overtaxed judiciary? As the first decade of the post-genocide era clearly showed, the answer was not going to be found in the modern (largely Western-influenced) justice system, which was failing on both accounts ten years after the killings. An alternative needed to be found.
To solve this problem, the Rwandan government looked backed into its history and turned to a traditional, community-based justice system from its pre-colonial days called gacaca (pronounced gah-cha-cha). Gacaca courts involved gathering entire communities together (usually on spacious grassy knolls, which is the literal translation of gacaca [Larson, 2009]) and hashing out familial or property disputes before village elders who would in turn prescribe a solution that would restore justice to the community. While the system had largely disappeared since the 1930s (Temple-Rastin, 2005), the Rwandan government recognized that its roots in the cultural heritage of the country would be valuable in creating a legitimate body that could expedite the post-conflict legal process. In 1996 and 1998, laws were passed in the Rwandan legislature to grant authority for prosecutions of lower-level crimes during the genocide to Gacaca courts, and after a pilot program in 2002, the system went online in 2005 with community courts set up in 9,000 towns and villages across the country (Larson, 2009). Since then, a tremendous amount of cases have been handled through community courts, greatly alleviating the burden of the national judiciary and providing some form of due process to prisoners who had waited a decade for their day in court. However, the system has also faced criticism from the victims of the genocide, the defendants, and also international human rights NGO’s for the corners that were cut in order to handle cases at such a prodigious rate.
Ultimately, there is much to learn about alternative justice systems from the successes and failures of the Gacaca system. Alternative justice will continue to be critically important when unfortunate situations come along that overpower the modern domestic and international legal systems’ ability to provide justice in a timely and fair fashion. While it is important to keep high ideals for what constitutes fair trials and the proper application of justice, situations like the one in Rwanda will still come around where these measures are simply impossible. In these cases, it is important to acknowledge that some form of justice, any form of justice, is better than none at all. The specific case of the Gacaca system in Rwanda is an enlightening example of how alternative justice works and, in some cases, how it fails to work in balancing out the need to handle a large number of cases and the need to ensure every person gets a fair and honest trial. In this paper, the Gacaca system will be thoroughly examined as an example of alternative justice in its immediate domestic impact on Rwandans (both victims and accused), its interaction and conflicts with international law and human rights NGO’s, and finally in how it compares to other forms of alternative justice that have arisen out of similar humanitarian disasters, specifically the South African Truth and Reconciliation Commission which predated Gacaca by only a few years. Drawing from the lessons learned from these experiments in alternative justice, a clear picture will arise of how to best satisfy justice in these unfortunate legal and humanitarian disasters.
Domestic Impact: Successes and Failures of Gacaca within Rwanda
First and foremost, the Gacaca system was ultimately successful in its main task of processing the enormous backlog of cases in post-genocide Rwanda. In just three years, over one million cases for crimes committed during the genocide were heard and judged through Gacaca, and another 500,000 are projected to be cleared by the time the courts wrap up in 2012 (Longman, 2009). Compared to the 9,700 and 50 cases that were cleared by the national and international legal system in the first 10 years, this marks a prodigious feat in bringing some sort of resolution to what would have been around 100 years worth of prosecutions.
While doing this, the Gacaca system also managed to, generally speaking, gain the confidence and trust of the Rwandan people, a crucial aspect of the ultimate legitimacy of the alternative justice experiment. A survey conducted in 2007 showed that 88% of the Rwandans interviewed after participating in Gacaca trials agreed that the system functioned “very well”, while only 4% disagreed (an increase from a 73/13 split in opinion before the trials). Similarly, strong majorities expressed having confidence in the system (94%) and that the trials had increased security in Rwanda (87%) (Retting, 2008). Additionally, there was evidence that the Gacaca hearings had some effect in at least laying the groundwork for restoring the communities that had been severely fractured by the violence of 1994, much of which was committed between Hutu and Tutsi neighbors. A separate study showed that post-Gacaca respondents displayed a marked decrease in negative stereotyping of ethnic outgroups and an increase in factors related to social cohesion from their pre-Gacaca levels (Kanyagara, Rim, Philippot, & Yzerbyt, 2009). Resolving the large number of outstanding cases had a positive effect on the immediate interethnic tensions by ending the uncertain legal limbo that the crimes of 1994 had existed in for the past decade.
In order to have any chance of working, the Gacaca system needed to build its legitimacy through public acceptance and bring meaningful legal resolution to the horror that the country had experienced. It succeeded in the first area with the help of an aggressive government-sponsored marketing campaign featuring billboards, television programs, and movies illustrating the healing power of Gacaca (Temple-Rastin, 2009), and managed to sustain (and even increase) that level of support through the positive experience of the Gacaca trials. In the second area, the system of confession and apology that is the hallmark of Gacaca justice helped to create and develop a full account of the atrocities and ultimately bring some form of closure to the crimes that otherwise would not have come for another century (Longman, 2009).
Popularity aside, the Gacaca system also had serious flaws that undermined its effectiveness in providing justice to Rwandans. At the forefront was the high level of government involvement in the courts, which injected an unhealthy dose politics into the entire process. Far from being the wholly grassroots, bottom-up campaign of community justice that it was built up to be, the government took a very active role in intervening in Gacaca courts, often rearranging the district lines and court composition if it observed too much lenience being given (Longman, 2009), pressing hard for more punishment rather than the restorative justice and forgiveness that is traditionally sought within Gacaca. Furthermore, the Rwandan government placed strict limitations on the court’s jurisdiction to only cover acts related to the genocide against the Tutsis, expressly forbidding any Gacaca prosecutions for any retaliatory killings committed against the Hutu during the fighting (the RPF, in its march to Kigali, was accused of conducting some reprisal killings of Hutu that rivaled the bloodiness of the ongoing Hutu attacks). As a result, the post-genocide prosecutions gave the appearance of “victor’s justice”, placing the onus of collective guilt on the entire Hutu population while refusing to acknowledge that any inappropriate behavior on the part of the Tutsi (Eltringham, 2004). By bringing down the full force of the law on the Hutu population (and prohibiting bringing legal accountability to any Tutsi actions during the chaotic spring of 1994), the Rwandan government institutionalized a system that paved the way for expanded Tutsi domination of government and society, particularly since conviction in a Gacaca court disqualified the offender from ever obtaining political office (Longman, 2009). Oddly enough, the original rationale that touched off the genocide (that a massive uprising was needed to prevent the RPF from invading, overthrowing the government, and establishing Tutsi domination) in the end turned out to be a self-fulfilling prophecy. The mass killings in Rwanda pushed the RPF into launching an invasion, and the post-war reconstruction created a system that was dominated by Tutsi, thanks in part to the Gacaca system. This had a chilling effect on the prospects of rebuilding a country shattered by ethnic strife.
Indeed, the same polls that showed a general favorable opinion of and trust in the Gacaca system also revealed underlying strife that was aggravated by the way the Gacaca courts were set up. The Retting (2008) survey showed that respondents observed a notable increase in conflicts over housing and land as well as theft after the Gacaca courts began, and Kanyagara et al. (2009) found sharp increases in the negative emotional climate once the trials began. Both of these facts illustrate the deeper reality that the Gacaca system, while effective at addressing the surface problems of bringing the perpetrators of the genocide to justice and providing security within Rwanda, did so at the expense of inflaming and exaggerating the underlying ethnic tensions that were responsible for the country’s descent into lawlessness. Put another way by a genocide survivor in the southern Rwandan village of Sovu, the Gacaca system brought security to Rwanda, but did not bring about any peace, restraining violence only because people feared the authorities (Retting, 2008).
Ultimately, the public reaction in Rwanda to the Gacaca system tells two simultaneous stories. On one hand, the system met basic standards of credibility and legitimacy, and was ultimately appreciated as a functional solution to the legal crisis that Rwandans faced in the post-genocide era. On the other hand, there was widespread acknowledgement that there were serious costs associated with the expedience that Gacaca brought, notably in the politicization of the process, the aggravation of interethnic tension, and the fostering of distrust within the communities. Attendance at Gacaca hearings began to decline as Rwandans became cynical of the political motives of prosecutions and the increase in use of genocide accusations as a tool for meting out petty grudges against neighbors (Dunoff, Ratner, & Wippman, 2006). Undoubtedly, any system that aims to process such an astounding number of cases quickly will always have trade-offs in the aspects of fairness, due process, and the holistic value it provides in healing and rebuilding the community, and the Gacaca system was no exception. It is important to recognize the shortfalls that the Gacaca system had in order to build better and more culturally-sensitive systems of alternative post-conflict justice.
Conflicts between Gacaca and Human Rights Organizations
The impact of Gacaca courts has extended beyond the borders of Rwanda, as human rights organizations around the world have taken a keen interest in the trials and their adherence to universal standards of human rights. Given its wide divergence from accepted international norms of criminal law, it is no surprise that major NGO’s took exception to many aspects of Gacaca. Amnesty International (AI) was an outspoken critic of the abrogation of human rights that occurred in Gacaca courts, and detailed many of the shortcomings of the system in a 2002 report. For one, none of the accused had any right to a defense counsel or any capability of delaying a trial if they needed more time to prepare their defense (Dunoff et al., 2006). While the right to counsel is an important and fundamental aspect of a fair trial, the situation in Rwanda, where prisoners outnumbered attorneys by around 10,000 to 1, made that a fundamental impossibility. Similarly, while allowing for stays of execution on trials is an important general principal in human rights, it loses its importance when dealing with a century-long backlog of cases for defendants who have already had eight years of detention to put together their defense.
More compelling was AI’s assessment that the Rwandan government was using the largely expanded judicial capability that Gacaca provided to stifle dissent by wielding the threat of prosecuting its opponents for genocide crimes in the pliant Gacaca system (Dunoff et al., 2002), a grave and serious violation of the basic human rights of freedom of speech and dissent. Furthermore, the fact that Gacaca was run by a hastily-assembled collection of 250,000 “persons of integrity” that were rapidly deputized after a six day crash training course illustrated the impossibility of guaranteeing the impartiality of the individual courts (Human Rights Watch, 2003). Not surprisingly, there were widespread allegations of incompetence, corruption, and even participation in the genocide by some of the Gacaca leaders that undermined the legitimacy of the courts (Dunoff et al., 2002).
