Some commentators have speculated whether the advent of the ICC impedes peaceful transitions from dictatorship to democracy through closing down the possibility of exile and/or amnesty.  Take this example from the Wall Street Journal:

When Nigeria delivered exiled Liberian leader Charles Taylor to an international court in 2006, Libya’s Col. Moammar Gadhafi, whose regime had armed and funded Mr. Taylor, called it an “immoral act” and warned that “every head of state could meet a similar fate.”
Now that the International Criminal Court has opened an investigation into Col. Gadhafi himself, such fears may well be a reason why the Libyan leader has chosen to battle his own people instead of seeking exile like Mr. Taylor or Zine al-Abidine Ben Ali, the former Tunisian president now residing in Saudi Arabia.
Col. Gadhafi’s behavior illustrates a thorny moral dilemma: An international drive to ensure ousted dictators answer for their crimes may, perversely, end up prolonging their rule—and extract a heavy toll in human lives.

To put it kindly, these commentators have been shooting from the hip.
There are two closely related decisions taken by a dictator under power:  whether to give up power, and, if so, where to go next.  The first one is more important - both chronologically and emotionally.  While some dictators may be dessicated calculating machines able to decide with precision on the most logical step, many are emotional beings.  Their identity is tied with their regime (l’état, c’est moi), the protesters are impudence personified, opponents are betrayal incarnate; testosterone surges, and the amygdala in the brain shows increased signs of activity.  The decision not to give up power is not necessarily an rational one in which pros and cos are weighed and the presence of an ICC arrest warrant tips the scales in favour of staying put. I suspect (and this can never be proven given the unlikelihood of putting Mugabe, al Bashir or Gadhafi under an MRI scan, or conducting a large-n survey) the influence of an ICC arrest warrant is either negligible or merely is one further factor enraging the dictator in his moment of stress.  Until ICC arrest warrants are enforced more effectively, the effect is more likely to be negligible.    
The decision of the post Mubarak regime to prosecute him, using normal national laws on murder and corruption, with the possibility of the death penalty as a sentence, should give those speculating about the malign effects of ICC arrest warrants pause for thought.  There are many reasons for a dictator to cling on to power:  emotion, self identity, and self-preservation chief among them. You don’t need the threat of international justice to encourage obstinacy:  human nature and national criminal (not international) criminal law will do just fine.

Some commentators have speculated whether the advent of the ICC impedes peaceful transitions from dictatorship to democracy through closing down the possibility of exile and/or amnesty.  Take this example from the Wall Street Journal:

When Nigeria delivered exiled Liberian leader Charles Taylor to an international court in 2006, Libya’s Col. Moammar Gadhafi, whose regime had armed and funded Mr. Taylor, called it an “immoral act” and warned that “every head of state could meet a similar fate.”

Now that the International Criminal Court has opened an investigation into Col. Gadhafi himself, such fears may well be a reason why the Libyan leader has chosen to battle his own people instead of seeking exile like Mr. Taylor or Zine al-Abidine Ben Ali, the former Tunisian president now residing in Saudi Arabia.

Col. Gadhafi’s behavior illustrates a thorny moral dilemma: An international drive to ensure ousted dictators answer for their crimes may, perversely, end up prolonging their rule—and extract a heavy toll in human lives.

To put it kindly, these commentators have been shooting from the hip.

There are two closely related decisions taken by a dictator under power:  whether to give up power, and, if so, where to go next.  The first one is more important - both chronologically and emotionally.  While some dictators may be dessicated calculating machines able to decide with precision on the most logical step, many are emotional beings.  Their identity is tied with their regime (l’état, c’est moi), the protesters are impudence personified, opponents are betrayal incarnate; testosterone surges, and the amygdala in the brain shows increased signs of activity.  The decision not to give up power is not necessarily an rational one in which pros and cos are weighed and the presence of an ICC arrest warrant tips the scales in favour of staying put. I suspect (and this can never be proven given the unlikelihood of putting Mugabe, al Bashir or Gadhafi under an MRI scan, or conducting a large-n survey) the influence of an ICC arrest warrant is either negligible or merely is one further factor enraging the dictator in his moment of stress.  Until ICC arrest warrants are enforced more effectively, the effect is more likely to be negligible.    

The decision of the post Mubarak regime to prosecute him, using normal national laws on murder and corruption, with the possibility of the death penalty as a sentence, should give those speculating about the malign effects of ICC arrest warrants pause for thought.  There are many reasons for a dictator to cling on to power:  emotion, self identity, and self-preservation chief among them. You don’t need the threat of international justice to encourage obstinacy:  human nature and national criminal (not international) criminal law will do just fine.

