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SUBDUING CRIMINALIZED POWER STRUCTURES (CPS):

WAYS AND MEANS

 

A.    Sharpen pre-mission assessments to identify whether criminalized power structures are driving the conflict

 

1.     Issue

In none of the ten cases examined in this volume was the threat posed by criminalized power structures recognized or addressed when the mandate was written causing these missions to squander the “golden hour.” Typically, it took years or an existential crisis for missions to receive the authorities and capabilities to respond to the threat. Nothing in DPKO’s guidelines for strategic assessments[1] or for the Integrated Mission Planning Process[2] suggests that criminalized power structures might be an underlying or root cause of conflict. Nick Seymour, former Senior Chief of the DPKO Military Planning Service has indicated that the assessment process is effectively blind to this issue, stating that prior to drafting a mandate “There will be a significant amount of dialogue between the Secretariat and the various Member States and members of the Security Council…But the problem at the moment is that anything to do with corruption is missing from that dialogue…[3]

The threat posed by criminalized power structures to spoil implementation of peace processes has been routinely overlooked for several reasons. Perhaps the most prominent is the conventional wisdom that once a peace settlement has been achieved the only remaining requirement is “post-conflict reconstruction.” This fatally flawed conception prevails in spite of the fact that the Arusha Accords in Rwanda led directly to the genocide there, the Lomé peace agreement in Sierra Leone produced the hostage-taking of 500 UN troops by the RUF, and that Iraq was initially termed “post-conflict reconstruction” in ignorance of the virulent drivers of conflict that persist there to this day. Another reason for the international community’s blinders is that there has been a persistent inclination to dismiss the challenge posed by criminalized power structures as just corruption or organized crime and, therefore, not a concern for the peace process. Compounding this, peace settlements rarely if ever come to grips with the role of the underground political economy in fueling conflict, in all likelihood because the parties to the conflict themselves derive enormous illicit benefits from it and thus have no incentive to alter the status quo.

 

The essence of the solution is to assess the threat from criminalized power structures properly and reflect that in the mission’s mandate prior to intervening. The following recommendations are designed to make this happen.

 

2.     Recommendations

 

·      Assessments should expose the role of illicit revenues in fueling the conflict

The essential discriminator for a criminalized power structure is exploitation of illicit revenue as the dominant means or motivation for pursuit of power. The critical issue is to determine what the principle sources of this funding are and whether the group is using them primarily as a means of addressing political aspirations or whether it is motivated principally by greed. The first places to look for this information should be reports by a UN Panel of Experts (if one exists) and international watchdog NGOs like Global Witness, Transparency International, and Global Financial Integrity.  The US and other states with relevant intelligence capabilities should hone their ability to contribute to assessments in conflict settings ripe for international intervention by making it a priority to gather intelligence about illicit revenue streams, informal power structures, and linkages with transnational organized crime. Sarah Chayes in Thieves of State identified some of the essential elements of information, including are “…the levers of power captured by the network, its favored revenue streams, its structure and manning, the degree of vertical integration, the internal and external enablers that  reinforce it and facilitate its operations, its vulnerabilities…”[4]

·      Identify the centers of power, their enablers and vulnerable nodes

It is essential to determine who wields formal and informal power, what the critical nodes in the structure are, and what their vulnerabilities to criminal prosecution are (and where). Extradition should be used, if possible, to render leading figures who are responsible for obstructing the rule of law and stabilization efforts susceptible to prosecution. Certainly a neighboring state that is exploiting the conflict to loot natural resources also qualifies as a component of a CPS.  

·      Determine whether core state institutions are part of the solution or the problem

It is crucial to assess the degree to which core state institutions (e.g., armed forces, intelligence service, legal system and police, customs, central bank, procurement) have been captured. One telltale marker is the dysfunction of the prevailing accountability regime and the duress under which investigative journalists, civil society organizations devoted to good governance, and human rights bodies must operate. The critical question is whether critical institutions are politicized and part of the problem or whether they are accountable to the law and part of the solution. If the former, the appropriate strategy is not to launch a massive capacity building program so that ownership can be rapidly turned over to locals who are complicit in criminal enterprises.

·      Assess what type or types of CPS have provoked the conflict

Power structures vary dramatically in their orientation toward the peace process and their propensity for violence, so it is also critical to assess whether they are likely to be irreconcilable, to oppose the peace process through violent means, or to support it nominally while actually delegitimizing it through rampant corruption. Although this is a process that will take time to refine through future application, some suggested indicators are as follows:

o   Irreconcilables are likely to be motivated by greed rather than grievance. Thus peace agreements that address contentious political issues but which deprive the CPS of access to its source of plunder are liable to produce irreconcilables (e.g., RUF in Sierra Leone and gangs in Haiti). They can only be dealt with through superior force.

 

o   Violent opposition to the peace process is likely when the peace agreement has left core issues unresolved. The strategy will require the capacity to impose costs for violently opposing the peace process, ideally through successful prosecution, while simultaneously developing more attractive peaceful means of contesting for wealth and power.

 

o   For CPS who support the peace process, the essence of the challenge is to recognize their reliance on illicit sources of revenue.

 

The mission’s mandates and strategies must be appropriately tailored to the type of CPS involved (See below).

·      DPKO should form a working group to develop an assessment framework for CPS

The critical need to improve the ability of UN assessments so that they identify the role of international crime and terrorism as a strategic threat to mission’s has been highlighted by DPKO Senior Police Advisor, Stefan Feller, who called for creation of “…a worldwide strategic threat assessment that would allow policymakers to better understand what needs to be addressed as drivers of conflict. Such an informed assessment would enrich the process of shaping mandates for peace operations.”[5] Many criminalized power structures certainly feature international crime and terrorism as modus operandi, especially when a neighboring state either funds a rebel movement through illicit transactions or colludes with it to plunder the conflict state’s resources; however, assessments should also bore in on domestic crime in the form of grand corruption by the political class as a possible precipitant of conflict. DPKO should work with interested Member States to develop an assessment framework to discern the presence and type of criminalized power structures, along with all other drivers of conflict. The working group should also identify the information requirements and prospective sources of information (Member States, reports by Panels of Experts, international watchdog NGOs, etc.).