These charges were also echoed by Human Rights Watch (HRW), another prominent international human rights NGO. Additionally, HRW pointed out the problems with the government forbidding Gacaca from hearing any cases of retaliatory killings of Hutu by the RPF, and also the after-the-fact changing of sentencing guidelines for crimes committed in the genocide. Under the Gacaca courts’ mandate, long sentences or even the death penalty could be handed down for some of the crimes committed during the genocide (such as rape) which only carried penalties of five to ten years under the active penal law of the time, presenting a clear violation of the principle of non-retroactivity that is seen as another basic legal right (Human Rights Watch, 2003). Additionally, HRW noted that the lack of protection provided for witnesses (that provided both condemning and exculpatory testimony) seriously threatened the credibility and reliability of testimony and, by extension, the legitimacy of the hearings (Human Rights Watch, 2003). Again, practical considerations come into play here, as it is impossible to imagine how to even go about providing witness protection services for every witness to the events of 1994, which would more or less mean the entire population. Nonetheless, the serious effect that intimidation had on the credibility and transparency of the proceedings is a major concern for the human rights implications of the Gacaca system.
In response to these charges, the Rwandan Supreme Court issued a statement that substantively addressed the main complaints presented by human rights NGO’s, arguing that the demand for processing the large number of detained criminals and the demands by these NGO’s to provide a full bundle of trial rights to every defendant formed an “irreconcilable paradox”, particularly in a country like Rwanda with severely limited resources (Meyerstein, 2007). In its statement, the court highlighted the impracticality of holding the Gacaca system to such high standards of trial justice, the disservice to human rights that would be done by dragging out the trials for 100 years (which would be the necessary cost of providing full, Western trials to all of the accused), and the inability of NGO’s to recognize any degree of cultural relativism when it comes to legal justice (Lahiri, 2009).
The last point cuts to the heart of the conflict between international human rights organizations and the Gacaca system (or any system that is not the modern Western legal process, for that matter). International Law largely draws on the International Covenant on Civil and Political Rights (ICCPR) to determine the accepted definition of a fair trial that respects the human rights of the victims and accused. Specifically, it relies on Article 14 of the treaty, which enumerates a list of rights for anyone charged with a criminal offense. The provisions in place essentially codify the modern Western judicial system into international law and preclude anything besides that system from being legal or valid under customary norms (Meyerstein, 2007). There are several problems with pushing for the Western trial system as a universally-mandated norm for criminal justice. For one, this causes a serious problem when extreme situations occur in countries that lack the wealth and resources to handle the fallout in accordance to these Western norms, creating the aforementioned “irreconcilable paradox” where it is impossible for the state to comply with these human rights obligations. In post-genocide Rwanda it was a physical impossibility to grant the bundle of trial rights in Section 3(d) – (g) of Article 14 of the ICCPR (right to a defense counsel, right to postpone trial date to prepare, etc.) while at the same time following Section 3(c), which guarantees a defendant’s right to “be tried without undue delay” (ICCPR, N.D.) Needless to say, any human rights standard that can at times be impossible to comply with hardly qualifies as an actual universal human right.
Additionally, the exclusion of any alternative or traditional justice systems from satisfying the human rights demands created by the ICCPR denies any aspect of cultural relativism when it comes to legal justice. The strict religion of universalism does not fare well when real-world crises like the one in Rwanda create extreme situations where adherence to universal moral or legal principals is impossible. Rather than trying to create universal human rights norms and strictly enforcing them across different cultures with varying levels of material and legal resources, the focus in the human rights world needs to shift toward the process of human rights development and implementation (Meyerstein, 2007), which alternative justice systems like Gacaca play a pivotal, albeit imperfect, role in establishing. The Rwandan Supreme Court made this point clear by offering to entertain any “miracle solutions” that the NGO’s had for solving the paradox and advising that they would be proceeding with the best available solution to the situation at hand in the meantime (Meyerstein, 2007).
Gacaca and South Africa’s Truth and Reconciliation Commission: A Comparison
It is difficult to directly compare Rwanda’s post-genocide system with any other alternative justice systems because the sheer amount of death, devastation, and destruction of the social fabric that occurred in the spring of 1994 is (thankfully) nearly unprecedented in the modern world. However, there are some examples of states that have faced similar situations as post-genocide Rwanda where the country’s very survival depended on reconciliation and developing a full account of crimes committed by large swaths of the population in a troubled past. The most prominent example of this occurred in South Africa, and happened to take place while Rwanda was still cleaning up the immediate aftermath of its genocide.
Following the election of Nelson Mandela in 1994 and the end of the apartheid era, South Africa faced a formidable obstacle that prevented it from moving on and reforming the country: finding a way to bring accountability and closure to the decades of violent oppression and resistance that bitterly split the country along racial divides. To achieve this goal, the South African Truth and Reconciliation Commission (TRC) was established in 1995 to run from 1996 to 1998. Similar to the Gacaca system, the TRC was devised to provide grassroots, community-level justice for the litany of crimes committed during apartheid by large sections of the population while at the same time fostering reconciliation, forgiveness and moving forward. Although the conflict was substantially less bloody than the one in Rwanda, there are strong parallels between the two countries on the widespread and systematic nature of the human rights crimes committed and also a deep aggravation of long-standing ethnic (or racial, in South Africa’s case) strife. Although the Rwandan government expressed interest in the justice system being developed in South Africa (they sent official delegations there in 1996 and 1997 to observe the TRC in action), they ultimately rejected the model as being too focused on academic pursuits like gathering information and not sufficiently equipped to bring accountability for the unspeakable crimes that were committed (Sarkin, 2000). Some of the reasons for the establishment of Gacaca courts rather than something in the model of the TRC were pragmatic, given the great disparity in resources and wealth and the fundamental differences in the conflicts, but there were also some aspects of the TRC that were rejected for reasons that seemed to be political in nature.
The most striking differences between the TRC and the Gacaca system were mainly due to the very different situations in the two countries. South Africa, despite its rocky history, has the largest economy in Africa and boasts a population of over 40 million, while Rwanda is much smaller and is among the world’s most desperately poor countries (International Monetary Fund, 2009). South Africa’s TRC benefited from the large population and abundant resources available, and as a result became a massively funded operation that was staffed with large numbers of trained legal and counseling professionals (Temple-Rastin, 2005). It also included an investigative unit, a fully-staffed legal department, a well-funded media department, and a functional witness protection program that assisted in ensuring the security, legality, and legitimacy of the proceedings (Laakso, 2000). Obviously, these are aspects that simply could not have been emulated by Rwanda, regardless of whether or not they would have preferred to do so.
However, other successful aspects of the TRC were ignored and not integrated into the developing Gacaca system, largely, it seems, due to the political considerations during the creation of the system. The most glaring of these differences is the scope of the prosecutions that were undertaken in the newly-formed court systems. While Rwanda focused exclusively on Hutu crimes against Tutsi (which constituted a large majority of the violence in the conflict) and forbid any prosecutions for retaliatory killings that took place in the lawless chaos of the genocide, the South African commission focused both on crimes committed in the name of apartheid as well as those committed in the struggle against it (Laakso, 2000). As a result, the South African TRC was much more successful in promoting reconciliation and easing of racial tensions within the country, while the Gacaca courts faced criticisms of being “victor’s justice” and had minimal positive effect in easing relations between the rival ethnic groups. The Rwandan government’s steadfast refusal to allow any Tutsi to be tried for crimes committed during the spring of 1994 (which also extended to the ICTR, which did not indict any Tutsi due to the Rwandan government’s threat to cease cooperating with the international tribunal if any were prosecuted [Temple-Rastin, 2005]) did a disservice to the overall justice of the Gacaca system by using it to stoke and aggravate ethnic tensions.
Another critical difference between Gacaca and the South African TRC is the overall focus and objective of the proceedings. The South African system was primarily focused on reconciliation and healing the overall sense of “community” (an idea represented by the Bantu term ubuntu) in the fractured country. It did this by delegating broad powers for the tribunals to grant amnesty for the crimes that were committed and directed the focus at obtaining a full record of the truth rather than on just punishing the misdeeds of the past (Lang, 2009). The Gacaca courts, on the other hand, were highly punitive in nature, and there was evidence that the government took active involvement in reorganizing the courts if they felt any court was being too lenient in its sentencing. Once again, this showed a conscious prioritizing of punishment (and, importantly, punishment directed solely at one ethnic group) over facilitating healing and reconciliation between the ethnicities (Sarkin, 2000).
Needless to say, Rwanda faced a difficult balancing act in trying to bring about punishment and accountability for the crimes committed during the genocide while simultaneously working to defuse the ethnic tensions that caused the violence and encourage healing in the community. Adding in a mass murder of unprecedented magnitude and a crippling lack of infrastructure and resources only redoubled the challenge of creating a functional system that addressed these issues. This forced the need to make tough decisions on prioritizing very limited resources between these two ultimate aims of justice. In the end, when sacrifices had to be made, the Gacaca system usually opted for punishment at the expense of reconciliation. As a result, the system has brought satisfaction for punishing the deplorable acts that occurred in the genocide, but in doing so has caused a deepening, rather than a lessening, of ethnic strife in the post-genocide aftermath.
Moving Forward: Lessons Learned about Alternative Justice from Gacaca
As long as there is the potential for extreme situations to arise that make it impossible for the modern Western justice system to adequately protect due process and trial rights while at the same time ensuring that justice is completed within the lifetime of the victims and accused, there will be a need for alternative justice systems to step in. As such, it is important to look critically at the various systems that have been devised throughout history to handle these unique situations and learn from the successes and failures they have had both in providing meaningful accountability and resolution for crimes as well as in rebuilding and defusing the tensions that set off the original conflict. The overarching theme that can be discerned from the Rwandan Gacaca court and alternative justice systems in general is that it is difficult to attain both of these simultaneously, and often one must be sacrificed for the sake of the other. In order to make a successful and legitimate alternative justice system, it is necessary to walk a fine line between these competing interests and make tough decisions about priorities, particularly in countries like Rwanda where resources are severely limited.
