ARGENTINA: JUSTICE DEFERRED IS NOT JUSTICE DENIED

Earlier this week in an Argentinean criminal court, Alfredo Ignacio Astiz, nicknamed the ‘Blonde Angel of Death’ for his famed good looks, was handed a life sentence for his part in the “dirty war”, the darkest period in the history of Argentina. Astiz was found guilty of crimes against humanity, torture, kidnapping and the facilitation of forced disappearances. The trial of Astiz brought to an end a 22-month trial which saw four of the accused handed 18-25 year sentences and 12 defendants sentenced to a term of life imprisonment.

The “dirty war” refers to the period of between 1976 and 1983 during which a military junta led by Jorge Videla and Reynaldo Bignone ruled Argentina. The military government came to power following the coup d’etat which saw the overthrow of Isabel Peron. During their rule, human rights groups estimate that about 30,000 people were killed or made to disappear by death squads in the government’s campaign to suppress dissent by opponents of the regime in the 70s and 80s. Astiz was also said to have been charged with responsibility for operating the torture centre, Escuela de Mecanica de la Armada or the Naval Mechanical School (ESMA) where political opponents of the government were imprisoned, tortured and in many cases killed.

Human Rights groups have also estimated that only about 200 people survived out of the 5000 prisoners held in ESMA. The most unsavoury methods of suppression employed by the government at the time included stealing babies from pregnant prisoners and giving them up for adoption to families who were supporters of the government, executing the biological mothers of these babies, executing dissidents by firing squads and throwing opponents into the Atlantic Ocean or the River Plate.

Until 2005, survivors and families of victims of the “dirty war” were denied justice as a result of an amnesty law adopted in 1987 to prevent a military rebellion after a return to civilian rule in 1983. However, the Argentinean Supreme Court reversed this in 2005 by repealing the amnesty following the recommendation of Nestor Kirchner, the former Head of State and late husband of the current President Cristina Fernandez. Since the revocation of the amnesty, several members of the top brass of the junta have been tried for abuse committed during that period. Former military Presidents Jorge Videla and Reynaldo Bignone were handed two life sentences and a 25 year sentence respectively for their roles in the atrocities.

The bringing to justice of the likes of Astiz and Videla would have been almost impossible to achieve without the unwavering determination of the Mothers and Grandmothers of Plaza de Mayo who have steadfastly campaigned in search of justice on behalf of their relatives for over three decades. The Mothers of Plaza de Mayo comprise a group of Argentine women human rights activists who are seeking reunification with their sons and daughters who were abducted by the military during their rule. The Grandmothers of Plaza de Mayo was founded in 1977 with the aim of locating stolen babies whose mothers were subsequently killed by the government in order to return them to their biological families.

The convictions of Astiz and his counterparts are significant as it sends an important message to dictators who have presided over regimes with appalling human rights credentials. This message being that whilst justice might be delayed by the exile of these individuals in safe havens, or the imposition of amnesty laws, justice eventually catches up with offenders as Astiz and Videla have discovered in Argentina and as Charles Taylor is currently finding out at his trial at the International Criminal Court in The Hague. The outcome of the Argentinean prosecutions will not have escaped the attention of the Burmese, Zimbabwean and Syrian regimes who have also utilised measures favoured by Astiz and Co in order to suppress the peaceful voices of protests in their respective countries.

THE KENYAN INVASION OF SOMALIA: IS THIS TAKING SELF DEFENCE TOO FAR?

On Thursday of the past week, the Kenyan government confirmed that its troops had been sent into the territory of its neighbours, Somalia, in response to the recent spates of kidnappings allegedly perpetrated by the al-Shabab militia who operate out of Somalia.


The Kenyan Incursion

Al-Shabab, which is said to be strongly linked to al-Qaeda and who exercise control over Southern and central Somalia are blamed for the killing of Briton, David Tebutt and the abduction of his wife from a Kenyan resort, the killing of a French woman following her kidnap from her holiday home in Kenya and the kidnap of aid workers – Montserrat Serra and Blanca Thiebout – of Medicins Sans Frontieres (MSF) who were recently seized from a refugee camp at the Kenya-Somalia border. “The security of our country is paramount. We will defend our territorial integrity through all measures necessary to ensure peace and stability” stated Kenyan President Mwai Kibaki to the press on 20th October 2011. Mr Kibaki added that “all necessary measures” included military operation within and outside Kenya.