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations

I’ve just returned from a good conference at Oxford on the crime of aggression. While Aegis doesn’t have an official position on the matter, my personal opinion is that it is logical for an NGO striving to prevent crimes against humanity and genocide to support measures which criminalise, punish and thereby inhibit and prevent aggression - if only for the simple empirical fact that most mass atrocities are committed in wartime.  (This isn’t a position shared by Amnesty and Human Rights Watch -  because they view themselves as solely focusing on human rights and advocating about war per se is beyond their purview - i.e. they’re happy to fight issues around jus in bellum but not jus ad bellum.  Some also argue that the addition of Aggression to the ICC’s workload will politicise and/or overload  the court.) 

Just one comment on the UK context.  As members of the P5 at the UNSC it’s fair to say that the UK and France were not at the forefront of the fight to crystallise Aggression in the Rome Statute.  However, neither France nor the UK wished to act as spoilers.

While the matter of ratification of the Rome Statute amendments is up to the Crown, the criminalisation of Aggression is up to domestic Parliaments.  In Scotland (now former) MSP Bill Wilson has persuaded the SNP to introduce the Crime of Aggression into Scots law over the next Parliament at Holyrood.  

Could the same occur in England and Wales?  I’d argue not.  Those arguing for the criminalisation of Aggression in England and Wales are too tempted to link the case to the 2003 Iraq war.  

As a matter of political strategy this is misconceived. The framing of the question is crucial.  If you ask centrist politicians (and these are the ones you need to persuade - not Jeremy Corbyn MP or Baroness Tonge) whether they’d be interested in building up a rules-based system which could help prevent and punish aggression as seen in the following wars when British service personnel lost their lives:  Korea - triggered when North Korea invaded in 25th June 1950), Gulf War 1991 - triggered when Iraq invaded Kuwait, Bosnia - triggered (partly) through Serbian and Croatian aggression, and Sierra Leone - triggered partly through Liberian sponsorship of the RUF rebels in Sierra Leone (see clause 2g of Article 8bis) - then they’ll open the door to you.   If you ask them whether they’d be interested in criminalising future actions such as Blair’s in Iraq in 2003 - then you simply won’t get a hearing - unless you’re at a Hampstead dinner party.  The UK’s (unlawful, in my view) decision to go to war in Iraq has to be addressed - but it’s a problem to work around, not a good “casus belli” for those who want to see Aggression criminalized in England and Wales or even those who want to see a straightforward ratification process.

John Demjanjuk has just been convicted of aiding and abetting the murder of 27,900 Jews.  
After his wartime service he escaped to the United States where he lived in Cleveland and, later, Seven Hills, Ohio.  He had his U.S. citizenship revoked in 1981 on grounds that he had been “Ivan the Terrible,” a notorious guard at the German extermination camp at Treblinka, Poland, in 1942 and 1943.  He was extradited to Israel and stood trial, but was eventually acquitted on all charges because the prosecutors had got the wrong man.  This led to the subsequent restoration of his U.S. citizenship in 1998.  
However, he was again denaturalized in 2004, and deported in 2009:  because he faced new charges in Germany on grounds that he had served as a guard at the extermination camps at Sobibor and Maijdanek, Poland, and also at the concentration camp at Floßenbürg, Germany.  
It was his misidentification as Ivan the Terrible which has caused most of today’s media attention on his trial (far less attention has been paid for example to an ongoing trial in Hungary - see this good Economist article riffing off the matter).  In legal terms the trial is notable for the judges’ decision that mere service at an extermination camp is enough to establish liability as an accomplice.  Hitherto, German prosecutors sought evidence of direct perpetration - a particular killing for instance.    
This opens up the possibility of more cases now being brought.  For instance in 2006, Elfriede Lina Rinkel of San Francisco was deported to Germany.  The U.S. Department of Justice alleged:
“In a settlement agreement reached with the Government, Rinkel admitted that she served as a guard at Ravensbrück, admitted that she was deportable from the United States under a federal law that mandates the removal of aliens who participated in acts of Nazi-sponsored persecution, and agreed to the entry of an immigration court order directing her removal to Germany by September 30, 2006.  Rinkel returned to Germany earlier this month pursuant to that order.
“When it was established in 1939, Ravensbrück was the only Nazi concentration camp operated exclusively for the internment of female prisoners.  The charging document states that while serving at Ravensbrück, Rinkel used a trained attack dog to carry out her guard duties.  At Ravensbrück, SS female guards armed with attack dogs forced malnourished women inmates to march to slave labor sites each day, guarded them while they performed manual labor, and then force-marched them back to the concentration camp, where they were held under notoriously inhumane conditions.  The charging document alleges that Rinkel’s activities at Ravensbrück assisted the Nazis in persecuting civilians on the basis of their race, religion, national origin, or political opinion, and that her removal from the United States is required by federal law.”
What the Department of Justice did not mention is that, for 60 years, Rinkel had hid her past from her family, her neighbors and her Jewish husband.
After deportation to Germany, The Times reported that “German prosecutors say that, having reviewed Rinkel’s case, they can find no evidence showing that she committed a crime.”
This may now be re-examined:  Already Thomas Walther, a former prosecutor who worked on the Demjanjuk case is hinting that this may be a ‘door opener’.  However, note that Rinkel served at a concentration camp rather than an extermination camp, and that Nazi war crimes cases are investigated by individual states in Germany rather than at the federal level and therefore political will and resources vary state by state.
Finally I’m glad to see the sentence.  I had previously argued against those who said this was a trial too far.  These trials should continue.  However, when the defendant is old and sick then (please forgive the sin of quoting myself) ”allowing the scales of justice to work, while sparing her sword, is to offer a glimpse of the humanity which concentration camp guards never showed their victims.” 