A few key areas stand out for maximizing the legitimacy and efficacy of alternative justice systems. First, significant attention needs to be paid to ensuring that legal rights are, as best as possible, protected for all involved. Second, the local government should work hard to minimize its involvement in the proceedings in order to keep the courts from becoming politicized or to give the appearance of only providing “victor’s justice”. Among other things, this involves giving an equal hearing to crimes committed by both sides during a conflict, which the Gacaca courts failed to do. Finally, it is critical to find a comfortable middle ground between excessive focus on punishment for crimes without addressing underlying issues and blanket offerings of amnesty in exchange for a truthful account of the events. Had Rwanda opted to pursue the latter more in its Gacaca courts, the process would likely have been more fruitful in normalizing ethnic relations and helping the country rebuild itself after a horrendous tragedy (albeit at the expense of providing the same level of punishment for the atrocities of the 100 days of killing).
Ultimately, the success of these fledgling grassroots justice movements that spring up after grave humanitarian disasters depends just as much on the personal efforts of the individuals involved in the system than on the structural arrangement of the courts. The dedication and personal effort that communities invest in making their courts fair, legitimate, and valid assessors of justice is the ultimate deciding factor in whether or not an alternative justice system can be viewed as a success. A critical aspect of this is finding a way to connect the means of justice with the cultural heritage of a country. To its credit, the Gacaca system was able to gain the trust and acceptance of the Rwandan population because of its deep roots in traditional society as opposed to being seen as an impartation forced upon them by the outside (as, it could be argued, the ICTR tribunals gave the appearance of being). While it is certainly everyone’s sincere hope that someday situations like the Rwandan spring of 1994 will become a thing of the past, the most responsible thing for the international community to do is learn from these extraordinary situations and understand how best to preserve law and justice even in the face of systematic humanitarian collapse for the next time that, God forbid, the horrors of Rwanda are visited on some other unfortunate country.
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 The phrase “and moderate Hutu” is appended to every documented estimate of the number of lives lost in the genocide. It is a telling indication of the sheer chaos of those 100 days that a meaningful number of the people butchered in the ethnic strife were the perpetrators’ co-ethnics who were accused of collaborating with Tutsi, harboring Tutsi friends or family from the killings, or merely refusing to participate in the slaughter themselves.
Another paper from 2010, this time about the economics of oil in Nigeria, and the unanticipated negative consequences of fortuitous resource wealth.
In the 1948 film The Treasure of the Sierra Madre, three American prospectors are amazed at their luck when they happen upon a fantastically rich gold mine in the remote Mexican hinterland. This blessing, however, quickly turns into a curse, as the dark side of human nature and unrestrained greed begins to set in, catalyzing a tragic spiral of deception, betrayal, and ultimately murder. In the end, the gold is blown away by the desert winds and lost forever, leaving behind a pile of bodies and a chilling cautionary tale about the pitfalls of resource wealth (Blanke & Huston, 1948).
On the other side of the world, an eerily similar tragedy has been playing out over the past half century in Nigeria, Africa’s most populous country (as well as one if its most ethnically fractious) (U.S. Department of State, 2010). Since massive oil reserves (the world’s fifth largest) were found in the marshy Niger Delta in the 1950s, aggressive drilling by multinational corporations and the Nigerian national oil company has brought nearly $350 billion of profit into the country’s coffers (Ogwumike & Ogunleye, 2008). The people of Nigeria, however, have not reaped any benefit from this windfall, and instead have only seen violence, civil war, corruption, environmental degradation, political unrest, a revolving door of shaky democracies and military dictatorships, and ever-increasing poverty and squalor over the past 50 years, as the profits from the oil industry seemingly vanish like gold dust into the winds of the Sierra Madres.
This challenges some of the basic assumptions of modern economic theory. While the widely-accepted “Staple Theory” of economic development argues that natural resource production can benefit developing states by providing a steady stream of government revenue which can in turn be used to alleviate poverty and create better public services for social wellbeing (Oyefusi, 2007), Nigeria’s troubled history since discovering an untold trove of riches just beneath its soil directly challenges that notion. Today, a higher percentage of Nigerians live on less than one dollar a day than did 40 years ago (Figure 1) (Mähler, 2010) and human development has stalled out, with the country rating an abysmal 158th (out of 182) in the world on the Human Development Index (HDI) scale and in the bottom tier for just about every measurable category of social progress (United Nations Development Programme, 2009). Meaningfully, the HDI trend for Nigeria over the past two decades has been indistinguishable from the rest of Sub-Saharan Africa, despite the fact that most of the countries in that cohort do not have anything close to the revenue stream that Nigeria receives from the oil industry (Figure 2).
In the 19th century, an abundant supply of natural resources (particularly the iron and coal required for steel manufacturing) was seen as a fundamental necessity for industrialization and economic development, but in the modern era of advanced transportation and open trade, theorists have found evidence of the existence of a “natural resource curse”, where having a wealth of raw materials actually depresses economic growth (Sachs & Warner, 2007). From this perspective, Nigeria makes for a fascinating case study about why, contrary to conventional wisdom, resource wealth (and more specifically, oil wealth) can be a dangerous obstacle to development, even while it brings hundreds of billions of dollars into the economy. In this paper, three specific areas will be examined where the oil industry has crippled and set back economic and human development in Nigeria. First, the abundance of oil has created an unhealthy economic dependence on a single resource, which has in turn diverted attention away from developing other sectors of the economy, introduced severe volatility into the financial system, and frustrated the development of democratic systems. Second, the oil industry has catalyzed and intensified violence, armed conflict, sabotage, kidnapping, and ethnic strife, which has a deleterious effect both on human development and living conditions in Nigeria as well as the country’s economic development. Finally, Nigeria’s total reliance on oil wealth has ceded much of the political control of the country over to foreign interests, particularly multinational oil companies, which have shown a propensity to escalate armed conflict, promote human rights violations, and commit staggering destruction on the natural environment in the name of securing profits and oil supplies.
While investigating the impact of the oil industry, it is important to remember that Nigeria is a very complicated place. Ever since being hastily stitched together by the British in 1914 (a decision made for purely administrative reasons that completely ignored the serious ethnic, cultural, environmental, and religious divisions of the newly-joined states), Nigeria has been awash in subjugation, poverty, ethnic tension, and political corruption (Uche, 2008). Certainly, the full explanation of why Nigeria is as troubled as it is now is a much larger topic than cannot be addressed in one paper. However, the contribution of the petroleum industry to the unrest and poverty in Nigeria is clearly discernable, and interacts, either directly or indirectly, with nearly every societal woe that the people of the region face. In the final section, some of the proposed solutions for improving the conditions in Nigeria will be discussed, and while there is reason to believe that some adjustments in policy, governance, and awareness can improve life in Nigeria, it is important to temper that hope with an understanding of how deep and institutionalized its fundamental problems really are. However, if better policy can minimize the damaging effects of Nigeria’s resource curse, it will put it in a much better position to resolve its deeper economic, political, and social problems.
Economic Dependency: From “Dutch Disease” to Democratic Failure
Starting in the 1980s, economic theorists posited that a boom in natural resources could be damaging to a country’s economic well-being because it diverts resources and productivity from all other sectors to the tantalizing easy money of resource extraction (Sachs & Warner, 2007). This effect is called the “Dutch Disease” after the economic stagnation the Netherlands experienced in the 1960s after discovering and extracting large amounts of natural gas. The theory has gained traction based on strong empirical evidence for its claims, such as the significant economic outperformance of resource-poor countries over resource-rich ones from 1970 to 1990 (Sachs & Warner, 2007), with Nigeria being a prime example of one of the countries on the losing end. However, while this likely was a problem in the early days of the Nigerian oil boom, the current economic trouble in Nigeria seems to have outgrown the classic “Dutch Disease” model (Mähler, 2010). Modern oil extraction is not very labor-intensive, and only about 35,000 people are employed in the Nigerian petroleum industry (a very small number, particularly when taking into account to the much larger number of agricultural jobs that have been lost to the environmental damage done by the same industry), meaning that only a trivial amount of production has been diverted away from other sectors in favor of resource extraction (Mähler, 2010).
For Nigeria, the far bigger problem that has emerged is the extreme dependence on oil revenues that the country and government has developed. Oil has accounted for around 90% of Nigeria’s exports, 80% of its government revenue, and around half of its Gross Domestic Product since the oil boom of the 1970s (Budina, Pang, & Van Wijnbergen, 2006), meaning that the entire economy revolves around the market for petroleum. This places Nigeria in a precarious situation, as oil prices are notoriously volatile, meaning that the federal budget (which is 80-90% determined by the cost of oil) is prone to unpredictable upward and downward swings. This in turn has a damaging effect on both the political and financial stability of the country.
From Dependence to Volatility and Instability
Holding together a country with such extreme ethnic, political, and geographic diversity as Nigeria requires a delicate balancing of divergent interests. One way that Nigeria has been able to maintain its political stability over the past half century is by making regular payments out of its oil revenues to local elites and tribal leaders and maintaining well-paid military establishment (Klare, 2009). When oil prices are high and government money is abundantly available, all of the disparate groups can be easily placated with a share of the federal largesse, and a well-paid military establishment can be relied upon to maintain order and remain loyal to the government. However, downturns in oil prices drastically alter the amount of disposable federal money available for paying off these groups, and shrinking payments cause anger over the splitting up of profits and can quickly escalate into increased demands for autonomy and, ultimately, internecine violence (Klare, 2009). In this case, volatility in the oil market directly translates into social and political volatility.