B.    Mandates should provide adequate authority and capacity to deal with criminalized power structures

 

1.     Issue

The failure to provide the essential authorities and capabilities required to deal with criminalized power structures during the decisive “golden hour” at the outset of an intervention has condemned the missions examined in this volume to, at best, years of incompetence (e.g., Guatemala, Bosnia, DRC, Kosovo, and Afghanistan) and, at worst, a serious risk of collapse (e.g. Sierra Leone, Haiti, and Iraq[6]). The fundamental decision that must be made by the mandating body, according to Elizabeth Andersen, author of the “Mandates” section in the Toolkit chapter, “…is situating the mandate at the appropriate point on the spectrum between support and substitution (Italics added).”[7] The core of the problem is that the UN and EU do not conceive of this choice as a spectrum but have created a false dichotomy involving only two options: either completely replacing their local counterparts (i.e., executive authority or substitution) or providing advice and assistance to develop their proficiency (i.e., strengthening). Owing to the “all or nothing” conception of executive authority, there is likely to be intense resistance to this option when mandates are drafted. The DPKO Handbook for Judicial Affairs Officers, for example, makes it clear the UN prefers the strengthening option, asserting that “International actors, including judicial affairs officers, should work with, rather than substitute for, national counterparts.”[8] If, however, the essence of the threat to the rule of law, and stabilization generally, is not lack of ability but lack of political will causing lack of prosecutorial and judicial will, the result could easily be impunity for those in power. Under such circumstances t a strengthening strategy could actually result in making matters worse by strengthening a thoroughly unsavory clique while rewarding the justice sector for protecting them. When the pre-mission assessment indicates that CPS will likely play a spoiler role, according to Andersen, “Most mandates should probably fall somewhere in the middle of this spectrum, according the mission more intrusive, executive authorities in areas in which the CPS is particularly entrenched or likely to obstruct mission objectives.”

As the cases we have examined clearly document and as Andersen concludes, “Too often, mandates have been belatedly strengthened to meet CPS challenges that should have been appreciated at the mission design stage…”[9] As discussed above, any solution certainly requires recognition of the problem in pre-mission assessments so that  mandates can be tailored to address the CPS challenge. Also essential, however, to “right sizing” mandates is expanding the repertoire of options to provide a full spectrum along the continuum between full exercise of executive authority and merely strengthening the capacity of institutions of government. Hartmann and Klonowiecka-Milart, co-authors of the “International Judges and Prosecutors” section in the Toolkit chapter, posit that a national-international hybrid specialised court with expressly defined subject matter jurisdiction and mandate tailored to remove impunity should be considered.  The recommendations below provide a range of such options involving collaborative exercise of executive authority that is narrowly targeted on the spoiler threat from criminalized power structures.

2.     Recommendations

 

·      A mandate for “collaborative investigative, prosecutorial and adjudicatory authority” involving use of hybrid police units, prosecution offices and special courts exclusively for serious violations of international humanitarian law, gross violations of human rights and other serious crimes that threaten the peace process should be a preferred option[10]

 

When assessments indicate criminalized political networks actively exploit the legal system for illicit purposes or intimidate it into passivity, mandates should authorize an intermediate option between total substitution and passive strengthening. This would entail a hybrid international and national police unit, prosecution office and specialised courts. These hybrid structures would require their own independent powers to arrest, detain, investigate, prosecute and adjudicate serious violations of international humanitarian law, gross violations of human rights, and other serious crimes that threaten the peace process. The latter crimes would include attacks on civilians (in keeping with a protection of civilians mandate), theft of international assistance, grand corruption that drains the government not only of essential revenue for peacebuilding but also of public trust and legitimacy, intimidation of witnesses, espionage against the mission, and attempts to suborn or intimidate mission staff.  The hybrid institutions should also hold accountable international UN/EU staff for such serious crimes that the UN Secretary General or EU determines warrant lifting their immunity, as was done with personnel working for the UN Mission in Kosovo. This public accountability is critically important since the failure to uphold the rule of law on mission members would only reinforce the belief that those who wield power also enjoy impunity.[11]

 

The hybrid special court and prosecution office, comprised respectively of international judges and prosecutors and carefully vetted national judges and prosecutors, will require their own independent support structures (e.g., each with its registrar, chief judge/prosecutor, disciplinary rules/mechanism, international legal assistance unit, administrative support staff, translators/interpreters, and a secure building). This is essential to foil any attempts by national justice institutions that are beholden to the prevailing regime to interfere with the mandate.

 

Contract terms for international judges and prosecutors should ensure independence through internal high council evaluations and contract terms that do not allow decisions about retention or contract extension to be made by UN or EU political decision makers/leaders. International judges should initially comprise a majority on the judicial panels, and international prosecutors should be able to select any case to prosecute and, after consultations with national counterparts, should have final control for any prosecution decisions. The core function of the hybrid institutions must be to investigate and try cases, although capacity building through mentoring and demonstrating independent professionalism will be a collateral byproduct. Primacy should eventually transition to local judges and prosecutors once they have demonstrated their ability to stand up to the impunity of CPS and protect the rights of minorities. The mission should make it an immediate priority to protect them and their families (See the discussion of expanding the skill sets of Formed Police Units, below). Such courts are actually recommended in the Judicial Affairs Officer Handbook when there is a “…lack of capacity and/or independence and impartiality of the national justice system.”[12]

 

·      Mandates should provide the hybrid justice institutions with an enabling legal framework.

The legal framework should not romanticize national law, nor automatically adopt it, as the hybrid institutions need modern tools to accomplish their tasks. The legal framework must include the tools needed for successful prosecution of deeply entrenched CPS, including procedural provisions to offer “little fish” immunity, allow covert and technical measures of surveillance, witness and victim protection measures (and a funded programme for removal from the state), enable effective international legal assistance (MLAT) including asset discovery, forfeit and recovery, and discovery of parties’ witnesses in advance.  The framework also may require the retroactive application and  definition of international humanitarian law crimes as defined by the Rome Statute, which is allowed under international norms, as well as the promulgation of crimes that will target the hidden and protected CPS crimes, such as money laundering, corruption (including the UN Convention Against Corruption’s mandatory crimes and optional crime of illicit enrichment), organized crime (UN Convention Against Transnational Organized Crime), and Crimes of Obstruction of Justice and Witness Intimidation (see, e.g., USIP’s Model Penal Code).  Discovery of the CPS criminal network will also require a “Whistle-blower” law to provide incentives (a limited % of eventual asset recovery), and protection to such informants.

 

·      Mandates should empower the mission to sever illicit revenue flows

The mission should have a mandate to shut down the illicit sources of revenue responsible for fueling the conflict that were identified during the assessment process. The range of tools that should be considered is described below in “Sever the flow of illicit revenue to criminalized power structures.” The most salient example of the exercise of limited, collaborative executive authority is the Governance and Economic Management Assistance Program (GEMAP) which entailed use of international monitors to oversee the process of revenue collection and expenditure. This program was implemented in Liberia with a most salutary effect, as described in the GEMAP section of the Toolkit chapter. If it is not possible to include GEMAP as part of the mandate, the major bilateral and multilateral donors should insist on such authorities as a condition for assistance.