John Demjanjuk has just been convicted of aiding and abetting the murder of 27,900 Jews.  

After his wartime service he escaped to the United States where he lived in Cleveland and, later, Seven Hills, Ohio.  He had his U.S. citizenship revoked in 1981 on grounds that he had been “Ivan the Terrible,” a notorious guard at the German extermination camp at Treblinka, Poland, in 1942 and 1943.  He was extradited to Israel and stood trial, but was eventually acquitted on all charges because the prosecutors had got the wrong man.  This led to the subsequent restoration of his U.S. citizenship in 1998.  

However, he was again denaturalized in 2004, and deported in 2009:  because he faced new charges in Germany on grounds that he had served as a guard at the extermination camps at Sobibor and Maijdanek, Poland, and also at the concentration camp at Floßenbürg, Germany.  

It was his misidentification as Ivan the Terrible which has caused most of today’s media attention on his trial (far less attention has been paid for example to an ongoing trial in Hungary - see this good Economist article riffing off the matter).  In legal terms the trial is notable for the judges’ decision that mere service at an extermination camp is enough to establish liability as an accomplice.  Hitherto, German prosecutors sought evidence of direct perpetration - a particular killing for instance.    

This opens up the possibility of more cases now being brought.  For instance in 2006, Elfriede Lina Rinkel of San Francisco was deported to Germany.  The U.S. Department of Justice alleged:

“In a settlement agreement reached with the Government, Rinkel admitted that she served as a guard at Ravensbrück, admitted that she was deportable from the United States under a federal law that mandates the removal of aliens who participated in acts of Nazi-sponsored persecution, and agreed to the entry of an immigration court order directing her removal to Germany by September 30, 2006.  Rinkel returned to Germany earlier this month pursuant to that order.

“When it was established in 1939, Ravensbrück was the only Nazi concentration camp operated exclusively for the internment of female prisoners.  The charging document states that while serving at Ravensbrück, Rinkel used a trained attack dog to carry out her guard duties.  At Ravensbrück, SS female guards armed with attack dogs forced malnourished women inmates to march to slave labor sites each day, guarded them while they performed manual labor, and then force-marched them back to the concentration camp, where they were held under notoriously inhumane conditions.  The charging document alleges that Rinkel’s activities at Ravensbrück assisted the Nazis in persecuting civilians on the basis of their race, religion, national origin, or political opinion, and that her removal from the United States is required by federal law.”

What the Department of Justice did not mention is that, for 60 years, Rinkel had hid her past from her family, her neighbors and her Jewish husband.

After deportation to Germany, The Times reported that “German prosecutors say that, having reviewed Rinkel’s case, they can find no evidence showing that she committed a crime.”

This may now be re-examined:  Already Thomas Walther, a former prosecutor who worked on the Demjanjuk case is hinting that this may be a ‘door opener’.  However, note that Rinkel served at a concentration camp rather than an extermination camp, and that Nazi war crimes cases are investigated by individual states in Germany rather than at the federal level and therefore political will and resources vary state by state.

Finally I’m glad to see the sentence.  I had previously argued against those who said this was a trial too far.  These trials should continue.  However, when the defendant is old and sick then (please forgive the sin of quoting myself) allowing the scales of justice to work, while sparing her sword, is to offer a glimpse of the humanity which concentration camp guards never showed their victims.” 