On the financial side, Nigeria is troubled by two different phenomena that feed off of (and, in turn, exacerbate) the unpredictable and volatile nature of the federal revenue stream. The first is the “voracity effect”, which is caused by the propensity for governments to overspend when revenues are high and make insufficient cuts when revenues decline, thus worsening the effect of fluctuations in oil prices on the federal debt. The second is the issue of “debt overhang”, a macroeconomic problem tied into access to the credit market. Since Nigeria’s economy is so deeply reliant on oil prices, its creditworthiness (and thus the rates it can borrow money at) is largely determined by the price of oil. This, of course, trends in the exact opposite direction as Nigeria’s borrowing need: it needs to borrow more money to cover its budget requirements when oil prices decline. This results in a backlog of high-interest debt (accrued at the time of highest need but lowest creditworthiness) that disrupts Nigeria’s ability to access the credit system and further exacerbates the volatility of government revenues (Budina, Pang, & van Wjinbergen, 2006). Recent analysis of Nigeria’s debt trends has shown that the problem with the voracity effect has been greatly reduced since the country began adapting a more fiscally responsible budgetary policy around 1984 (in the middle of a long stagnation and decline in oil prices), but that debt overhang has become an increasingly pressing crisis and one of the biggest threats to Nigeria’s financial stability today (Budina, Pang, & van Wjinbergen, 2006).
Dependence as an Obstacle to Democracy
Another area that suffers as a result of government dependency on one resource is the development and advancement of democratic institutions. Nigeria has had a spotty and largely unsuccessful run at developing a functioning democracy since gaining its independence in 1960, and has had constant setbacks along the way, including a string of military coups in 1966, 1967, 1975, 1976, 1983, 1985, 1990, and 1993 (U.S. Department of State, 2010). While a fragile democracy has been tenuously held together since the end of the last military dictatorship in 1999, elections in Nigeria are still largely violent, corrupt, and highly criticized affairs. Much of the “campaigning” is done by unemployed militiamen that are paid off and armed by the various political parties, and the 2003 federal elections were determined by observers to be riddled with violence, intimidation, and massive fraud (Human Rights Watch, 2004). Given Nigeria’s serious ethnic divisions, violent history, and legions of out-of-work mercenaries more than happy to pick up a gun and join the political process for pay, there are clearly many strong reasons unrelated to oil for democracy having a difficult time taking root there. However, oil dependency has a clear role in worsening the prospects of democracy, and provides yet another obstacle to political development that a fledgling democracy like Nigeria can ill afford.
At the heart of this issue is what Thomas Friedman calls the “First Law of Petropolitics”, which states that democratic freedoms inside an oil-dependent country move in a distinct inverse relationship with the price of oil (Friedman, 2006). When oil prices are high, governments in oil-rich countries are flush with cash, and can easily keep their necessary systems of patronage and military strength solvent. As such, there is little or no need for them to pay heed to any demands made of them by either the international community abroad or by popular opinion at home. When oil prices decline, however, governments become more dependent on financial support from its citizens through taxation, which in turn lessens their power and autonomy and forces them to pay closer attention to the social contract. In Nigeria, there have been clear examples of this effect taking place as oil prices have fluctuated over the last few decades. The 1990s, which were marked by a general decline in oil prices, saw an increase in independent newspapers in Nigeria, the end of the last military dictatorship, and the creation of a democratic civilian government, while the following decade of rising oil prices saw a crackdown on civil liberties and rampant bribery in the federal legislature (Friedman, 2006). Combined with the legion of other impediments toward the development of democratic institutions in Nigeria, this petropolitical effect puts the country at an even greater risk of taking yet another step backward in political freedom.
Oil and Violence
Between civil wars, military coups, and various secessionist movements, violence has been a way of life in Nigeria throughout its entire independence. Since oil is such a crucial and pervasive aspect of Nigerian politics, economics, and everyday life, it is also inextricably linked to nearly every incident of armed conflict, directly or indirectly. The effect that the oil industry has had on the strife and violence in Nigeria has been consistently negative, frequently aggravating, deepening, and prolonging (and in many cases, directly causing) armed conflict by creating volatile conditions that are ripe for violence, providing tantalizing financial incentives for regional secessionist movements, and creating vulnerable targets for guerilla attacks, sabotage, and lawlessness.
A Catalyst for Strife
While there are many factors that increase a country’s likelihood of collapsing into civil war, one of the most toxic mixtures is the combination of traditional conflict instigators (poverty, ethnic strife, and inequality, for example) with an economy that is heavily dependent on a single natural resource (Collier, 2003). Among other incentives, a large supply of natural resources in a conflict zone creates an easy way for rebel factions to finance their operations, as resources can easily be plundered and sold off for a quick profit. While this type of illicit fundraising is commonly associated with the diamond trade in West Africa (Collier, 2003), the illegal siphoning of oil is omnipresent in Nigeria, as some 300,000 barrels of oil per day (estimated between 3 and 12% of the country’s entire oil production) are “bunkered”, as the practice is commonly referred to as (Mähler, 2010). By some estimates, over $3 billion was brought in through bunkering in just the first seven months of 2008 (Chavkin, 2010), creating a massive stream of wealth for the criminal element in Nigeria and providing a practically unlimited bankroll for rebel groups and militias.
By providing easy financing for rebellions, Nigeria’s oil prolongs and exacerbates armed conflict. This has chilling self-sustaining effect, as the longer wars drag on, the more damage is done to the economy, resulting in deepening poverty and unemployment, which in turn drastically increases the risk of another war breaking out (Collier, 2003). As noted earlier, this deepening of unemployment also has a damaging effect on democratic freedom in Nigeria, as out-of-work mercenaries (who are heavily armed and accustomed to fighting) have been a major factor in the corruption, intimidation, violence, and dubious legitimacy of Nigeria’s elections (Human Rights Watch, 2004).
A Catalyst for Regional Secession
Nigeria is a large and geographically diverse region, but the oil deposits are almost exclusively clustered around a very small region in the southern coast known as the Niger Delta (Oyefusi, 2007). The seat of the federal government, however, is in the capital city of Abuja, which is much further north and far removed form the economic center in the Delta. As a result, there is a strong financial incentive for the oil-rich southern regions to fight for independence, which would allow them to keep the entire lucrative oil industry without having to divide the wealth among the non-producing regions and the extensive patronage system in Abuja. Not surprisingly, the major secessionist movements since Nigerian independence have all been from the oil-producing areas in the Niger Delta (Oyefusi, 2007).
While many of these movements have taken on an ethnic nationalist tone (such as the Biafra secession of 1967, the Ogoni uprising in the 1980s, and the calls for autonomy by the Ijaws in 1998), it is much more likely that these are just post hoc justifications for the pursuit of economic interests (Oyefusi, 2007). Studies of the numerous ethnic separatist movements around the world (notably the Cabinda in Angola and the Aceh in Indonesia, in addition to the movements in the Niger Delta) have shown that ethnic strife and nationalist romanticism in these regions are usually weak or nonexistent until economic disputes over natural resources come into play (Collier, 2003), at which point they are suddenly discovered and used to further the advancement of opportunistic secessionist movements. In these situations, it is natural resources and economic self-interest that inflames, or perhaps even creates, ethnic conflict, another damaging effect of the resource curse of oil in Nigeria.
Crime as an Unwanted Byproduct
Nigeria’s oil industry has also been a lightning rod (as well as a breeding ground) for crime, sabotage, and guerilla attacks. In addition to the aforementioned problem with the theft and illegal trade of oil (“bunkering”), there are several other criminal enterprises that have sprung up to take advantage of the vulnerabilities that arise in resource-dependent countries. Sabotage looms as one of the biggest and costliest problems in Nigeria. Since the federal government is so heavily dependent on oil revenues, attacking that revenue stream is the easiest way for a rebel group to strike a serious blow against its stability and legitimacy. In Nigeria, militants have repeatedly blown up pipelines and launched guerilla attacks on oil platforms, causing an estimated loss of some 445,000 barrels of oil (Nigeria’s Civil War, 2006).
In addition to being costly from an economic standpoint, these sabotages are highly destructive to the environment, as they usually result in massive oil spills. This creates controversy about the responsibility for cleaning up these toxic sites, as the oil companies claim that 85% of all of the spills in Nigeria (there are over 2,500 of them currently) are the result of sabotage and refuse to pay for them (Chavkin, 2010). While there is no question that sabotage-related spills are a very serious problem, the 85% figure seems to strain credulity, and gives the appearance that the oil companies are merely using the existence of guerilla attacks as a way to pass off the blame in order to avoid serious financial obligations.
Kidnapping has been another cottage industry that has sprung up around the oil industry. The presence of large foreign corporations with deep pockets and defenseless employees has created a lucrative opportunity for unscrupulous mercenaries to use their weapons to turn a quick profit with very little risk (Vardi, 2008). The kidnapping industry has been so successful (bringing in an estimated $100 billion from 2006-2008) that it has grown and expanded beyond just the oil industry, now posing an ever-present threat to both foreign nationals and local natives alike (Yang, 2010). Here, opportunistic crime that first sprouted up because of the oil industry has now spilled over into general lawlessness across the country.
A major part of the resource curse is that natural resources bring with them an inevitable rise of violence, war, and crime. These prove to be serious blights on the development and prosperity of resource-rich countries because they feed off of themselves. Illicit industries that are discovered to be profitable (such as bunkering and kidnapping) will become more prevalent and expansive, and the repercussions of crime and violence (shrinking economy, unemployment, and an influx of weapons) in turn causes more conflict and lawlessness, starting the whole cycle over again (Oyefusi, 2007). It is a dangerous trap for any country to get stuck in, and in Nigeria’s case, oil has proven to be the catalyst (or, perhaps more appropriately, the lubricant) that keeps the entire system financed and running smoothly.
The Loss of Sovereignty to Foreign Interests
Creating a stable, legitimate, and effective government in Nigeria has been a slow and fragile process (as it has been in nearly every fledgling post-colonial country in Africa), and this process is made exponentially more difficult when meddlesome foreign interests are constantly intervening. Multinational oil corporations wield a tremendous amount of power in Nigeria, as they are responsible for nearly all of the extraction of oil, while the Nigerian National Petroleum Company (NNPC) merely sits back and collects rent (Oiling the wheels, 1993). While this sounds like a sweet deal for the Nigerian government (free money without having to do any of the work!), it essentially cedes all of the political power over to these foreign companies, as they are the sole providers of nearly the entire federal budget. These companies have not been hesitant to wield this power in recent history, and have frequently forced the government’s hand in security manners (Mähler, 2010), chosen sides in conflicts, and used their leverage to shirk environmental and tax obligations (Oyefusi, 2009).