·      International peace makers such as the Department of Political Affairs should suggest options for collaborative investigative and adjudicatory authority when negotiating peace agreements

Owing to the inevitable resistance by mandating authorities to impose limitations on national sovereignty, peace negotiators should suggest inclusion of a hybrid special court as part of the terms of the peace agreement.  Since the parties to the conflict are “behind the veil of ignorance” and wary of whether the other party to the conflict will perpetuate it by other violent or criminal means, the existence of a special court would be in the interest of those who are negotiating in good faith.

·      Mandates for missions facing violence-prone CPS should include authorization for the use of force, protection of civilians, and  robust forces to execute the mission

If the assessment indicates the mission must deal with a criminalized power structure that is potentially violence-prone, it will need authorization for the use of force to protect civilians along with robust international military contingents and police forces, including Formed Police Units (See below), and intelligence gathering capabilities to enable criminal intelligence-led policing (See below). It is far better to come prepared to create prohibitive consequences for violent opposition to the peace process at the start of the mission and perhaps not need such capabilities than to lack them and spend years trying to add them to the mandate and deploy them.

C.   The strategy should be tailored to the type of criminalized power structures involved

 

1.     Issue

A key goal of this work is to advance Stephen Stedman’s original aim in his path breaking 1997 article on spoilers to develop “… a typological theory of spoiler management.”[13] Our case studies confirm Stedman’s assertion that there is “…a range of strategies to deal with spoilers, from ones that rely heavily on conciliation to ones that depend greatly on the use of coercion…the choice of an appropriate strategy requires the correct diagnosis of the type of spoiler.” The following patterns emerged from our ten case studies.

2.     Recommendations

 

·      Coercion is essential for success with both irreconcilables and CPS with negotiable interests who use violence

Irreconcilables, as the label suggests, must be defeated; however, this might entail elimination of just the faction that rejects peaceful accommodation (e.g., gang leaders in Haiti, the Foday Sankoh wing of the RUF in Sierra Leone). The purpose of the use of force with CPS with negotiable interests is different. It is to raise the costs of using violence to unacceptable levels (i.e. coercive diplomacy). Given that it may be difficult to discern whether interests are reconcilable or not (especially in the wake of a peace agreement), it is prudent to combine use of force with renewed overtures for a diplomatic solution. Thus coercive diplomacy is appropriate for both types of CPS, at least until it is manifest that negotiation is futile (as was the case with the gangs in Haiti). Owing to the necessity for overwhelming force to deal successfully with both irreconcilable and negotiable CPS, it would be prudent for missions to come armed with a robust mandate and capabilities at the start of the mission to allow a full range of strategic options. It is far safer and less expensive to downsize than to recover from a feeble posture that has squandered the “golden hour” (See H below).

·      Conflict transformation is an appropriate way to frame the response to criminalized power structures

In all cases, the successful strategies for CPS align with the three mutually reinforcing lines of effort involved of conflict transformation.[14] This consists of:

1.     Diminish the drivers of violent conflict

Dissuasive consequences must be established for use of violence, opposition to the peace process, and use of illicit revenue to capture power. All criminalized power structures are characterized by the latter, therefore, all missions must have the ability to track these revenue streams and shut them down. Especially in a cash-based economy with billions of dollars of urgently needed international assistance flooding in after the intervention, the potential exists for “greedy” power structures to exploit the situation. The only prudent strategy is to deploy the expertise to monitor the money flow, investigate theft of international assistance, and prosecute those responsible (See B above and D below).

2.     Institutionalize more attractive peaceful alternatives for pursuit of wealth and power

Legitimate institutions to mediate the competition for wealth and power need to be nurtured and sustained by the international community. The most challenging aspect of the strategy is ending impunity when criminalized power structures have insinuated themselves into the apparatus of government. To do this, a more sophisticated approach than merely building local capacity and turning ownership over to the locals is required. To stabilize these situations, it is vital for the international community to take the initiative to dislodge these “enemies of peace” by creating vulnerability to criminal prosecution and incarceration (See “collaborative executive authority” above).

 

3.     Develop safeguards on the performance of these institutions and processes to prevent state capture and future abuse of power

Safeguards provide accountability and serve as a barrier against capture of the state by criminalized elites.  Safeguards must be developed both in the structures of government and civil society to provide an effective check on abuse of state power (See E. below). This requires long-term engagement by the international community while civil society mechanisms are maturing.[15]

D.   Sever the flow of illicit revenue to criminalized power structures

 

1.     Issue

The center of gravity for any CPS is its ability to generate and exploit ill-gotten gains. Yet the international community routinely pours billions of dollars of assistance into societies struggling to pull themselves out of conflict while failing to stanch the diversion of the country’s own financial and natural resources into the bank accounts of those responsible for the conflict. At a minimum, this enables kleptocratic governance, and, at worst, it paves the path to renewed conflict. In either case, this is a failure to adhere to one of the most fundamental principles for international interveners: do no harm. Nor are effective measures installed to bring internationals and locals to justice for absconding with assistance funds. Some of the measures recommended below will be decried as an affront to national sovereignty by those who would find their ability to pilfer the national treasury or patrimony restricted; however, when this has been one of the root causes of conflict, such self-serving claims should be recognized as specious and scurrilous. Sovereignty cuts both ways, moreover, and there is no obligation for bilateral and multilateral donors to allow their scarce resources to be exploited by criminalized power structures to enrich and perpetuate themselves in power.

 

A variety of financial tools can and should be used to restrict the ability to pillage the nation’s resources and/or collude with transnational criminal enterprises. These include:

 

·      Supply chain controls to curb looting of natural resources

·      Targeted financial sanctions (i.e., smart sanctions) and Panels of Experts

·      Seizure of criminally derived assets

·      Section 311 of the USA PATRIOT Act to curtail money laundering

·      The Governance and Economic Management Assistance Program (GEMAP)

·      A hybrid Special Court with jurisdiction over cases of theft on international assistance (See above)

The efficacy of these instruments can be enhanced through the measures described below.

2.     Recommendations

 

·      Targeted financial sanctions, asset seizure, and the USA PATRIOT Act should be tailored to stanching the flow of illicit revenues that perpetuates conflict

Targeted financial sanctions and asset seizure have been unleashed with decided impact against terrorists and transnational organized crime. They need to be harnessed for the benefit of peace implementation against the nemesis of criminalized power structures with which these other international security threats are often intertwined. The US can also lend substantial weight by invoking Section 311 of the USA PATRIOT Act against money laundering by CPS who obstruct implementation of peace processes.