Interview with Nazi War Crimes Prosecutor

  • SPIEGEL: After one-and-a-half years of hearings, the verdict is about to be handed down in the Munich trial of John Demjanjuk. Has the defendant's guilt been proven?
  • Maass: The verdict will tell us that. How the death factory in Sobibór worked has been thoroughly studied. The guards were involved at all levels of the extermination effort. They picked up people from the deportation trains and, in the end, drove them into the gas chambers.
  • SPIEGEL: For Christiaan F. Rüter, an Amsterdam criminal law professor, Demjanjuk is the "smallest of the small fish." He was a Soviet soldier who the Germans recruited him after he was captured.
  • Maass: This plight has to be taken into account, of course. But it doesn't mean that he was compelled to obey orders. Historians have not found any evidence that someone would have been shot if he had refused to participate in mass shootings.
  • SPIEGEL: Defendants got off with such arguments in the past. Why do the courts take a different view today?
  • Maass: At that time, the courts tended to pursue the principle that the last links in the chain of command were not to be charged. We have more comprehensive information today, such as data from Eastern European archives. Accounting for East German injustices has also given us greater insight into how much leeway existed in a dictatorship. In a groundbreaking 1995 decision, the Federal Court of Justice decided, for example, that the stricter standards that West German courts had applied to East German judges should also have been applied to Nazi judges.
  • SPIEGEL: But by then the Nazi judges had already died without ever being charged, like many organizers of the genocide. Now the courts are only prosecuting perpetrators at the lower end. Is that fair?
  • Maass: Of course not. The Allies released many of the main perpetrators after only a few years in prison, and the German courts could no longer touch them. In other cases, doctors were found who would declare 60-year-olds unfit to stand trial and issue the necessary documents, which stated that they suffered from ailments like heart problems, cirrhosis of the liver and silicosis. This doesn't fly anymore today.
  • SPIEGEL: How did you cope with this injustice?
  • Maass: You feel a certain queasiness, perhaps comparable with the feeling one has when shoplifters are caught while the big economic fraudsters manage to get away scot-free. But the alternative cannot be to let the shoplifters go, too.
  • SPIEGEL: Was the German judiciary persistent enough in investigating Nazi perpetrators?
  • Maass: Fortunately North Rhine-Westphalia decided to establish a specialized prosecution agency. But justice happens to be a matter for the states to decide …
  • SPIEGEL: … and in other places prosecutors were working on Nazi criminal matters in addition to their everyday activities, so that many cases fizzled out. The Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes in Ludwigsburg can only conduct preliminary investigations. Should the Federal Republic of Germany have developed a central agency to prosecute Nazi criminals?
  • Maass: You'd have to ask the politicians. There is no such thing in German law as a special offense for Nazi mass crimes. We prosecute people for murder or aiding and abetting. We criminal prosecutors have sometimes felt like road workers who are handed a screwdriver instead of a jackhammer.
  • SPIEGEL: To prosecute Germany's far-left Red Army Faction terrorists more efficiently, the judiciary concentrated its competencies in the office of the General Public Prosecutor in Karlsruhe. Why wasn't this done with the Nazi perpetrators?
  • Maass: It depends on where politicians set their priorities. They set their sights on leftist terrorism and pursued the criminal prosecutions that ultimately led to success. This doesn't apply to our cases. In retrospect, it would certainly have been correct to assign more prosecutors to research such cases. But decades ago they were saying that the problem would resolve itself for biological reasons, because the perpetrators would die. And now, 66 years after the end of the war, we have 12 active cases in Dortmund alone.
  • SPIEGEL: Does this mean that the Demjanjuk trial will not be the last one?
  • Maass: All I've done in the past few years is prepare cases that were supposedly the last of their kind. The problem, however, is that the defendants are becoming increasingly unfit to stand trial or are dying, as was the case with a former guard at the Belzec camp, who lived near Bonn.
  • SPIEGEL: You have dealt with dozens of men who committed murder during the Nazi era. Is there such a thing as the typical Nazi criminal, and how does he feel about his crimes?
  • Maass: I have never seen remorse. The usual excuse is that they acted in accordance with the law, as if there were no such thing as a higher prohibition against killing. There were sadists, but they were not the norm, which was more likely to be the ordinary accessory. "Hitler's Willing Executioners," though a controversial book title, hits the nail on the head. It was a large group of people who were prepared to do anything.
New map and searchable database of mass graves in Spain dating from Franco’s rule and Civil War.

New map and searchable database of mass graves in Spain dating from Franco’s rule and Civil War.

Fascinating working paper - though do read the usefully sceptical comments posted on Bill Easterley’s blog.

How persistent are cultural traits? This paper uses data on anti-Semitism in Germany and finds continuity at the local level over more than half a millennium. When the Black Death hit Europe in 1348-50, killing between one third and one half of the population, its cause was unknown. Many contemporaries blamed the Jews. Cities all over Germany witnessed mass killings of their Jewish population. At the same time, numerous Jewish communities were spared these horrors. We use plague pogroms as an indicator for medieval anti-Semitism. Pogroms during the Black Death are a strong and robust predictor of violence against Jews in the 1920s, and of votes for the Nazi Party. In addition, cities that saw medieval anti-Semitic violence also had higher deportation rates for Jews after 1933, were more likely to see synagogues damaged or destroyed in the Night of Broken Glass in 1938, and their inhabitants wrote more anti-Jewish letters to the editor of the Nazi newspaper Der Stürmer.