Furthermore, since oil is such a crucially important resource for the global economy, foreign governments (particularly the wealthy superpowers that are highly reliant on access to oil) are quick to intervene if the oil supply is threatened, particularly when there are disruptions and crises in the other major hub of oil production, the Middle East. In this case, oil specifically provides a much more pointed resource curse effect, since it is unlikely that global powers would go through the same extent of intervention if the domestic situation in Nigeria posed a possible disruption in, say, the world’s supply of bananas. Due to the high-stakes geopolitical importance of petroleum, Nigeria is opened up to unwanted interventions from foreign powers that undermine the government’s ability to build legitimate sovereignty. The most flagrant offender has historically been Great Britain, which had an active stake in the Nigerian Civil War of 1967 (Uche, 2008), but as the United States and the European Union became increasingly larger consumers of Nigerian oil and gas, they too have been drawn into the country’s domestic affairs (Nigeria’s Civil War, 2006).
The Nigerian Civil War: 1967-1970
The Nigerian Civil War (which, as mentioned earlier, was largely caused by competition over oil) grew into something much larger than an internal dispute, as multinational oil companies and foreign governments became actively involved to ensure their access to the vast oil reserves were protected. The corporations with the largest interests in the region, Shell and BP, used their full economic might to hasten the end of the war (and return to relative normalcy in oil production), both by funneling massive amounts of money toward the Nigerian federal government (in the form of an advance payment of future royalties and income taxes) and by aggressively lobbying the British government to provide financial and military support for the federal side (Uche, 2009).
The British government soon became heavily involved too, largely because the Nigerian Civil War happened to coincide with the Suez Crisis following the Six Day War in the Middle East, which blocked off oil shipping routes through the Mediterranean and sparked a massive oil boycott against Britain by Arab states worldwide. Desperate to gain access to oil, the British (with the help of local oil company lobbyists) saw the best chance of preserving Nigeria’s oil industry was by backing the stronger Nigerian federal side, and began to actively push the “One Nigeria” solution (Uche, 2009). With the benefit of cash payouts from the oil companies and active support from the British government, the federal side was able to overpower the Biafran rebels by 1970, and oil production quickly returned to its pre-war levels. Ultimately, the Civil War of 1967-70 showed a lot about the power dynamics in Nigeria, as foreign interests, both corporate and political, proved to be the deciding factor in the conflict, while the Nigerians were merely left to do the fighting and dying.
International Infamy: 1995
On November 10, 1995, the Nobel Peace Prize-nominated Nigerian playwright and human rights activist Kan Saro-Wiwa, along with eight other leaders of his non-violent Movement for the Survival of the Ogoni People (MOSOP), were executed by the brutal military dictatorship of General Sani Abacha (Sharife, 2009). Even for a country like Nigeria with a long history of violence and corruption, this marked a new and highly publicized nadir for human rights in the country. As further legal investigations have been made into the incident, more evidence is surfacing that Shell, the multinational oil company whose interests were directly threatened by the grassroots protests of the MOSOP, played a crucial role in instigating the extreme military crackdown and showed a reprehensible complicity in the sham prosecution and execution of the activists that ensued (Sharife, 2009).
Over the past decade, family members of the Ogoni Nine have been embroiled in a high-profile lawsuit in U.S. courts against the Shell Corporation for their role in the executions. After Shell halted its oil drilling operations in Ogoniland in response to a massive non-violent protest by the MOSOP demanding better environmental and human rights protections in the region, the lawsuit alleged that Shell put pressure on the Nigerian military to use whatever force was necessary to return stability to the area so that oil drilling could resume. After the leadership of the MOSOP was swiftly arrested on fraudulent charges and hauled before a dubiously legitimate military tribunal, Shell stood by idly while the persecution escalated to the point of execution. On June 8, 2009, a long-awaited resolution was achieved, as Shell agreed to pay a settlement of $15.5 million to the victims’ families (Sharife, 2009). While this resolution did not involve any admission of fault or complicity on Shell’s part, it does indicate that there is some credibility to the plaintiffs’ claims that Shell could have (but refused to) easily prevented this gross miscarriage of justice by using their powerful leverage over the Nigerian government, at least enough to justify a costly financial settlement.
This illustrates the dangers of total resource dependence, as the multinational corporations that control the production of oil wield unchecked political power. When Shell stopped operations in Ogoniland, the military’s primary focus became doing whatever it took to get the oil flowing again, crafting a strategy (documented in confidential memos found during the subsequent lawsuit) of ruthless military operations in order to preserve Shell’s interests (Sharife, 2009). Shell, for its part, did nothing to dissuade this violence, and is now having to come to terms with taking responsibility for its complicity. As a result of the events of 1995, Nigeria instantly became an international pariah state, promptly facing expulsion from the Commonwealth of Nations and a rash of international sanctions (Onadipe, 1996). The damages done to the national economy as a result of this once again showed the resource curse at work, albeit in a roundabout fashion that brought political violence and murder into the equation as well.
The Moral Hazard of Environmental Destruction
While there have been no shortage of victims in Nigeria’s tumultuous 50 years of oil production, the most destructive and irreversible damage in the Niger Delta has been done to the environment. Toxic runoff, constant burning of vented natural gas, and omnipresent oil spills in the Delta have stripped away the agricultural value and human habitability of the world’s third largest wetland (Nigeria’s Civil War, 2006). Oil spills in particular have been incredibly destructive, but have by and large avoided the publicity and international attention that oil spills typically receive in the West. While Westerners today immediately recognize the term Exxon Valdez as the ship involved in the disastrous and environmentally devastating spill of 1989, hardly anyone knows that in Nigeria, one Exxon Valdez worth of oil is spilled every year (Chavkin, 2010). Even worse is that there is very little accountability for these spills, as the multinational oil corporations in Nigeria refuse to pay for the cleanup of the 85% of these sites, claiming that they were caused not by their negligence but by sabotage by rebel groups (Chavkin, 2010).
The power dynamic between the Nigerian government and the multinational oil companies creates a moral hazard when addressing the issue of environmental protection in the Niger Delta. The oil companies have no incentive to invest the enormous amount of time and money required to prevent or reduce environmental destruction, and the Nigerian government, which is wholly dependent on protecting their revenue stream from oil, has no motivation to hold the corporations accountable (and in fact a very strong financial motivation for allowing the oil companies to ramp up production with impunity), leaving nobody left to stand for the protection of the environment. In fact, the organizations that have tried to stand up and hold the corporations accountable, such as the MOSOP, have been violently put down by the Nigerian government for posing a threat to the oil industry (and, by extension, the government’s primary source of funding).
In all these cases, it is apparent that decisions in Nigeria are being made not with the best interests of Nigerians in mind, but instead on what best suits the oil companies, the government’s revenue stream (which comes from the oil companies), or the availability of Nigerian oil to foreign powers. It is difficult to think how democratic institutions could ever flourish in Nigeria when oil gets a vote that can overpower the best interests of 140 million Nigerians.
A Positive Path Forward?
As fifty years of troubled history has clearly shown, Nigeria is wracked by a damaging and self-sustaining resource curse that has frustrated development, exacerbated poverty, and locked the country in a state of perpetual conflict and violence. It is clear that in order to break out of this cycle, serious changes will need to be made in Nigeria, as continuing with the status quo will only lead to these problems growing more onerous and uncontrollable. One idea that has been brought up is revamping the way that oil profits are distributed throughout the country. Instead of having oil profits go to the government budget and subsequently trickling down through the corrupt and wasteful patronage system, it has been suggested that the money be directly paid out to the people of Nigeria, providing an immediate economic stimulus to the people in the most desperate need for money and, hopefully, producing a positive multiplier effect on economic growth (Moss, 2009). Despite the somewhat socialist nature of this kind of disbursement, there is ample precedent for this usage of oil windfalls, most notably in the very popular and successful redistribution program in Alaska.
Of course, such a sweeping and fundamental change in economic policy is very unlikely, particularly in Nigeria where the oil industry has been established for half a century. For Nigeria, it might be better to focus on small, attainable macroeconomic changes that can realistically make a tangible difference in the near future. One of the simplest changes that can be made is restructuring government budget around the long-term prospects of oil prices, rather than on the current value, in order to alleviate rather than exacerbate the economic shocks from price volatility. Nigeria has shown some success in recent years at doing this by adopting “oil-price based fiscal rule” (OPFR) in 2004 (Burdina, Pang, & van Wjinbergen, 2006), which has resulted in an immediate jump in growth, a stabilization of the inflation rate, and some much-needed insulation from the macroeconomic woes that have come with the volatility of the oil market (Nellor, 2008). This perhaps raises the question as to why it took nearly 50 years of financial misery to realize that oil prices were volatile and adjust accordingly, but any progress, however small, is a welcome change in Nigeria.
Just like the negative aspects of the resource curse are self-sustaining, positive steps can also breed more success. As Nigeria begins to show some promising turnaround after making a few responsible macroeconomic adjustments, it has begun to regain the confidence of global institutions like the International Monetary Fund (Nellor, 2008), which puts it in a much better position to access credit, attract investment, and restructure its debt. While there is still a long way to go, one of the most important battles over the future of Nigeria will be over changing the trend line, breaking out of a destructive cycle, and building international credibility as it tries to move forward in a positive direction.
A curious and paradoxical side note to the long and sad history of the Niger Delta is that Nigeria has been rated as the world’s happiest country based on recent surveys (Nigeria tops happiness survey, 2003). This joy and optimism in the face of such staggering poverty and violence is a tribute to the indomitable spirit of the Nigerian people, and perhaps a call for Americans (who came in at 16th in the survey) to make a serious reassessment of what truly defines happiness. Happy or not, though, Nigeria has some serious work to do, and the most important first step will be tackling the oil issue and its accompanying resource curse. It is not surprising, considering the tremendous woes and misery that have come with the oil industry, that many Nigerians wish there was some way to simply cap off the oil wells and forget they ever existed (Chavkin, 2010), but that simply is not an option in today’s world that has more and more come to revolve completely around petroleum. Acknowledging that, Nigerians needs to work on taking steps toward breaking the stranglehold that the oil industry has over their country and finding ways to make the oil revenue work for them (rather than the other way around).