 

·      Panels of Experts should be used to identify networks responsible for  illicit revenue streams and their enablers

Before mandates are drafted, the data collected by Panels of Experts should be fully exploited to identify the illegal sources of revenue that have driven the conflict and the structures of the networks involved, including the “enablers” who play critical roles in funneling hot money to safe havens.[16]

 

·      Missions should name and shame parties profiting from perpetuating conflict

Missions should wage a strategic communications campaign to name and shame the individuals, corporations, and countries that are continuing to profit by trading in conflict diamonds, minerals, or other lootable commodities. This would raise the costs for actors who are enabling the circumvention of supply chain controls instead of placing corporations that comply with them at a competitive disadvantage.

 

·      States should be included in supply chain control sanctions regimes

 “Conflict-free” certification regimes should be reformed to include states as well as rebel groups as candidates for sanctions.

·      Dodd-Frank requirements for transparency in sourcing of conflict minerals should be broadly adopted

The Dodd-Frank requirements enacted by the US that mandate corporate transparency in sourcing of conflict minerals should be adopted by other countries, especially members of the European Union.

·      Supply chain control regimes should be created for all types of looted national resources

Other materials besides diamonds and conflict minerals are vulnerable to looting such as timber, oil, ivory, antiquities, and agricultural items. If any of these are a prominent source of illicit funding for parties involved in future conflicts, a supply chain control regime should be enacted.

·      GEMAP should be used whenever CPS have been a driver of conflict

GEMAP should be included in mission mandates or bilateral and multilateral donors should negotiate a GEMAP program, as was done in Liberia. This would allow international monitors to oversee the process of revenue collection, including customs, and to sign off on expenditures. As the authors of the GEMAP section in the Toolkit chapter document, “GEMAP reduced the ability of corrupt actors to feed on government finances and to undermine the country’s principal source of financing.”[17] GEMAP was also effective at introducing proper economic management practices, transparency and accountability.

·      Reform of the Customs Service should be a top priority

In the aftermath of violent conflict, internal mechanisms of taxation are likely to be in disarray with a long lead time before they can begin to function. The only immediate source of revenue to fund vital government services such as the security sector, legal system, education, and health care is taxation of imports. Thus, reconstitution of the Customs Service should be a priority, but it must be done in a manner that protects the revenue stream from criminalized power structures. The most effective way to accomplish this is a program like GEMAP.

 

·      When consent is a constraint, focus on enablers and vulnerable nodes in illicit networks

Owing to the need to maintain consent of the parties to the peace process, a top-down approach to enforcement actions may be constrained if the political strongman at the helm of a CPS is also a primary interlocutor with the international community; however, criminalized networks require a structure of internal collaborators and external partners (e.g. financial institutions, legitimate corporations or shell companies, state and non-state actors) to enable their transnational crimes and provide the ability to shelter their illicit profits. It is essential for the success of financial tools, therefore, that the strategic enablers and vulnerable nodes of criminalized power structures be identified and that they become primary targets.

E.    Make accountability a priority equal to capacity building[18]

 

1.     Issue

The international community has typically given primacy to developing the capacity of the security forces (military and police) as an expedient exit strategy while considering accountability to be a lesser priority that could be deferred until later. If the assessment indicates that impunity and politicization of the security sector and legal system are part of the problem, however, accountability must be afforded equal priority with capacity building from the start of the mission.[19] Safeguards are essential to provide an assurance that the institutional capacity being developed by the international community functions in a manner that is consistent with the rule of law and is not used to empower the same criminalized elements that were responsible for the conflict. The gravest potential threat to an effective accountability regime is likely to be the various intelligence activities employed by the parties to the conflict. They are often thoroughly politicized and linked to organized crime and gross human rights abuses.

 

The following steps should be taken to afford accountability the priority it requires.

2.     Recommendations

·      International actors will need to play a prominent role in establishing accountability

A hybrid special court, described above, is essential for breaking the hammerlock of impunity. To open and protect the space for accountability, international mentors and monitors should immediately be installed in state-based layers of accountability (i.e., internal to government agencies and within each of the branches--executive, legislative, and judicial).

 

·      Civil society is the best place to start developing accountability

In cases where the state has been captured by a criminalized political class and the internal, state-based instruments of accountability are in their grip, the best place to invest in accountability mechanisms will be external mechanisms of accountability in civil society and truly independent agencies. To advance the process of dismantling the old order where impunity prevails and establishing a new one where rule-of-law triumphs over individual interest, civil society needs to be mobilized and strengthened so it can provide an effective means of challenging abuse of power. International Watchdog NGOs like Global Witness, Transparency International, and Global Financial Integrity should be funded at the outset of the mission to train and develop counterpart organizations. Investments should also be made in developing community-based monitoring of reconstruction projects and promoting synergy among the media, think tanks, and NGOs devoted to accountability, as described below:

 

o   Community-based monitoring

Bilateral and multilateral donors should adopt community-based monitoring in post-intervention environments as a means of establishing transparency during project implementation and monitoring the actual impact of the investments made (See the step-by-step discussion in the Toolkit chapter). Community-based monitoring is a nascent state-building tool which aims to embed a citizenship consciousness both in citizens and state officials. In the long-term, it is intended to change social norms that currently tolerate criminal patronage networks or are intimidated by them. Perhaps the most egregious violation of the “do no harm” dictum would be to fail to put procedures in place to expose the diversion of international assistance into the coffers of criminalized power structures, thereby strengthening the very elements responsible for spoiling the peace process (See Chapter X on Afghanistan’s criminal patronage networks).

o   The “Civil Society Triangle:” grassroots NGOs, investigative journalism, and Think Tanks

Nurturing grassroots NGOs capable of providing transparency for aid and reconstruction efforts and advocating for accountability for gross abuse is vitally important but insufficient. The international community should invest in creating synergy among NGOs devoted to transparency and accountability, Think Tanks, and investigative journalists, as proposed in the Toolkit chapter discussion of the Civil Society Triangle.

·      Levels of international assistance should be made contingent on meeting annual benchmarks for accountability

Metrics for determining whether the multiple layers of accountability are functioning, both external (civil society and independent bodies) and internal to the government (i.e., within each government agency and by each branch of government), should be established at the beginning of the mission. The most crucial measure of performance for the legal system is whether it can confront impunity. Levels of international assistance should be made contingent on acceptable progress.