Hat Tip:  Chris Blattman and Bill Easterley 

The release of the U.N. report is a “Srebrenica moment” for Sri Lanka
Read Gordon Weiss’ excellent article on the new UN report investigating allegations of war crimes in Sri Lanka.
Thomas Lubanga, as the President of the UPC, took several decisions in order to demobilize minors in the UPC

Defence Witness 19, National Deputy Secretary of Customary Affairs of the UPC 

Read Lubanga Chronicle #107

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Less Than Human - The Psychology of Human Cruelty. David Livingstone Smith is co-founder and director of the Institute for Cognitive Science and Evolutionary Psychology at the University of New England. In this NPR interview Smith describes the process of dehumanization - a crucial element in allowing perpetrators to overcome social norms against killing and cruelty.

See Granito at its launch this weekend (see previous post). To get an idea of the quality of Skylight pictures’ films please see this film on the death squads and Shining Path in Peru - particularly relevant given the arrest of an alleged death squad member from Peru in bucolic Tiverton, Devon, UK last week.

Granito and When the Mountains Tremble at the Human Rights Watch Film FestivalFriday 25 March, 6.15pm – Granitoat the ICA (UK premiere) | Book now  Saturday 26 March, 4.00pm– Granito at the Curzon Soho | Book nowSaturday 26 March, 6.40pm – When the Mountains Tremble at the Curzon Soho | Book now
In the early 1980s, death squads roamed the Guatemalan countryside in a war against the un-armed indigenous population. Filmmakers Pamela Yates and Newton Thomas Sigel threw themselves into the task of bringing the crisis to the world’s attention by making When the Mountains Tremble, a documentary that took them into remote areas of the country where civilian massacres were taking place. Central to their story is Rigoberta Menchú, a Maya indigenous woman who was spurred into radical action by the murders of her father and two brothers and later won the Nobel Peace Prize for her work. 
Part political thriller, part memoir, Pamela Yates’ documentary Granito takes us through a haunting tale of genocide and justice as it explores how, years later, footage from When the Mountains Tremble became forensic evidence in a genocide case against the very military dictator who initially granted permission to film the atrocities. The two films screen as a special double bill at the Curzon Soho on Saturday 26 March. Pamela Yates will be present for a Q&A following these screenings and the UK premiere of Granito on Friday 25 March. 

Granito and When the Mountains Tremble at the Human Rights Watch Film Festival
Friday 25 March, 6.15pm – Granitoat the ICA (UK premiere) | Book now 
Saturday 26 March, 4.00pm– Granito at the Curzon Soho
| Book now
Saturday 26 March, 6.40pm – When the Mountains Tremble at the Curzon Soho | Book now

In the early 1980s, death squads roamed the Guatemalan countryside in a war against the un-armed indigenous population. Filmmakers Pamela Yates and Newton Thomas Sigel threw themselves into the task of bringing the crisis to the world’s attention by making When the Mountains Tremble, a documentary that took them into remote areas of the country where civilian massacres were taking place. Central to their story is Rigoberta Menchú, a Maya indigenous woman who was spurred into radical action by the murders of her father and two brothers and later won the Nobel Peace Prize for her work.

Part political thriller, part memoir, Pamela Yates’ documentary Granito takes us through a haunting tale of genocide and justice as it explores how, years later, footage from When the Mountains Tremble became forensic evidence in a genocide case against the very military dictator who initially granted permission to film the atrocities. The two films screen as a special double bill at the Curzon Soho on Saturday 26 March. Pamela Yates will be present for a Q&A following these screenings and the UK premiere of Granito on Friday 25 March. 

Colombian President Juan Manuel Santos has threatened to expel multinational companies who pay ransom money for the release of kidnapped employees.

Most policy responses to conflict, apart from hand-wringing, involve difficult ethical decisions.  Humanitarian aid can be diverted to armed groups, banning mining in conflict affected areas (yes I’m talking about you, Kabila) can have devastating effects on small scale miners, referral to the ICC might carry a risk that a particular tyrant digs his heels in… and so on.  But perhaps few are so acute as the issue of kidnap ransoms.

In comparison to the arms trade the issue of conflict finance is neglected.  Governments, whether rapacious or legitimate, of course can raise money through taxation.  However there are a wide range of potential sources of income for both rebels and governments:  natural resource sales (diamonds, coltan, oil, gold), local extortion (‘taxes’, roadblocks, protection money and bribes), and remittances from diaspora communities (think Tamil Tigers).  

There’s a prima facie case for focusing international attention on reducing conflict financing in a systematic way.  The theory is that wars should be shortened and therefore suffering reduced. Some might retort that its equally possible that the technology of violence might simply transmogrify into something less expensive - like the machetes used in Rwanda.  That’s true, but only up to a point:  all the way during the genocide Felicien Kabuga, the alleged financier of the genocide, was trying to raise funds to pay militias and the army at a time when all economic activity in Rwanda had ground to a halt. 