Legal Basis

The Kenyan government insist that the UN Charter legitimises its incursion into foreign territory. “These measures will involve invoking Article 51 of the UN Charter that pronounces self-defence as an inherent right and which is also keeping with the current Kenyan constitution,” said the Kenyan Minister for Internal Security, George Saitoti. The legal instrument referred to by Mr Saitoti, that is Article 51 of the UN Charter, provides that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN.” In line with this provision, it would appear that Kenya is thus legally entitled to resort to force.


The Somalian Position

However, the Somalian position is acutely converse to the views espoused by the Kenyan government which justifies its operation on Somalian soil. Somalia’s envoy to the UN, Omar Jamal, has stated that the Kenyan incursion constituted a violation of its sovereignty. Mr Jamal stated: “There is a very serious concern from the Kenyan government that there have been some kidnappings in their country, but at the same time I think that to take the very unilateral action of going into Somali territory is a breach of international law.” In an interview, the contents of which was published in an article in The Independent on 17th October 2011, the Somalian Ambassador to Kenya, Mohammed Ali Nur, reiterated the views of Omar Jamal on what he perceives as a clear violation of its territory by Kenya. “As a sovereign country we cannot condone any country crossing our border…we will not allow any country to invade us.”


Self defence against non-State actors

Of course, every country has a right to defend itself against armed attacks and in this vein many will agree that the Kenyan government is entitled to take measures, military and otherwise in response. However, the issue of the legality of counter-measures adopted by Kenya is threatening to strain the relationship between the UN-backed Somalian transitional government and the Kenyan government. Unfortunately the text of the UN Charter fails to resolve the disagreement between the countries. The difficulty lies in the fact that the UN Charter was drawn up at a time when armed attacks by non-State actors against another State was a rarity, or perhaps not anticipated to constitute the problem which has achieved conundrum-like status. It was therefore left for case law, academics, UN resolutions and the International courts to attempt to purify the muddied waters. Importantly, Judges at the International Court of Justice (ICJ), whilst considering the legality of the construction of a wall in occupied Palestinian territory, discussed the matter of whether Article 51 of the Charter recognises the existence of an inherent right to self defence in the case of an attack on a State by a non-State actor. Needless to say, the great opportunity which lent itself to these legal practitioners to clarify matters was squandered following disagreements over the interpretation of the said Article of the Charter.


Muddied waters

However, Resolution 1368 (2001) and Resolution 1373 (2001) which were adopted in the aftermath of the 9/11 attacks both appear to acknowledge a right to respond to such attacks although there has been no resolution since then with similar wording or impact. If this is an endorsement of the above, then it would appear that the Kenyan government’s actions are legal under international law. However this assertion would also seem to suggest that Rwanda may legitimately attack Congo DRC for harbouring forces aligned with the Democratic Forces for the Liberation of Rwanda (FDLR) which threaten the Rwandan border, or that Uganda may be entitled to legitimately launch military action against Congo DRC for harbouring Joseph Kony’s Lord’s Resistance Army (LRA) which has waged a 20 year rebellion against the Ugandan government of President Yoweri Museveni. In addition, the prospect may also exist of a full blown conflict between the NATO-propped Afghanistan government and Pakistan over what the US perceive to be the Pakistani government’s support for al-Qaeda and the Haqqani militia who utilise Pakistani territory in making their forays into Afghanistan. In the earlier referred-to Congo DRC cases, the Congolese government seems to lack the capacity to expel, as is the case in Somalia, the terror groups from operating within its territory. Given the increasingly complex world in which we live in, it goes without saying that the immediate clarification of this issue is imperative if the current misunderstanding relating to the text and scope of Article 51 is not to be replicated in the future.

FIRST EVER DECLINE IN TB GLOBAL RATES, SAYS WHO

The number of people falling ill with tuberculosis (TB) each year is steadily declining, says the World Health Organisation (WHO). The WHO 2011 Global Tuberculosis Control Report reveals that the incidence of tuberculosis and tuberculosis related deaths are at its lowest levels for a decade.


The Report’s Findings

According to the Report, tuberculosis related illnesses fell to 8.8 million in 2010, having peaked at 9 million in 2005. Tuberculosis deaths also dropped to 1.4 million, after peaking at 1.8 million in 2003. In addition, 2009 saw 87% of patients treated cured, with 46 million successfully treated and 7 million lives saved since 1995. Margaret Chan, WHO Director-General, attributes these findings largely to increased domestic and international donor support. She states: “in many countries, strong leadership and domestic financing, with robust donor support, has started to make a difference in the fight against TB.”