 

·      Top priority should be given to placing international mentors and monitors in state-based layers of accountability for the intelligence apparatus

It is exceedingly difficult to establish accountability over state intelligence agencies because they are shrouded in a veil of secrecy. Compounding this, disarmament, demobilization and reintegration processes never address what to do with intelligence operatives. The legislature is perhaps the most effective means of holding intelligence agencies accountable. Judges should also be required to authorize intelligence operations that might infringe upon individual rights, and an ombudsman or human rights commission should be created with whom citizens can file complaints. Finally, a National Security Council or equivalent should be empowered to exercise executive control.[20] International monitors and mentors should be inserted into each of these layers of accountability as a top priority for the mission.

        

·      Efforts to nurture accountability mechanisms will be vitiated unless international staff are also held accountable

As indicated above in the discussion of mandates, a hybrid special court should be created for crimes against the mission. The international judges and prosecutors on this special court should be used to try cases against members of the mission if their immunity is lifted by the head of the mandating organization.

F.    Decision making and operational planning procedures need to be established for forging unity of effort[21]

 

1.     Issue

It is highly unlikely that the Force Commander will have any operational experience in the use of non-lethal force, and the Police Commissioner is not apt to have experience mounting operations with military forces. The Head of Mission will almost certainly be unfamiliar with the role of robust police units. Effective decision making and operational planning procedures are needed to integrate military, police, and civilian activities.

 

2.     Recommendations

 

·      Establish a decision making process to guide criminal intelligence-led operations

Missions must have a decision making process to determine when intelligence-based operations should be undertaken. Two basic functions need to be accomplished:[22]

 

At the “strategic” level of the mission, an infrastructure is needed to obtain agreement about strategic goals, specifically whether to undertake intelligence-led operations to disrupt, dislocate, or dismantle obstructionist power structures and what the priority targets should be. Another critical function is to determine the proper mix of force, diplomacy, legal and other instruments. This decision making entity should include the civilian head of mission, the military force commander, the police commissioner, the head(s) of intelligence, and the senior legal advisor.

At the operational level, resources for intelligence collection, investigation, prosecution, and planning should be allocated according to the strategic priorities. Recommendations for action should be developed at this level for presentation to the strategic-level body to determine when to act.

·      Use an integrated operational planning process and clear command and control arrangements

Coordination between military and police components should always take place on major operations so that the need for police support (e.g., crowd and riot control or evidence collection) can be anticipated and mobilized. Operations may need to be followed by civilian quick-impact projects, which will need to be planned well in advance. Integrated planning is an alien concept, however, for most military and police forces and development agencies. The mission leadership should insist that planning for operations be consolidated and that unresolved differences be settled at the head of mission level. Not only does the effectiveness of operations hinge on shared planning, the safety of the forces involved depends on it.

Most military establishments are taught to organize their planning in a standardized manner (i.e., Situation, Mission, Execution, Administration and Logistics, and Command and Control). Police forces are not. Thus each mission is left to develop procedures for integrating military and police planning ad hoc. The issue of command and control needs to be clearly articulated and standardized. Either the police or the military should be designated as the lead for an operation, contingent on whether sustained use of military weapons is anticipated. In particular, it is imperative to have a clear understanding of the conditions that would cause primacy to be transferred from the police to the military in the midst of an operation. This allows military and police commanders to work operationally together while commanding their distinctive capabilities according to their own specific roles and mandates.[23] 

·      Conduct contingency planning exercise at least annually

Each mission challenged by violent obstructionists should conduct a contingency planning exercise as soon as the mission’s implementation strategy has been completed. The exercise should address the “worst case” threat that the mission is likely to confront and how it would respond to intelligence that provided advanced warning of such an eventuality. Owing to the constant rotation of senior leadership during a peace mission, this process should be repeated at least on an annual basis.

 

G.  Integrate Criminal Intelligence-Led Policing into the mission response[24]

Issue

Reacting to politically motivated violence and obstructionism after the fact is tantamount to a never-ending game of whack-a-mole.  To establish security and reduce the impact of “spoilers”, they must be ferreted out, their capacity for violence reduced and their criminal sources of revenue cut off through the collection and use of actionable intelligence, the amassing of evidence, and ultimately prosecution. The most effective way to confront violent threats to a peace process is to collect the necessary information to seize the initiative, mount intelligence-led investigations and actions, and to achieve one of two effects:

 

-       Prevent or disrupt violent activity in order to protect civilians and vulnerable groups, the mission and the peace process.

-       Dislocate and disrupt obstructionist networks by well-informed strategies that expose criminal activity and linkages, crack the foundations of corruption and impunity, and build public confidence and national support by demonstrating mission commitment and capability. The way to achieve this is through lawful means and procedures: gathering evidence, executing arrests, and prosecuting key actors and increasing the likelihood of apprehension.

Although the UN has successfully used Joint Mission Analysis Centers (JMACs), they are focused on strategic intelligence.  Intelligence has all too often been an afterthought at best or treated as antithetical to peacekeeping principles at worst. With the notable exception of the success of tactical intelligence against gangs in Haiti, missions have avoided collecting tactical intelligence as a matter of course. Where intelligence is managed as an ad hoc effort, missions are unlikely to gain an upper hand quickly against entrenched illicit networks, rendering missions incapable of shielding vulnerable civilians, protecting their own resources, or creating the permissive security environment necessary for aid, assistance, and sustainable development.

Recommendations

·      The UN should embrace the concept of criminal intelligence-led policing as a legal, accountable, and transparent operational methodology

 JMAC Policy and Guidelines should include, on a mission by mission basis, access to the suite of legal, accountable and transparent criminal intelligence collection and resource options, including open sources data,[25] human sources management,[26]  and technical data collection.[27] UN guidelines and policy should be revised to encourage and empower missions, through the Joint Mission Analysis Centers, to develop criminal information packages against illicit organizations and their leaders whose activities threaten security and the mission mandate and, where appropriate, that such information should be converted into evidence for the purpose of prosecution by the international community or the host government.

·       DPKO should develop a cadre of intelligence professionals

UN Missions should be deployed with the foundations of a properly resourced JMAC, including, expert resources as described in the section “Criminal Intelligence-led Policing” in the Toolkit chapter. This could be done in conjunction with the Standing Police Capacity, making intelligence professionals available to serve in mission planning and in JMAC leadership roles, supported by specialists in open source research, human source management, surveillance (technical and physical), and complex prosecutions, including criminal conspiracy, and financial investigations.[28]

·       DPKO should develop a system of internal oversight, in parallel with new policy and procedure, authorizing criminal intelligence collection supporting mission mandates, to address and overcome historic and systemic objections to the collection and use of “intelligence” in mission.

The foundation for JMAC success is to pool the collective effort and multiple sources of information and to subject the data to the intelligence process:  systemic data collection, collation, processing, analysis and dissemination (as was done in Haiti, see the Haiti case study).  Success in this regard demands a professional approach, and JMAC personnel should be selected on the basis of their professional competence and experience.