Succeeding in this will be a daunting task, but it will get progressively easier with each small step made in the right direction. First, Nigeria will need to focus on its broken macroeconomic policy and come up with fiscal solutions that will alleviate rather than exacerbate the volatility of oil prices. Some steps have already been taken in this direction, such as the OPFR budgeting, and the positive feedback has been immediate. These steps have earned praise and a boost in confidence from the IMF (Nellor, 2008), which bodes well for Nigeria shaking its image problem and getting connected with the tools it needs to complete its development. Second, Nigeria needs to find new and inventive ways to distribute the windfalls from the oil industry. In these first 50 years, oil money has done nothing to alleviate poverty (as noted, poverty has gotten worse in that timespan), with over 85% of the money going to just one percent of the population (Chavkin, 2010). Getting the money distributed out to the people of Nigeria will have a large effect on reducing poverty and stimulating the economy, plus the strife and violence surrounding oil will decline if everyone is able to share in the benefits the industry provides. Above all, the oil profits in Nigeria need to be dedicated to useful ends, such as direct payouts or improved spending on infrastructure and human development, and not pointless and wasteful vanity and patronage projects like the shameful $347 million soccer stadium that was recently announced while the country was struggling to restructure $23 billion in foreign debt (Bill, borrow, and embezzle, 2001).
Finally, global institutions will have to take a more committed and responsible approach toward Nigeria, ending the pattern of exploitation for oil access in favor of a more cooperative approach. Economic institutions, like the IMF and World Bank, need to continue and redouble their efforts in providing debt relief and financial assistance, multinational oil companies need to take more accountability for their impact on the environment and politics of Nigeria, and foreign governments (particularly the oil-hungry superpowers) need to begin to consider the ethical and social responsibilities that come with their ravenous oil consumption. The United States, for one, consumes half of all of Nigeria’s oil, yet has done almost nothing in terms of assistance in the Niger Delta (Mähler, 2010). America needs to realize that this level of consumption makes it accountable for enabling the violent and ruinous status quo in Nigeria, and that if it wants to continue to enjoy the constant flow of oil from the Niger Delta, it needs to take some responsibility for the fates of the people trapped in the war zone that the oil industry has created.
The success or failure of finding new solutions in these key areas will determine if Nigeria becomes a positive example of how to break out of the chains of the resource curse or just another tragic and bloody cautionary tale to be filed alongside The Treasure of the Sierra Madre.
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Figure 1. Percentage of Nigerians living under $1 a day, trend since 1975. This number has increased since oil was discovered in Nigeria, despite the billions of dollars that the oil industry has brought in. (Mähler, 2010).
Figure 2. Human Development Index score for Nigeria (brown line) trend since 1990. The gray line directly underneath it represents the trend for the whole of Sub-Saharan Africa in the same time span, which is almost exactly identical. (United Nations Development Programme, 2009).11.9.13
A paper I wrote in 2010 about the gruesome stalemate in Western Sahara, the humanitarian consequences, and possible paths forward.
There is perhaps no more appropriate emblem of hopeless and intractable conflict than a 1,500 mile long wall, heavily fortified with land mines and armed outposts, spanning throughout some of the harshest and most uninhabitable desert on earth. Indeed, recognizing the absurdity of an interminably long armored barricade arbitrarily dividing two oceans of sand in the parched and sparsely populated Western Sahara is a good way to prepare for understanding the diplomatic, political, and military stalemate that has dragged on in the region for over 30 years. Formerly known as Spanish Sahara, the stretch of desert and coastline wedged between Morocco and Mauritania (covering an area roughly the size of Colorado) has been in a state of diplomatic limbo ever since the Spanish hastily withdrew their colonial claim on the territory in 1976. Rather than this withdraw paving the way for self-rule for the native Sahrawi people of Western Sahara, the country was promptly invaded and partitioned, and currently is occupied by Morocco, which to date still asserts sovereignty over the region.
Since then, the Sahrawi have been locked in a seemingly endless struggle for self-determination, demanding independence for Western Sahara while Morocco insists that the land is an integral and inseparable part of their territory. The fact that maps today still mark off the region with a dotted line and a nebulous note about its undetermined status (just like the Cold War-era antique globe on my desk does) signals that Western Sahara is home to a great and long-running failure in the modern diplomatic system.
The conflict in Western Sahara is a particularly spectacular failure of diplomacy, and one that is worthy of exploring to shed light on the nature of intractable conflict and the fundamental flaws and limitations of the various ways the modern world works to resolve disputes of this nature. Looking at the long history of Western Sahara, it is clear that every tool in the diplomatic toolbox has been used to bring the conflict to a satisfactory resolution, and every one has, in its own way, completely failed at the task. Ultimately, the plight of the Sahrawi in Western Sahara illuminates a central problem in the international system that is as old as diplomacy itself: How can a territorial dispute ever be resolved when the two parties have diametrically opposing demands (full independence versus full Moroccan integration, in this case) that are impossible to reconcile?
In examining the history of Western Sahara, it will become clear that the strategies that are in use today for attacking these kinds of problems (specifically, armed conflict, diplomatic negotiations, political dealings, and the drafting and enforcement of international law) have all proven to be impotent in resolving this conflict, and that in order to cut the Gordian knot of this now generations-long dispute, new and inventive strategies need to be undertaken by the international community. The final section will look at the most recent developments in the ongoing struggle for self-determination in Western Sahara and the emergence of new ideas for how to resolve this conflict, specifically the nonviolent resistance movements by Sahrawi activists that have gained international attention recently. While it is too early to tell if these new tactics will meet with any more success than the old ones, it is encouraging to see new and innovative ideas coming into an old and exhausting stalemate. If, insha’Allah, a solution can be found to end the interminable stalemate in Western Sahara, the new strategies that are used to reach that goal will prove to be very instructive in how to best go about bringing permanent solutions to the countless other disputes of this nature around the world.
A Historical Background
The western edge of the Sahara entered into the realm of the modern state system when the Spanish claimed possession of the area (and named it Spanish Sahara) during the Berlin Conferences of 1884-85 in what is known as the “scramble for Africa”, where the various powers of Europe met to divide up the African continent in accordance to their imperial ambitions (Griffiths, 1986, p.204). Given the desolation of the region, Spanish presence was minimal, largely confined to a handful of settlements along the Atlantic coastline that had access to the rich fishing stocks of the ocean and the basic resources needed for human settlement. This, of course, did not stop them from inflexibly and arbitrarily enforcing their colonial borders. For example, when France and Spain could not come to an agreement on running a railway line from French-administered Mauritania through Spanish Sahara, the French instead elected to build a long tunnel that bored in and out of a long a granite mountain ridge just on the Mauritanian side of the border in order to complete their line (p.210). While quite an engineering feat, the Choum tunnel was truly a landmark accomplishment for the pointless intransigence of colonial powers and their enforcement of arbitrary borders.
Far removed from the glittering palaces of Berlin where the colonial fate of Western Sahara was meted out were the local inhabitants of the land. The Sahrawi, as they are known, were descendents of nomadic Bedouin Arabs who migrated west in the 13th century and integrated with the local natives, introducing Islam and their particular dialect of Arabic, Hassaniya, to the region (Simanowitz, 2009, p.299). As Spanish involvement in the territory increased in the 1960s, due to the discovery of rich phosphate deposits beneath the desert (p.299), a growing wave of anti-colonial nationalism began to form in the Sahrawi population. In 1973, Sahrawi nationalists formed the Polisario Front, a movement determined to evict colonial forces and enact self-rule in Western Sahara, and began an insurgency campaign that successfully hastened the decolonization of the territory (p.300).
Sensing the end to Spain’s rule in Western Sahara, both Morocco and Mauritania asserted claims to the territory, both of which were shot down by the International Court of Justice, which saw no legitimate ties to the region by either country (p.300). In 1975, the United Nations addressed the situation in Spanish Sahara by passing a resolution acknowledging the inalienable right of self-determination for the people of Spanish Sahara (U.N. General Assembly, 1975), reaffirming a 1960 ruling declaring colonial subjugation a denial of basic human rights and calling for decolonization and self-determination in colonial territories (U.N. General Assembly, 1960). Shortly thereafter, Spain ended its imperial project in Western Sahara (marking the end of “Spanish Sahara”), but rather than using its administrative power to broker an arrangement for self-determination by the native people (which it was directly called upon to do in the 1975 resolution), it instead signed an agreement dividing the land between Morocco and Mauritania, in spite of the mandate for self-determination made by both the United Nations and the International Court of Justice (Simanowitz, 2009, p.300).
As Spain withdrew in 1976, Morocco immediately undertook a massive migration into Western Sahara, ultimately settling around 350,000 people in the territory in a ploy to legitimize their annexation of decolonized land (Theofilopoulou, 2006, p.3). Dubbed the “Green March”, this unarmed invasion greatly disrupted the demographics of Western Sahara, which was previously inhabited by a mere 75,000 Sahrawi (Franck, 1976, p.694). This proved to be a serious complicating factor in later diplomatic efforts in the region, as disputes over who qualified to vote in a referendum on self-determination for Western Sahara led to a diplomatic stalemate that ultimately prevented any vote from taking place. With Morocco, Mauritania, and the Sahrawi Polisario Front all making claims on the same territory, coupled with a distinct lack of intervention by the international community (p.695), the conflict inevitably escalated into a bloody and protracted war that would last for 15 years. This armed conflict marked the first attempt to resolve this territorial dispute and, not surprisingly, the first abject failure to do so.
The First Plan: War. 1976-1991.