Tuberculosis (TB) is a contagious disease. Like the common cold, it spreads through the air. Only people who are sick with TB in their lungs are infectious. When infectious people cough, sneeze, talk or spit, they propel TB germs, known as bacilli, into the air. A person needs only to inhale a small number of these to be infected. In 2000, 189 countries which comprised the United Nations at the time recognised the scourge posed by the disease and made the eradication of the incidence, prevalence and deaths caused by tuberculosis as one of the eight Millennium Development Goals to be achieved by 2015. It is however unlikely that this component of the Millennium Development Goals will be achieved as the Report surmises that TB mortality rates are expected to drop by 50 percent in all parts of the world except for Africa.


Fears of TB Resurgence

Despite the huge progress being made in the fight against the disease, fears still remain that the gains made thus far could be easily reversed by the emergence of multidrug-resistant TB (MDR-TB). MDR-TB is a form of TB which is resistant to the most effective anti-TB drugs and does not respond to the standard six month treatment of the disease. It is also feared that a shortfall in funding could also hamper efforts to eradicate multidrug-resistant TB.

The United Nations Secretary-General, Ban Ki-moon, warns against taking the results of the Report for granted or resting on the significant laurels recently attained in the battle against the eradication of the disease. “Fewer people are dying of tuberculosis, and fewer are falling ill. This is cause for celebration,” said Ban Ki-moon. “But it is no cause for complacency. Too many millions develop TB each year, and too many die. I urge serious and sustained support for the Stop TB Partnership in the years to come.”


The Stop TB Partnership

The Stop TB Partnership was established in 2001 with the goal of eliminating TB as a public health problem and, ultimately, to ensure a world free of TB. It comprises a network of international organizations, countries, donors from the public and private sectors, governmental and non-governmental organizations (NGOs) that have expressed an interest in working together to eliminate TB.

Frighteningly, only 16% (about 46,000) of the estimated number of people infected with MDR-TB have received treatment worldwide. This alarming statistic may be attributed to the difficulty in obtaining an early diagnosis of MDR-TB. It is hoped that the new rapid test for MDR-TB endorsed by the WHO in December 2010 will modify the current method of diagnosis made redundant by the emergence of the MDR-TB, thereby ensuring that infected individuals are diagnosed quicker and can receive treatment as soon as they have been diagnosed. At present the new rapid test for MDR-TB is being used in 26 countries and this is expected to increase significantly in the coming months. Dr Mario Raviglione, Director of WHO’s Stop TB Department recognises the urgency in ensuring that all those infected are promptly diagnosed and offered treatment. Dr Raviglione states: “But the promise of testing more people must be matched with the commitment to treat all detected. It would be a scandal to leave diagnosed patients without treatment”.


Huge Achievements and Guarding against Complacency

Amongst the countries which have seen significant declines in cases of tuberculosis over the last decade are Kenya, Tanzania and Brazil. Notably, Kenya and Tanzania, countries which have seen a remarkable decrease in tuberculosis, have also seen a fall in the incidence rates of HIV/AIDS infections over the last ten years. Tuberculosis is a major killer of people infected with the HIV virus and the WHO state that a staggering 82% of people in Africa infected with HIV in 2010 developed TB. China has seen an even more marked decrease in tuberculosis prevalence and death rates. Tuberculosis death rates in China fell to 55,000 in 2010 from 216,000 in 1990 while prevalence rates tumbled to 108 per 100,000 population from 215 per 100,000 population.

Despite the huge successes achieved in the fight against the disease so far, the results of the Report should be considered with some caution. The authors of the Report admit that a third of estimated TB cases worldwide are not notified and as such it is unknown whether they have been diagnosed and properly treated. Arguably, this factor may have skewed the results of the Report somewhat. Drug-resistant TB strains and the drop in funding for TB-related global health programmes are undoubtedly the biggest challenges facing health experts worldwide and as such complacency should be guarded against in the far from won battle against tuberculosis.

HOW TO SOLVE A PROBLEM LIKE AFGHANISTAN?

The above question ‘How to solve a problem like Afghanistan?’ has now attained riddle-like status amongst international observers, NATO, coalition troops, the US and any interested parties concerned about the crisis in the country. Ten years this weekend, a US led NATO force invaded Afghanistan in the aftermath of the al-Qaida attack on the twin towers in New York, and the citadel of America’s Department of Defence, the Pentagon. The invasion led to the overthrow of the Taliban-led government in Afghanistan, one which accommodated the terrorist group, al-Qaida.