·       DPKO could maintain a JMAC start-up package at the UN Logistics Base, in Brindisi, Italy. 

UN Missions should be rapidly deployed with a properly resourced JMAC. To enable this, a start-up kit of equipment necessary to establish a JMAC and an associated criminal investigative capability (as described in the section on “Criminal Intelligence-led Policing” in the Toolkit chapter) should be established and maintained at the UN Logistics Base in Brindisi, Italy.

 

·       Member states, particularly those that embrace and employ the modern concepts of intelligence-led policing, should support the JMACs with personnel, and equipment.

Member States with relevant intelligence resources, especially the mission’s leading troop and police contributing countries, should second intelligence personnel to the JMAC and continuously support the mission by making it a priority to gather and provide intelligence about informal power structures, their illicit revenue streams, and their linkages with transnational organized crime. This will require completion of complicated agreements among prospective contributing Member States to deal with a host of sensitivities concerning sharing and use of criminal intelligence, including use for arrest and prosecution (e.g., different Member States may regard different parties to the conflict as having broken the law, a judgment that may be skewed by their national interests in the conflict). These issues should be confronted and resolved ahead of time, so that when a mandate for a peace mission is passed, access to reliable criminal intelligence can quickly be made available. For the US government, Customs, Treasury, the Federal Bureau of Investigations, the Central Intelligence Agency, the Defense Intelligence Agency, and the State Department Bureau of Intelligence and Research should all be encouraged to contribute.

 

H.   Create a surge capacity for and add specialized capabilities to Formed Police Units

1.     Issue

Two critical public security gaps recurrently confound peace missions: a deployment gap and an enforcement gap.[29] The first is the time lag between deployment of military contingents and police forces. If missions have only military firepower to call upon during the “golden hour” at the beginning of the mission, response options will be reduced to observing the mayhem or using lethal force against the very civilians that the mission is mandated to protect. To fill this gap, rapidly deployable “stability police units,” possessing non-lethal crowd and riot control options are required.[30] Since 2000, UN peacekeeping operations have deployed an increasing number of Formed Police Units (FPUs) that could theoretically be used to fill this gap, but no surge capability has ever been developed. Currently, 70 FPUs are authorized for UN missions, but only 62 are deployed, exacerbating the deployment gap for new missions. The enforcement gap relates to the law enforcement challenge of arresting key actors in criminalized power structures who are the source of disorder. FPUs are designed exclusively for crowd and riot control, but apprehending dangerous criminals requires other specialized police skills including surveillance and Special Weapon and Tactics Teams (SWAT) capable of high-risk arrest. Preventing the assassination of courageous local leaders and officials who have taken the risk for peace requires a close protection capability.

 

Unless both of these gaps are addressed, the capacity to capitalize on criminal intelligence and seize the initiative against violent obstructionists embedded in informal structures of power will be negligible. Recommendations for closing each of these gaps are developed below.

 

2.     Recommendations

 

·      The US should provide relevant Excess Defense Articles to the UN to serve as a catalyst for development of a surge capability for FPUs to close the deployment gap

To develop a surge capability for UN FPUs, the US should provide surplus US Army equipment known as Excess Defense Articles (EDA) as an incentive for countries to offer stand-by FPUs to the UN. The UN’s equipment requirements for FPUs include Armored Personnel Carriers (APCs), jeeps, and 2.5-5 ton cargo/utility trucks. APCs are not typically found in police forces, and the other items are not abundant. Thus meeting these equipment requirements is a major barrier for most nations. On the other hand, APCs, jeeps (or High Mobility Multipurpose Wheeled Vehicles or Hummers), and 5-ton utility trucks are surplus items in the US Army inventory after the drawdowns in Iraq and Afghanistan. Filling the deployment gap in an enduring manner would require equipment for more than one mission, since the rate of creation of new missions tends to exceed the rate of closure of existing missions. As a notional figure, commitments from ten countries might be obtained to provide trained and qualified personnel on stand-by for the next mission. To establish a surge capacity for five sequential new missions requiring ten FPUs each (i.e., a cumulative total of 50 companies of FPUs) would entail divesting from the US Army surplus inventory a total of 150 M-113 APCs, 700 Hummers for use as ambulances and 4x4 vehicles, and 500 trucks (5 ton utility and 10K liter fuel trucks).[31] The equipment should be donated to the UN and maintained at the UN Logistic Base in Brindisi. This would serve as a powerful incentive for Member States to mobilize the personnel required to provide future FPUs given that the UN reimbursement for each unit is over $4 million per year.

Interested UN Member States would be required to send their prospective FPU leadership cadre to the Center of Excellence for Stability Police Units (CoESPU) in Vicenza, Italy for training. After they pass the UN’s proficiency test for FPUs, equipment at Brindisi should be set aside for that country, pending a new UN Mandate. Cadres should remain on standby for a year, and then a new cadre should be trained.

·      NATO’s concept for Multinational Specialized Units should be adopted allowing for specialized capabilities to be incorporated into FPUs to address the enforcement gap

To address the enforcement gap, NATO’s concept for its Multinational Specialized Units should be adopted allowing for the incorporation of units with specialized capabilities for high-risk arrest, surveillance, close protection, etc. into FPUs. Civil order maintenance and high-risk arrest are essential capabilities for criminal intelligence-led operations since crowd and riot control units can secure the perimeter of the target area for a SWAT team to carry out an arrest. There is precedent for this. In Kosovo a high-risk arrest unit, Team 6, was assembled, and in Haiti a 40-person Jordanian SWAT team was included within one of the mission’s FPUs. As their use in Haiti demonstrates, executive authority is not required. If the preceding recommendation for creating a surge capability is implemented, the UN would be able to deploy FPUs alongside military units during the first weeks of the mission. Since a gap of many months would still remain for deployment of individual UN Police, the UN should also work to develop a rapid deployment capability for criminal investigators, criminal analysts, and forensics experts who can be deployed together with FPUs until a UN Police Headquarters staff can be assembled and begin functioning.

 

Standards, doctrine, guidelines, and policy will need to be developed along with a list Member States with units that meet the standards and that are prepared to deploy them on short notice. The European Gendarmerie Force has the flexibility to support the UN, European Union, and NATO. They draw primarily upon Gendarme-type forces in Europe that have a high degree of professionalism in each of the specialized skills mentioned. Expanding on the range of potential contributors would be essential to provide desirable flexibility in adapting to the political constraints of different missions.