One source of conflict finance is the payment of large ransoms for the release of kidnap victims.  Ransoms have often been a future of warfare - they featured prominently in the 100 years war.  I have a friend who was kidnapped for several months in Ethiopia.  It was an extremely fraught time for his family and friends.  He was eventually released unharmed after long and successful behind the scenes work by the British Government.  Others have not been so lucky.

It is British policy not pay ransoms so the issue never came up, however I can entirely sympathise with families and work colleagues who can succumb to a demand. 

However ransoms, especially the large payments that are reported to be paid to Somali pirates or Colombia’s FARC, have significant negative externalities.  The money can be used for rearmament, supplies, pay and have the potential to lengthen or intensify conflict.  For instance, Paul Collier at the World Bank alleged that Mannesman paid USD$20m to Colombian rebel group ELN - enabling them to significantly upgrade their weaponry and expand their personnel.

Given the moral dilemmas involved it is likely that ransoms, like taxes, will always be with us.  However, there must be ways of limiting the growth in the size of such payments.  The traditional way of reducing externalities is to tax the polluter. There must also be ways, perhaps voluntary and with the agreement of the insurance industry and key governments, to enter into a compact to reduce the size of such payments.   Perhaps the growth of Somalia’s kidnapping industry will give ideas such as this new life.

UNSC referral of Libya to ICC

It’s worth pointing out several features of the UNSC’s referral of the situation in Libya to the International Criminal Court.

1) It was unanimous.  Not only did all the P5 positively vote for the referral (in the 2005 referral of Darfur to the ICC China and the USA abstained), but so did key ‘emerging’ powers who happen to be on the UNSC at the moment: Brazil, Germany, India, Nigeria and South Africa.  (Note that Brazil also abstained on UNSCR 1593 on Darfur, but has switched to a positive vote on Libya).  This is a key moment:  to have Russia, China, the USA, and India - the axis of sovereignty - refer a situation to the ICC is an important milestone in recognising both the utility and legitimacy of the Court.

2) Contrary to some mistaken reporting a clause inserted, one presumes, at the behest of the USA, does not exclude mercenaries from prosecution.  Paragraph six, pasted, below only refers to any future UN peacekeeping mission in Libya (see italicised text).

“6.   Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State

This is discussed in the ever excellent Opinio Juris.  This clause is an evolution of Bush-era policy, with the same end - to seek to protect US soldiers serving as peacekeepers from the jurisdiction of the ICC.  Kevin Jon Heller and Marko Milanovic point out that the Rome Statute certainly does not allow the UNSC to pick and choose what categories of suspects to refer to the ICC but note that this fight between the Court and the Security Council may not be enjoined for some while yet.  Watch this space.

3) It continues the highly unfortunate trend for the ICC’s situations to be solely based in the continent of Africa.  Of course, the situations have either been self-referrals (CAR, DRC, Uganda), UNSC referrals (Darfur, Libya) or the end result of deals cooked up by Kofi Annan and the Kenyan elite during a peace deal (Kenya - through strictly speaking this was an example of the the Prosecutor acting on his own initiative.  Moreover, the Prosecutor rightly states that geographic ‘balance’ should not be a criterion for the selection of situations. 

Nevertheless, one can feel the backlash taking shape:  take one post-colonial country, add a dash of oil, a splash of western threats of military action (in the discussion of no fly zones) and you have the recipe for the international justice skeptics to follow.   

“Blood on the leaves and blood at the root.”

There’s a great article by Dorian Lynskey in today’s Guardian about Billie Holiday’s almost unbearably moving rendering of Abe Meeropol’s Strange Fruit.

It is a clear, fresh New York night in March 1939. You’re on a date and you’ve decided to investigate a new club in a former speakeasy on West 4th Street: Cafe Society, which calls itself “The Wrong Place for the Right People”. Even if you don’t get the gag on the way in – the doormen wear tattered clothes – then the penny drops when you enter the L-shaped, 200-capacity basement and see the satirical murals spoofing Manhattan’s high-society swells. Unusually for a New York nightclub, black patrons are not just welcomed but privileged with the best seats in the house.

You’ve heard the buzz about the resident singer, a 23-year-old black woman called Billie Holiday who made her name up in Harlem with Count Basie’s band. She has golden-brown, almost Polynesian skin, a ripe figure and a single gardenia in her hair. She has a way of owning the room, but she’s not flashy. Her voice is plump and pleasure-seeking, prodding and caressing a song until it yields more delights than its author had intended, bringing a spark of vivacity and a measure of cool to even the hokier material.

And then it happens. The house lights go down, leaving Holiday illuminated by the hard, white beam of a single spotlight.

She begins her final number.

“Southern trees bear a strange fruit.” This, you think, isn’t your usual lovey-dovey stuff. “Blood on the leaves and blood at the root.” What is this? “Black bodies swinging in the Southern breeze.” Lynching? It’s a song about lynching? The chatter from the tables dries up. Every eye in the room is on the singer, every ear on the song. After the last word – a long, abruptly severed cry of “crop” – the whole room snaps to black. When the house lights go up, she’s gone.