Armed conflict certainly is not the most elegant solution to a diplomatic problem, but there is some historical precedent for warfare being successful in bringing about independence and self-determination. Independence movements in the United States and Cuba, for example, began as armed rebellions, and owe much of their respective successes to victories on the battlefield. However, the Sahrawi independence movement faced much different circumstances than those revolutions. In the previous cases, the independence wars were fought against distant empires that were losing power on the international stage, and also depended on the help of sympathetic great powers for military assistance (France for the American Revolution and the United States for the Cuban Revolution). None of this was the case in Western Sahara, where the Sahrawi’s antagonist was not a remote power, but a neighboring state that had an overwhelming occupying force inside the country. Furthermore, Morocco enjoyed a very good international reputation as a close ally to the West, aiding the United States with military-basing agreements and diplomatic and military support in a region where close allies were hard to come by (Pazzanita, 1994, p.267). Ultimately, the powers of the West felt that preserving the fragile pro-Western government in Morocco was more important than the rights of self-determination by a very small number of Sahrawi, leaving the Western Saharan independence movement to fend for itself against their larger, wealthier, politically connected, and more militarily advanced adversaries in Morocco (Franck, 1976, p.696).
Despite being massively outnumbered, outspent, and lacking any political clout, the early years of the war proved to be quite successful for the Sahrawi independence movement. After being forced to flee to refugee camps in Algeria following the initial wave of bombings by the Moroccan air force (Pazzanita, 1994, p.270), the Polisario Front regrouped and began a series of guerilla attacks and hit-and-run missions that inflicted serious blows against the occupying forces while minimizing the extreme technological, military, and resources gap between the forces (p.271). In 1979, the success of these guerilla attacks forced Mauritania to pull out of the conflict, which was a major victory for the legitimization of Sahrawi rule in Western Sahara. The newly-formed government of the Sahrawi Arabic Democratic Republic (S.A.D.R.) was recognized by 52 (mostly third-world) countries, and was even admitted into the Organization of African Unity (O.A.U.), in spite of Morocco’s protests and eventual boycotting of the organization (p.272).
The military achievements of the Polisario Front in the 1970s and early 80s were short-lived, however, as Morocco responded by beginning construction on a massive wall around the perimeter of Western Sahara in 1980 to thwart any further guerilla attacks. Seven years later, the “Berm of Western Sahara” (one of the many names the wall is known by today) was completed, spanning 1,500 miles through the sandy and uninhabited expanse of the Sahara (Durch, 1993, p.155). With the entire territory effectively sealed off and the Polisario now permanently evicted into Algerian refugee camps, the war over Western Sahara ground to a stalemate. For the Polisario Front, there was no hope of penetrating the heavily armed fortifications surrounding their homeland to carry out its guerilla attacks, while Morocco faced the ruinous expense of committing 100,000 troops to defending a massive front through some of the most inhospitable desert on the planet (p.156). By 1991, it had become abundantly clear that the only resolution that armed conflict could bring to the dispute was an eternal standoff that was immensely costly for both sides. Seeing the futility of shedding more blood with no chance of victory, both sides agreed to a UN-moderated cease-fire on the condition that a referendum be held on the self-determination of the Sahrawi people (Simanowitz, 2009, p.300). This marked the beginning of the second attempt to resolve the situation in Western Sahara: the diplomatic process. As will be shown in the next section, this sparked another decade-long stalemate that proved to be just as frustrating and inconclusive (although, to be sure, considerably less bloody) as the previous 15 years of war, if not more so.
It is not surprising that armed conflict proved to be incapable of resolving the situation in Western Sahara. While there are a few examples of successful armed revolutions that have led to independence, there are countless more examples of insurgencies that drag on for many violent years and do little to advance the cause of independence. In retrospect, there was almost no chance of either side attaining total victory in combat. For the Polisario Front, the sheer mismatch of technology, resources, and number of fighters ensured that they could do little more than agitate the Moroccan forces with guerilla strikes, while the Moroccans faced the resource-consuming and (as the United States is learning in similar campaigns in Afghanistan and Iraq) largely unwinnable prospect of perpetually containing an insurgency. The stalemate that came after 15 years of war in Western Sahara highlights the fundamental inefficacy of armed combat in resolving territorial disputes, and if nothing else should serve as a cautionary tale against the idea that independence can be won with guns alone in the modern international system.
The Diplomatic Path: 1991-2004
While it is unsurprising, given what is commonly known about the futility of armed conflict, that the 15 years of war in Western Sahara conclusively proved that violence and bloodshed are ineffective tools in resolving complicated territorial disputes, the failure of diplomatic efforts to solve the problem over the next decade proved to be a much more jarring revelation about the dysfunctional state of the modern international system. Throughout the course of negotiations, three distinct approaches were used to find a solution to the problem: diplomatic negotiations to arrange for a referendum on the future of the territory, closed-door dealings aimed at finding a political solution to the conflict, and finally an appeal to the international community to come up with a course of action and force both parties to comply with the decision, regardless of their consent. While they will be presented here as three distinct and sequential courses of action, it is important to note that there was a great deal of overlap between the three plans, and often the diplomatic community tried to push multiple solutions simultaneously, often to the detriment of the overall peace plan (Theofilopoulou, 2006, p.16). In the end, though, it became clear that conferences, negotiations, and UN resolutions proved to be just as ineffective at bringing a lasting peace to the area as land mines, barricades, and guerilla attacks did the decade before.
Referendum Track: 1991-2000
After the dust settled and the open hostilities of war came to an end, the international community began to prepare for the post-colonial and post-war future of Western Sahara. In 1991, the United Nations created the Mission for the Referendum in Western Sahara (MINURSO) to provide the diplomatic and military infrastructure for monitoring and enforcing the cease-fire and to ensure that the Sahrawi were able to complete their referendum on self-determination (Theofilopoulou, 2006, p.3). The mission was based on the unambiguous resolutions passed by the General Assembly in 1960 and 1975 that established the inalienable right of self-determination for the people of the former colony of Spanish Sahara, and MINURSO set out to create an accurate voter registration roll in preparation for a vote within a few years’ time.
This idea proved to be far-fetched, as both sides immediately began to do everything in their power to ensure that the voter registration was stacked in their favor, seeing this as their last opportunity to control the outcome of the referendum. Initially, the Polisario insisted on simply using the registration records from the 1974 census taken by Spain. Morocco did not accept this, considering the Sahrawi population who had stayed around throughout the decolonization, partition, and war in Western Sahara would very likely have had strong sympathies for independence, and instead demanded that Sahrawis who had fled to Morocco to escape Spanish rule prior to the 1974 census should be included as well (p.4). It is clear to see Morocco’s motivation for this, since it is safe to assume that Sahrawis that had been living for a generation in Morocco would be, as a group, more supportive of integration. With all the contention over registration, the identification process moved very slowly. Morocco tried to advance their position by flooding MINURSO with applications (181,000 of them, nearly six times as many as the Polisario submitted), while the Polisario responded by delaying the appearances of Sahrawi sheikhs, who were required by MINURSO rules to give testimony to verify the citizenship of applicants (p.4).
By 1995, the registration process had ground to a halt, and the referendum plan was put on hold while both sides got together to explore a political settlement. As will be explored more in the next section, the talks proved to be unsuccessful, as Morocco refused to accept any compromise that even allowed for the possibility of Western Saharan independence, while the Polisario would not accept anything that closed the door for the prospects of independence (p.5). With no room to maneuver between these two immovable positions, the attention shifted back toward the referendum plan. Under the leadership of newly-appointed United Nations special envoy James A. Baker III, a former US Secretary of State and seasoned diplomat and negotiator, MINURSO started up again in late 1997 with a new zeal for finalizing the voter identification process, although, it would appear, with no new plan for overcoming the problems that stalled out the project the first time around. After a long and arduous identification process, MINURSO completed its registration rolls in December of 1999, confirming 83,368 of the 198,469 applicants (p.8). This did not bring a referendum any closer, though, as Morocco protested the identification process and announced it would present 79,000 appeals.
In hindsight, considering the unresolved contention between the two parties about the identification process from the onset, the registration project appeared to be doomed from the start, as it was quite clear that the side who saw the results as unfavorable to them would refuse to accept their fairness. By February 2000, the referendum plan had been deemed impossible, given the disagreements about the registration process and the ability for each side to drag out the process forever (p.8). Additionally, it became clear that holding the referendum, by then already an impossible dream, would not even bring a resolution to the problem, because there was no way to enforce the decision that was made and, if history was any indication, no chance that the losing party would accept the legitimacy of the decision (p.9).
In the end, the referendum track left nothing to show for nearly nine years of intense diplomatic efforts. It is somewhat tragic that it took until the February 2000 report for the international community to recognize that driving for a referendum was not the correct approach to the situation in Western Sahara, especially since the issues that scuttled the whole process, namely the refusal by both sides to accept registration results that would not guarantee their victory in a vote, were obviously apparent from the very first days of the identification process. As a result, nine years were flushed away for the Sahrawi self-determination movement, which is doubly tragic when taking into account that the majority of those Sahrawi spent those years in refugee camps in the scorching Algerian desert, unable to make a living for themselves and wholly dependent on humanitarian aid for survival. With the hopes of a referendum effectively dashed, the conflict in Western Sahara moved to its next phase: an attempt to strike a political deal.
Political Dealings: 2000-2004
During the long years of working toward a referendum, the United Nations also kept open the possibility of resolving the conflict by facilitating a political compromise between the two parties. The first effort to do this took place in 1995-97, after the first round of voter identification for the referendum stalled out. The 1995 talks came to an abrupt end when Morocco automatically terminated the discussion on the first mention of independence by the Polisario, and 1996 talks failed to even materialize when the Polisario refused to agree to the precondition that any mention of independence was forbidden (p.5). While the referendum process began again in earnest in 1997, the UN still held out hope that the parties would eventually come together and negotiate a political compromise. In fact, as early as 1995, UN Secretary-General Boutros Boutros-Ghali told the Security Council that the referendum process was all but hopeless, and that he hoped the continued voter registration process would put pressure on both sides to come to the negotiation table (p.6). The fact that MINURSO vetted and processed nearly 200,000 identification applications over five years following the Secretary-General’s admission that the referendum project was a lost cause shows what a futile and Sisyphean decade the 1990s were for diplomatic pursuits in Western Sahara.