 

 


 

APPENDIX I: CASE STUDY SUMMARIES

I.               Irreconcilable Adversaries: Bosnia, Haiti, Sierra Leone, and Guatemala

Ironically, international interventions have achieved their highest degree of success against the most implacable manifestation of criminalized power structures: those that oppose the peace process through violence and whose interests are irreconcilable. Sierra Leone is the only one of our cases that is judged to have completely escaped from the influence of criminalized power structures, and Haiti, Liberia, and Guatemala have at least been partially successful. The interventions in Haiti and Sierra Leone nearly collapsed, however, owing to the failure to recognize the existential threat that criminalized power structures constituted for those missions.

The most challenging aspect of creating decisive consequences is not wielding coercive military force. The international community has demonstrated that once it recognizes the necessity to confront and, if necessary, defeat forces responsible for instigating violence, it can do so successfully (e.g. Sierra Leone, Kosovo, Haiti, DRC).

A.    Bosnia

A.    Bosnia: Third Entity Movement

The Bosnia case is distinguished by the unequivocal success of the strategy that was eventually implemented to prevent the Third Entity Movement from scuttling the Dayton peace process. On the other hand, it is entirely typical of the cases treated in this volume in that the grave threat posed by this criminalized power structure (CPS) was unforeseen and neglected for three years until 1999 when it nearly brought the mission to the brink of renewed conflict. Indeed, one of the most compelling lessons to be captured from this case is that the Bosnia conflict, which remains frozen after 20 years of international involvement, would surely have followed a far more successful overall trajectory if the right questions had been asked before intervening and the necessary authorities and capabilities provided at the beginning of the mission rather than incrementally over many years.

Case study authors Oscar Vera and Karmen Fields make clear that a simplistic diagnosis of the cause of the conflict obscured a profound and fateful reality:

In the case of Bosnia, the conflict was interpreted as exclusively ethnic in nature. Scant attention was given to the way elites in each of the ethnic communities had manipulated ethnic differences to propel themselves into power. Nor were their affiliations with criminal and/or terrorist networks a cause for concern in planning the mission. The IC [International Community] was also blind to the ways that the different ethno-nationalist networks collaborated with each other to maintain themselves in power and profit from the conflict. [Brackets added][32]

 

Owing to this ignorance about the threat from Bosnia’s three soon-to-be-discovered “parallel power structures,” there were no provisions in the Dayton Peace Accords to deal with their covert and sometimes violent obstructionism. Reform of the police, which constituted one of the mainstays of each of Bosnia’s criminalized power structures, was only added as an afterthought at Dayton. International police were unarmed and empowered merely to mentor, monitor and train. The other components of the legal system were ignored entirely. Control over prosecution and adjudication was reserved for the two entities, the Republika Srpska (RS) and the Bosniak-Croat Federation, by the Dayton-imposed Constitution. This meant that Bosnia’s obstructionist power structures were effectively left “to judge themselves.”[33] Although the military contingent, the Implementation Force (IFOR), enjoyed a robust mandate, it was focused exclusively on a narrowly defined conventional threat from the formal military forces of the protagonists. When violent resistance to Dayton implementation mounted, often in the form of “rent-a-mobs,” IFOR’s response was that this was not their concern, branding appeals for their involvement as “mission creep.” In fact, they also lacked an appropriate “non-lethal force” option to deal with this threat, but the more debilitating limitation was IFOR’s inability to recognize that Bosnia’s criminalized parallel power structures were the center of gravity for accomplishing their mission and stabilizing Bosnia so that the international presence could be withdrawn without provoking a renewed conflict. Neither the civilian nor the military components of the mission had any role in addressing the intelligence activities of all three parties to the conflict that constituted a treacherous threat to the mission.

 

            The question that should have informed the mandate and the mission’s implementation strategy prior to intervening was this: “Is one of the drivers of conflict in Bosnia that power in each of its ethnic communities is based on informal, illicit political-economic relationships?” According to Vera and Fields, the essence of power in each of Bosnia’s ethnically divided polities was derived from a formula that dated back to the Tito era:

·      The structures of power were both formal and informal.

·      Revenue to sustain power was procured through both legal and illegal transactions.

·      Power was maintained by elimination of rivals, often by contracting criminal operatives to perform the hit, and impunity was ensured by cooptation or intimidation of members of the legal system.

 

While each of Bosnia’s parallel structures of power shared these attributes, they varied in their orientation toward the Dayton Peace Agreement in terms of their methods of challenging its numerous gray areas and their willingness to adjust their political aspirations to the inviolable requirements of the peace process. The Third Entity Movement contravened one of these “red lines” since it aspired to dissolve the Bosniak-Croat Federation and create an entity co-equal with the Serbs and Bosniaks. This would have been interpreted as a potentially irreversible step toward unification with Croatia which would have rendered the survival of the Bosniak rump state untenable. The result would almost certainly have been a return to conflict. Unless the Third Entity Movement could be persuaded to forego this intolerable political aspiration, its interests were irreconcilable with the Dayton peace process, and the only suitable strategy was to prevent it from achieving this goal.

 

            Croatian President Franjo Tudjman was the most prominent formal component of the Third Entity Movement. His secret machinations with Serb President Slobodan Milosevic in the early 1990s to divide Bosnia between Serbia and Croatia are well known. Tudjman continued to pursue this ambition assiduously until 1999, the year he died, according to secret tapes published in 2000.[34] The clandestine elements of this structure included a nexus between the Croatian Intelligence Service and its counterpart in Herzeg-Bosna, the Bosnian Croat National Security Service. There was also an undercover, stay-behind unit of the Croatian Army, the 66th Engineer Brigade that was converted into the Monitor M Company to avoid complying with the Dayton requirement that all Bosnian Croat military units be placed under Federation command. This company was under the leadership of “former” Croatian Army General Ante Jelavic. Other informal elements were Mladen Naletilic’s Convict Battalion that had perpetrated notorious acts of ethnic cleansing of Bosnian Serbs and Bosniaks during the conflict and Jozo Peric whose Renner Transportation Company was a cover for arms trafficking, auto theft, and other transnational crime and the source of violent confrontations with Moslems who sought to return to their homes in the Stolac area.