Thousands of dead coalition troops and tens of thousands of dead Afghan civilians later, the country remains in a state of political impasse and divisions which, if left unchecked, will inevitably result in civil war in a country which can least afford to be sucked back into the vortex of conflict. How to solve a problem like Afghanistan has led to the cooling of the symbiotic relationship between the US and its long-term ally, Pakistan. The relationship enabled the Americans to utilise Pakistani resources including personnel in its fight against the Taliban, al-Qaida and armed militants and in return, Pakistan was furnished with financial aid.

The relationship was put on ice following criticism of the Pakistan government by the US for harbouring and providing a safe haven for the Taliban and al-Qaida. The Pakistani government have also shown little by way of action to dispel or rebuff the allegation of their intelligence agency’s (the ISI) close links to the Taliban and the Haqqani network, the group of insurgents linked to recent spates of high profile attacks in Afghanistan including the 13 September siege on the US embassy in Kabul, last month’s attack on a US air base just outside of Kabul and the attack on the CIA headquarters in Afghanistan. Concerns have also arisen over what seems to be the Taliban’s increasing ability to infiltrate Afghan security network. The killings of several significant figures in the Afghanistan government are indicative of the level of success achieved so far by the Taliban, al-Qaida and insurgent groups. The deaths of Ahmed Wali Karzai, the half brother of President Karzai and an influential figure within the country’s government, and Burhanuddin Rabbani, the former President of Afghanistan, as well as the latest foiled attempt on the life of President Karzai by an ally perhaps underscores the reality of the new Afghanistan.

The reasons for the reversal of NATO’s gains in Afghanistan have well been documented. Several of which include the diversion of coalition resources to Iraq, NATO’s complacency in failing to ensure the retention of territory won from the Taliban, NATO’s failure to engage with civilians on the ground and Pakistan’s seemingly lackadaisical attitude towards tackling insurgents and militants operating freely from their territory, especially in the Waziristan region of the country. Analysts have especially identified the Waziristan region of the country as the base or the headquarters of the Taliban and insurgent fighters if you like. Further and importantly, the lack of a legitimate government as an alternative to the Taliban, as identified by the former NATO commander in Afghanistan, General Stanley McChrystal has also played a part in the country’s slide towards anarchy which has resulted from the porous security offered by the government to its people. President Karzai’s remark, on the 10th anniversary of the invasion of Afghanistan, to the effect that Afghans have been let down by the international community’s failure to provide adequate security did not escape the attention of observers.

With civil war looming and the 2014 withdrawal date of NATO combat forces imminent, the tidal wave of anarchy and violence will need to turn soon. Pakistan surely holds the key to any sort of success which can reasonably be achieved in Afghanistan. The war of words between both countries now playing out in the media is certainly counter-productive. Both countries will need to engage without the posturing currently being displayed as both have a lot to lose in the ongoing conflict. For one, the continuing conflict does little for the reputation or development of Pakistan which is perceived as a safe haven for militants. It is surely hoped that both countries can engage in meaningful discussions to bring about a peaceful resolution of the Afghanistan problem. The alternative is the reality of military conflict between both countries and observers would not have failed to note reports that the US may harbour intentions of attacking insurgents, namely the Haqqani group in Waziristan, the territory of its one time ally, Pakistan.

It is also impossible to positively foresee the current numbers of NATO-trained Afghan forces providing any sort of deterrence to militants after NATO combat troop withdrawal in 2014. Perhaps an extension of the combat troop mission past 2014 should be considered. Endemic corruption in high levels of the Afghan government has also served to reduce the credibility of the government in the eyes of its people. People on the ground have scarcely seen little of what democratic governance brings. President Karzai will need to accept this rather than resorting to his default position of blaming foreign contractors and foreigners for importing corruption into the country. A root and branch re-organisation of government will be needed to eradicate the stench of corruption which has significantly damaged the reputation of the government amongst its people as only then will the people witness and appreciate the results of sacrifice, blood and otherwise, paid by its people for freedom from the Taliban over the last decade.