Do you applaud, awed by the courage and intensity of the performance, stunned by the grisly poetry of the lyrics, sensing history moving through the room? Or do you shift awkwardly in your seat, shudder at the strange vibrations in the air, and think to yourself: call this entertainment?

This is the question that will throb at the heart of the vexed relationship between politics and pop for decades to come, and this is the first time it has demanded to be asked.

Written by a Jewish communist called Abel MeeropolStrange Fruit was not by any means the first protest song, but it was the first to shoulder an explicit political message into the arena of entertainment. Unlike the robust workers’ anthems of the union movement, it did not stir the blood; it chilled it. “That is about the ugliest song I have ever heard,” Nina Simone would later marvel. “Ugly in the sense that it is violent and tears at the guts of what white people have done to my people in this country.” For all these reasons, it was something entirely new. Up to this point, protest songs functioned as propaganda, but Strange Fruit proved they could be art.

It is a song so good that dozens of singers have since tried to put their stamp on it, and Holiday’s performance is so strong that none of them have come close to outclassing her – in 1999, Time magazine named her first studio version the “song of the century”.

Although lynching was already on the decline by the time of Strange Fruit – the grotesque photograph of a double hanging which moved Meeropol to pick up his pen had been taken in Indiana in 1930 – it remained the most vivid symbol of American racism, a stand-in for all the more subtle forms of discrimination affecting the black population. Perhaps only the visceral horror that lynching inspired gave Meeropol the necessary conviction to write a song with no precedent, one that required a new songwriting vocabulary.

Meeropol, who taught at a high school in the Bronx and churned out reams of topical songs, poems and plays under the gentle alias Lewis Allan, published a poem under the title Bitter Fruit in the union-run New York Teacher magazine in 1937. The later name change was inspired. “Bitter” is too baldly judgmental. “Strange”, however, evokes a haunting sense of something out of joint. It puts the listener in the shoes of a curious observer spying the hanging shapes from afar and moving closer towards a sickening realisation.

Meeropol worked out a tune and Strange Fruit quickly became a fixture at leftwing gatherings during 1938, sung by his wife and various friends. It even made it to Madison Square Garden, via black singer Laura Duncan. In the crowd was one Robert Gordon, who had recently taken on a job at Cafe Society, directing the headlining show by Billie Holiday. The club was the brainchild of New Jersey shoe salesman Barney Josephson: a pithy antidote to the snooty, often racist elitism of other New York nightspots. Opening the night before New Year’s Eve 1938, it owed much of its instant success to Holiday.

In her 23 years, Holiday had already seen plenty, although her notoriously unreliable autobiography Lady Sings the Blues obscures as much as it reveals. Born in Philadelphia, she spent some time running errands in a Baltimore whorehouse, “just about the only place where black and white folks could meet in any natural way”, where she first discovered jazz. After she accused a neighbour of attempting to rape her, the 10-year-old Holiday, an incorrigible truant, was sent to a Catholic reform school until her mother secured her release. Moving with her mother to New York, she worked in another brothel, this time doing more than errands, and was jailed for solicitation. Upon her release she began singing in Harlem jazz clubs, where she caught the eye of producer John Hammond, who made her one of the swing era’s hottest stars.

Meeropol played Josephson his song and asked if he could bring it to Holiday. The singer later insisted she fell in love with it right away. Meeropol remembered it differently, believing that she performed it only as a favour to Josephson and Gordon: “To be perfectly frank, I don’t think she felt comfortable with the song.”

Arthur Herzog, one of Holiday’s regular songwriters, claimed that arranger Danny Mendelsohn rewrote Meeropol’s tune, which he uncharitably dubbed “something or other alleged to be music”, which might have made the difference to Holiday.

Either way, Holiday road-tested the song at a party in Harlem and received what would become a familiar response: shocked silence followed by a roar of approval. Meeropol was there the night she debuted it at Cafe Society. “She gave a startling, most dramatic and effective interpretation which could jolt an audience out of its complacency anywhere,” he marvelled. “This was exactly what I wanted the song to do and why I wrote it.”

Josephson, a natural showman, knew there was no point slipping Strange Fruit into the body of the set and pretending it was just another song. He drew up some rules: first, Holiday would close all three of her nightly sets with it; second, the waiters would halt all service beforehand; third, the whole room would be in darkness but for a sharp, bright spotlight on Holiday’s face; fourth, there would be no encore. “People had to remember Strange Fruit, get their insides burned by it,” he explained.

It was not, by any stretch, a song for every occasion. It infected the air in the room, cut conversation stone dead, left drinks untouched, cigarettes unlit. Customers either clapped till their hands were sore, or walked out in disgust. Back then, before her life took a darker turn, Holiday was able to leave the song, and its politics, at the door on the way out. When Frankie Newton would hold forth on Marcus Garvey’s black nationalism or Stalin’s five-year plan, she would snap, “I don’t want to fill my head with any of that shit.” Holiday’s biographer John Chilton suggests that this was not because she wasn’t interested but because she felt embarrassed by her lack of education. All that she knew and felt about being black in America, she poured into the song.