A second round of political negotiations began in 2000 when the second attempt at completing the referendum process failed. The first several rounds of meetings produced nothing fruitful, as nothing had changed since the unproductive talks of 1995-96 (doing the same thing over and over and getting the same result was emerging as a common theme for UN diplomacy in Western Sahara). Finally, Baker elected to take matters into his own hands, and in 2001 drafted the Framework Agreement (FA) on the Status of Western Sahara, which sought to appease both sides by providing for a five-year period of increased autonomy for Western Sahara that would functionally be halfway between independence and integration, followed by a referendum to determine the final status of the territory (Simonawitz, 2009, p.303). While far from perfect, the plan marked the best possible compromise that accommodated for the demands of both sides and provided each party with an equal opportunity to get their way in a fair and legal manner. After revising the document in accordance to the suggestions of both sides, Baker presented all of the parties with the final proposal, which gained approval from the United Nations and, in July of 2003, the Polisario (p.303). Attention then turned to Morocco, the last piece in the puzzle to the completion of a political solution that would, in time, bring a final resolution to the conflict.
Between December 2003 and April of 2004, Morocco offered three counter-proposals to the peace plan. The first proposal was sent back by Baker because it did not allow any provision for possible independence for Western Sahara, even the watered down provision of referendum after five years that was in Baker’s plan. Making it clear that this provision was an indispensable part of the plan and the only possible way to create a fair and effective political compromise, Baker requested that the Moroccans come back with a proposal that included the possibility of independence. Once again following the general theme of negotiations over Western Sahara, Morocco’s next two proposals were not at all substantively different than the first in terms of the independence question, and the message was clearly sent that they had no interest in accepting the peace plan. The project was scrapped, and Baker tendered his resignation from his post on June 1, 2004, a development for which the Moroccans made no efforts to conceal their delight (Theofilopoulou, 2009, p.13).
At the end of the day, stripping away all of the political posturing and intense negotiations, the political solution failed to provide any way to deal with the fundamental issue: the Moroccans did not want there to be any way for Western Sahara to gain independence, and the Polisario did not want to agree to anything that did not provide for the possibility of independence. The peace plan was an effort to elaborately dress up the situation and coax both sides into agreeing to a long-term plan that left both outcomes in the hazy realm of possibility, but ultimately both sides saw through the extraneous details to the heart of the matter: whether or not it left the door open for independence. Neither side was willing to accept an agreement that did not match their position on this subject, and it was not possible to draw up an agreement that simultaneously allowed both positions. Regardless of how skilled the negotiator was, and James A. Baker was as skilled as they come, there simply was no middle ground between “yes” and “no”, and no way to reconcile such a fundamental disagreement and craft a political compromise.
An Appeal to International Law: 2003-2004
After the tepid response from both sides to his 2002 Framework Agreement, Baker began to sense that the prospects of both parties agreeing to any solution was growing slim, and looked to the United Nations Security Council to explore the next step, which would be for the international community to forcefully impose a solution to Western Sahara without the consent of the concerned parties. After over a decade of failing to get the two sides to agree to anything, it was becoming clear that if a solution, any solution, was to be brought to Western Sahara, it would have to be imposed on the parties from the outside, as ten years of fruitless negotiation had proven once and for all that there was no compromise to be found between their positions. Unfortunately, the international community was either unable or unwilling (most likely some combination of the two) to pass any resolution with enforcement power. In 2002, the Security Council passed a resolution that merely “invited Baker to pursue his efforts to find a political solution” (p.11), and in 2003, with entire fate of the peace plan dependant on passing a strong resolution to force Morocco’s hand, the Security Council passed resolution 1495, which “call[ed] upon the parties to work with the United Nations and with each other toward acceptance and implementation of the Peace plan” (U.N. Security Council, 2003), a meaningless platitude with no mention of any repercussions if it was ignored. If there was ever any hope that pressure from the Security Council would be tipping point for Morocco’s acceptance of the peace plan, it was completely dashed by the unambiguous passivity of resolution 1495.
The fact that the numerous resolutions passed by the United Nations General Assembly and Security Council never had any effect on the situation on the ground in Western Sahara is very illuminating about the true nature of interstate anarchy, and how the very concept of “international law” is, at least in the case of this territorial dispute, completely mythical. At the heart of the matter is the fact that a law is only as good as its enforcement, and with the United Nations either unable or unwilling to enforce any of its resolutions in Western Sahara, the slew of resolutions that were passed represent at best naïve optimism or, more cynically, meaningless kabuki theater aimed at merely providing the illusion of the existence of an international authority. If at the end of, say, a murder trial, the jury announced that they had unanimously agreed in deliberations on a resolution calling upon the prosecution and defense to work toward resolving the issue in accordance to the laws of the country, nobody would leave the courtroom feeling like justice had been done and that the rule of law had been followed. Similarly, anyone looking to the United Nations as a body of international law during the peace plan negotiation in Western Sahara would be left with a profound sense of the anarchy that exists in the absence of any authoritative international law.
A New Strategy of Nonviolence: 2004-Present.
Thirty years of stalemate have illustrated the inefficacy of the current diplomatic tools available to the international community in resolving territorial disputes, so in the absence of any diplomatic or military solution to the problem, Sahrawi activists have begun to explore alternative ways of bringing their dreams of independence to fruition. One of the most successful strategies has been a grassroots nonviolent resistance movement that has gained international attention for the plight of Western Saharans. Based on the principals of Strategic Nonviolent Conflict Theory popularized by Mahatma Gandhi, nonviolent movements seek liberation from tyranny through “nonviolent acts of refusing to submit to [one’s] own enslavement, thereby disempowering the tyrant” (Reitan, 2000, p.74). These movements have proven to be quite successful in bringing about freedom in India and South Africa in the 20th century, and have shown promising results in ongoing movements in places such as Kosovo (p.75) and East Timor (Mason, 2005) (places where, like Western Sahara, the strategies of warfare and traditional diplomacy have already been exhaustively and unsuccessfully pursued).
At the forefront of this movement in Western Sahara is a female Sahrawi independence activist named Aminatou Haidar, who is often referred to as the “Saharan Gandhi” (Morocco, 2009). An outspoken supporter of Sahrawi independence, she has earned several honors and awards from international human rights organizations (Amnesty International, 2009), as well as several long stays in Moroccan prisons for expressing her views (German, 2009, p.6). She made international headlines in November of 2009, when she was arrested by Moroccan authorities at the airport in El-Aaiún (one of the only entry ports in the disputed Western Sahara territory) for filling out “Western Sahara”, a country that Morocco vigorously asserts does not exist, as her destination address on her customs form. The fact that she was returning from an awards ceremony in New York where she had been honored with the Civil Courage Pride Award for persevering despite unjust persecution added a curious twist to the timing of this crackdown (p.7). After being expelled from Morocco and forced onto a plane that deported her to the nearby Spanish Canary Islands, Haidar began a hunger strike in the terminal of Laayoune airport, refusing to eat until she was permitted to return to her homeland. After 32 days and an emergency hospitalization after she began spitting up blood, Morocco finally acceded and allowed her to return safely to Western Sahara, signaling a major victory for the Sahrawi independence movement and a public black eye for the Moroccans as well as the Spanish government, which was deemed to be a willing co-conspirator in the persecution of a political activist (Spain, 2009).
At this point, it is not possible to judge how much closer, if any, Western Saharan independence comes with each successive hunger strike or sit-in, but there is ample historical precedent to be encouraged that, over the long haul, these efforts could prove successful where the traditional tools of war and diplomacy failed. If nothing else, it is meaningful that fresh ideas are being brought to the table after the nearly 40 years of stalemate that has proven to be the sole legacy of traditional diplomatic efforts in Western Sahara. Just like the Gordian knot of mythology, the only way to unravel the deadlock in Western Sahara will be to abandon the thoroughly exhausted strategies that history has proven to be exercises in futility and approach the problem from a completely different perspective. If nothing else, the actions of Ms. Haidar and her fellow activists have succeeded in breaking the cycle of using outmoded and demonstrably ineffective techniques to address the conflict and instead sought a new and revolutionary solution.
When studying the long stalemate in Western Sahara, it is easy to feel the overwhelming sense of frustration and futility that has pervaded the last 30 years of diplomatic efforts there. Each strategy that has been undertaken to address and resolve the conflict has hit a brick wall when confronted with the impossibility of reconciling the demands of the two parties. In truth, the presence of a fundamental and irreconcilable disagreement rendered the diplomatic strategies of resolving the situation failures before they even started. Without any agreement on who should be allowed to vote and no means of enforcing the result, a referendum on self-determination was a hopeless non-starter for ending the conflict. Without any middle ground lying between the Sahrawi demands for independence and the Moroccan demand for full integration of Western Sahara, there was no prospect of striking a political deal. And finally, with no way for the United Nations to force a solution in Western Sahara that was not agreed to by all parties, international law could not end the stalemate. For the traditional tools of modern diplomacy, it was three swings and three misses in Western Sahara. While there is an important lesson to be learned about the inefficacy of these diplomatic tools when dealing with an intractable territorial conflict of this sort, it is unfortunate that 30 years have been squandered away in learning it.
Accepting this, it is now clear that the only way forward in Western Sahara is to take a step back from the tired and ineffective strategies that have been unproductive for an entire generation and look to find a new and fresh way to attack the problem. The nonviolence movement has shown some promise in its small but meaningful victories recently, but it is important to keep searching for fresh ideas and approaches in the event that this strategy, like all of the ones preceding it, eventually peters out into perpetual stalemate. The international community cannot afford for another 30 years of Sahrawi freedom to vanish away under the shifting sands of the Sahara.
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 For a good visual reference, the satellite map located at http://maps.google.com/?t=h&ie=UTF8&om=1&ll=21.347304,-16.277082&spn=0.003727,0.005246 provides a great insight on the true remoteness of the Berm of Western Sahara. Partially swallowed up by shifting sand dunes, a lone fortress along the wall stands in, truly, the middle of nowhere. It takes several clicks on the “zoom out” button before anything besides sand can be seen, and even more before a road, river, or any other sign of human life emerges.