Commendably, President Karzai has attempted to engage with the Taliban; however his half hearted attempts at engaging with them have proved unsuccessful. Pessimistically, one has to accept that the Taliban will always wield influence in Afghanistan; therefore, the government and the international community will have to accept that reality. New talks will have to be opened by the government of President Karzai, and this time, senior government officials will need to engage wholeheartedly in any sessions, meetings and dialogue held with the Taliban. It is unlikely that the Bonn International Conference on Afghanistan to be held in December will solve the problem that is Afghanistan. Securing peace and stability is undoubtedly a daunting prospect, but it is possible that the international community can rise to the challenge. The alternative is long-term relative decline into anarchy and decadence.

WORLD LOOKS ON AS IVORY COAST TRUTH AND RECONCILIATION COMMISSION IS LAUNCHED

A South African style Truth and Reconciliation Commission has been established in the Ivory Coast in the wake of the country’s civil war. The Commission, launched by President Alassane Ouattara in the last month, is tasked with healing the wounds sustained by the country as a result of the violence which followed last year’s disputed elections. The stand-off between the supporters of the incumbent at the time, Laurent Gbagbo, and his successor, President Ouattara, only ended with United Nations (UN) authorised strikes on the strongholds of the former.

Prior to 1999’s coup d’etat which brought the deposed President Gbagbo to power, the country, which is also the leading producer of cocoa in the world, was one of Africa’s most politically stable countries. The coup thereafter ushered in a period of political instability which culminated in the deadly violence which saw the death of about 3,000 people and the displacement of around 500,000 people in a 5-momth period between December 2010 and April 2011, according to observers and human rights organisations.

The newly sworn in Truth, Reconciliation and Dialogue Commission will consist of 11 members inclusive of civil, political and religious leaders. It was also revealed that Didier Drogba, the country’s most famous sportsman, will sit on the Commission as a representative of Ivory Coast citizens residing outside the country. It is unknown as yet, whether an amnesty, akin to that offered to perpetrators of human rights abuses offering full disclosure before South Africa’s Truth and Reconciliation Commission, will be given or issued to perpetrators of the violence in the Ivory Coast. President Ouattara opines that the institution of the Commission is essential to the reconstruction of the country in the aftermath of the war. To this effect, President Ouattara states: “the truth means that we need to express ourselves with an open heart, and have the courage to tackle difficult questions such as retaliation as well as the violence perpetrated on our population”.

Whether the work of the Commission will be able to erase the scars left by the civil war remains to be seen. The concept of a Truth and Reconciliation Commission has existed for many years in the form assembled in post-apartheid South Africa or in a derivative format such as Argentina’s National Commission for Forced Disappearances. It is not without its detractors, several of whom assert that the amnesty a times offered to perpetrators of human rights violations in return for a full and frank confession and account of crimes partaken in prevents criminals and murderers from being brought to justice. Additionally, as confessors may become immune from civil or criminal prosecution, it is impossible to ascertain whether the confessors are indeed providing a full account of their criminal actions where confessions are not made under oath. There are also concerns that the survivors are forced to relive the horrors and violence visited upon them through the accounts of the perpetrators.

However, Truth and Reconciliation Commissions have championed a new reconciliatory approach in dealing with human rights violations following periods of civil unrest, political impasse or civil wars as opposed to the more adversarial civil or criminal prosecutions. There is also no doubt that the account provided by perpetrators provides an opportunity to ascertain, analyse and understand the reasoning behind their actions in order to prevent their recurrence in the future. Further and contrary to the views of its critics, the grant of amnesties, as was the case in South Africa, was only sanctioned where the Commission deemed that the crimes were “politically motivated, proportionate, and where full disclosure was given by the person seeking the amnesty”.

It should be noted that UN observers and human rights organisations at the time of the conflict reported that both sides were responsible for carrying out serious human rights abuses; these abuses included rape, torture and summary executions. The fact that only the supporters of the former President, Laurent Gbagbo, have been charged with crimes carried out during the crisis has not escaped the attention of observers. If the Truth and Reconciliation Commission is to be successful, it is important that it is not seen to be an avenue which merely enables the execution of ‘victor’s justice’. Archbishop Desmond Tutu, the Chairman of South Africa’s Truth and Reconciliation Commission concurs in averring: “the perception that ‘victor’s justice’ is being applied would greatly undermine the reconciliation process.” Only the bipartisan indictment of soldiers, mercenaries and fighters from both sides and a full and frank disclosure provided by all those involved will lend any sort of credibility to the Commission and set the country on the road back to the recovery it so dearly craves.