Holiday’s regular label, Columbia, blanched at the prospect of recording it, so she turned to Commodore Records, a small, leftwing operation based at Milt Gabler’s record shop on West 52nd Street. On 20 April 1939, Holiday entered Brunswick’s World Broadcasting Studios with Frankie Newton’s eight-piece Cafe Society Band and recorded Strange Fruit in one four-hour session. Worried that the song was too short, Gabler asked pianist Sonny White to improvise a suitably stealthy introduction.

On the single, Holiday doesn’t open her mouth until 70 seconds in. Like Josephson with his spotlight, the musicians use that time to set the scene, drawing the listener in as if to a ghost story. Newton’s muted trumpet line hovers in the air like marsh gas; White’s minor piano chords walk the listener towards the fateful spot; then, at last, there’s Holiday. Others might have overplayed the irony or punched home the moral judgment too forcefully, but she sings it as though her responsibility is simply to document the song’s eerie tableau; to bear witness. Her voice moves softly through the dark, closing in on the swinging bodies like a camera lens coming into focus. In doing so, she perfects the song, narrowing the sarcasm of “gallant South” to a fine point and cooling the temperature of the most overheated image: “the stench of burning flesh”. She is charismatic but not ostentatious, curling the words just so. Her gifts to the song are vulnerability, understatement and immediacy: the listener is right there, at the base of the tree. Look, she is saying. Just look.

Released three months later, it became not just a hit but a cause celebre. Campaigners for an anti-lynching law posted copies to congressmen. The New York Post’s Samuel Grafton called it “a fantastically perfect work of art, one which reversed the usual relationship between a black entertainer and her white audience: ‘I have been entertaining you,’ she seems to say, ‘now you just listen to me.’ If the anger of the exploited ever mounts high enough in the South, it now has its Marseillaise.”

Holiday quit Cafe Society in August 1939, but she took Strange Fruit with her and carried it like an unexploded bomb. In Washington DC, a local newspaper wondered whether it might actually provoke a new wave of lynchings. At New York’s Birdland, the promoter confiscated customers’ cigarettes, lest their firefly glow distract from the spotlight’s intensity. When some promoters ordered her not to sing it, Holiday added a clause to her contract guaranteeing her the option. Not that she always exercised that right. “I only do it for people who might understand and appreciate it,” she told radio DJ Daddy-O Daylie. “This is not a ‘June-Moon-Croon-Tune’.”

Yet Holiday could no more detach herself from it than if the lyrics had been tattooed on her skin. Strange Fruit would haunt Holiday for the rest of her life. Some fans, including her former producer John Hammond, blamed it for robbing her of her lightness. Others pointed out that her burgeoning heroin habit did that job.

So did the persistent racism which poisoned her life just as it poisoned the life of every black American. In 1944, a naval officer called her a nigger and, her eyes hot with tears, she smashed a beer bottle against a table and lunged at him with the serrated glass. A little while later, a friend spotted her wandering down 52nd Street and called out, “How are you doing, Lady Day?” Her reply was viciously blunt: “Well, you know, I’m still a nigger.” No wonder she clutched the song tightly to her breast, as a shield and a weapon, too.

Holiday discovered heroin in the early 40s, an addiction that eventually earned her a year-long prison term in 1947. Ten days after her release, she performed a comeback show at New York’s Carnegie Hall.

According to Lady Sings the Blues, she accidentally pierced her scalp with a hatpin and sang with blood trickling down her face.

There could be only one contender for the closing number. “By the time I started on Strange Fruit,” she wrote, “between the sweat and blood, I was a mess.” Time called the performance “throat-tightening”.

During the 50s, she performed it less often and, when she did, it could be agonising to watch. Her relationship with it became almost masochistic. The worse her mood, the more likely she was to add it to the set, yet it pained her every time, especially when it prompted walkouts by racist audience members.

By the latter half of the decade, her body was wasted, her voice weathered down to a hoarse rasp, and Strange Fruit was the only song that seemed to dignify her suffering, wrapping her own decline in a wider American tragedy. Writing about her final years in his definitive book Strange Fruit: the Biography of a Song, David Margolick says: “she had grown oddly, sadly suited to capture the full grotesqueness of the song. Now, she not only sang of bulging eyes and twisted mouths. She embodied them.” It was as if the song, having lived inside her for so long, had finally warped its host.

Extracted from 33 Revolutions Per Minute by Dorian Lynskey, published by Faber & Faber Ltd on 3 March at £17.99. To order a copy for £13.59 with free UK p&p go to guardian.co.uk/bookshop or call 0330 333 6846