One of the primary sources of illicit revenue for the Third Entity Movement stemmed from Tudjman’s diversion of the proceeds from the sale of Croatian state assets into the Hercegovacka Bank in Mostar that had been established by Ante Jelavic and the Monitor M Company. Investigations conducted after Tudjman’s death and the election of reformer Stipe Mesic as president of Croatia revealed that $180 million a year was channeled into the Hercegovacka Bank from 1998-2000. Jelavic used these secret funds to capture the Bosnian Croat vote as a candidate of the HDZ-BH party in the September 1998 Bosnian general elections and become the Bosnian Croat member of the state-level tri-presidency. Smuggling was another massive source of revenue to include drugs, people, cigarettes, cars (especially from Germany) and counterfeit goods. The Renner Transport Company was central to this lucrative activity. Other illicit sources of revenue revealed by actions taken against the Third Entity Movement in 1999 by the renamed Stabilization Force (SFOR) included credit card fraud and the sale of pornography. After the Hercegovacka Bank was taken over in 2001, the Deputy High Representative described the owners of the bank as “an organized crime family” who initially intended “to establish control of the economy, of the Croat portion of economy, of the Federation” but then used the bank to engage in “extortion, loan sharking, false companies, the manipulation of Oversight Boards and the rapid transfer of money we call ‘kiting,’ they paid off government officials, police and the military, and they all got their personal cut.”[35]

 

The final carry over from the Tito-era criminalized power structure, in addition to their informal parallel structures and their reliance on illicit sources of revenue to secure power was assassination of political rivals and the perversion of the legal system to secure impunity. A classic illustration of this was the 1999 assassination of the Federation’s Bosnian Croat Deputy Justice Minister, Jozo Leutar, who had been “trying to wage a genuine battle against drug smuggling in the Croat-populated Herzegovina.”[36] In 2001, the Sarajevo prosecutor brought charges against six people for conspiring to assassinate Leutar, three of whom were suspected of having been involved in prior assassinations. The Muslim judge, Miso Salem, acquitted all six defendants, but Vera and Fields raise serious doubt about the probity of the verdict, asserting “The mysterious circumstances surrounding the acquittal cannot be confirmed, but international observers believe that the judge was either bought off or intimidated. The overall context of Leutar’s assassination suggests that the six alleged assassins acted under political orders or political approval coming from the highest level of the HDZ-BH.”[37] Whether the assassination was ordered or approved by HDZ-BH is unknown, however, actions immediately following the assassination clearly demonstrate that HDZ-BH was ready to politicize the murder to their advantage by calling for a one week moratorium of common institutions within the Federation. Furthermore, the assassination occurred only a few weeks after the Bosnian Croat War Veterans' organizations, with close links to the HDZ, launched a campaign directed against the international community and promoting the concept of a Bosnian Croat "Third Entity."[38] 

 

Among the more debilitating flaws in the initial strategy was an end-date-driven requirement to conduct elections in a year, without any consideration given to whether this was conducive to an end state that would permit the international community to decamp. Since the international presence continued to be required, 20 years later, this clearly was a gravely flawed notion; however, the more important point is that the unseemly haste to turn ownership over to local authorities profoundly exacerbated the ability of Bosnia’s three criminalized power structures to obstruct reform efforts, because they now wore a façade of democratic legitimacy. Another core component of the strategy, as described by Vera and Fields, was “Initially, the strategy was orientated towards relying on institutions and leaders in the Federation and the RS to arrest war criminals and investigate and prosecute corruption, organized crime, and domestic terrorism… This strategy failed because the locals who had ownership were themselves the beneficiaries of impunity and a legal system accustomed to serving their parochial interests.”[39] It took two full years of ineptitude and paralysis before the Peace Implementation Council (PIC), an international body created to oversee implementation of the Dayton Peace Accords, sought to correct the impotence of the civilian head of the mission, the High Representative. At a meeting in Bonn in December 1997 the PIC granted the High Representative authority to cashier government officials who obstructed implementation of Dayton along with the power to decree reforms that local politicians refused to enact.

Just as the civilian side of the Bosnia mission was acquiring a formidable arsenal to begin confronting obstructionism by Bosnia’s criminalized spoilers, SFOR was having an epiphany about the root cause of the conflict residing in Bosnia’s political-criminal power structures. This caused SFOR to shed the contemptuous attitude IFOR had maintained about anything that smacked of policing. Indeed, the deployment of a Multinational Specialized Unit (MSU) of “gendarme-like” forces with both military and police training and expertise in use of non-lethal force for crowd and riot control took place in August 1998. In addition, SFOR, under the direction of the Supreme Allied Commander of Europe (SACEUR), General Wesley Clark, began robustly to fulfill its supporting tasks under Annex 1A of the Dayton Peace Accords. These supporting tasks included: “to help create secure conditions for the conduct by others of other tasks associated with the peace settlement” and “to observe and prevent interference with the movement of civilian populations, refugees, and displaced persons, and to respond appropriately to deliberate violence to life and person.”[40] These two provisions allowed for SFOR to provide direct military support to the civilian component agencies, namely OHR and UNMBiH in the execution of their respective missions and to take direct action where violence was present. This enabled SFOR to provide robust policing support for subsequent actions against the Third Entity Movement.

To lay the foundation for action against the Third Entity Movement required thorough “preparation of the legal battlefield.” This included OHR, through its Bonn powers, imposing the Witness Protection Law; amending the Federation Supreme Court Law to make it the court of first instance for cases involving terrorism, international terrorism, drug trafficking, inter-Cantonal crimes, and organized crime;[41] and creating the Federation Prosecutor’s Office that would try these particular cases. The personnel working in these institutions were to be vetted by the international community to assure a robust and honest judicial system. In the interim period, the High Representative would transfer high-profile cases from the Bosnia Croat controlled Cantonal Courts to the Sarajevo Cantonal Court to assure prosecutorial integrity. Finally, a special unit of the Federation police had to be vetted and trained in order to successfully apprehend suspects.

 

Once the legal battlefield was sufficiently prepared, the strategy required to defeat the Third Entity movement had to be comprehensive and unified. That meant that both the military and the civilian components of the international community had to coordinate every action among themselves and trusted members of the local community. Paramount to this coordination was intelligence-led operations. The first operation was targeted at Jozo Peric and his network of operatives from the Renner Transport Company who were responsible for war crimes committed against Muslims during the war and attacks against the international community.  As the Federation Police were attempting to launch their first operation into Bosnian Croat controlled territory with the full support of UN International Police Task Force and SFOR, the operation was leaked and the suspects got away. However, the operation put Peric and his cronies into hiding and refugees for the first time were able to return to Stolac without any violence. In addition, the operation firmly exposed the linkages between organized crime, the Cantonal Police, and the Bosnian-Croat intelligence service, which until that point was assumed but not verified. This led SFOR to launch Operation WESTAR in October 1999 against the Bosnian Croat National Security Service (SNS).Operation WESTAR was an unmitigated success, being executed without serious incident and resulting in the confiscation of 42 computers laden with information about illicit money-making schemes and espionage against virtually the entire international community (i.e. the Office of the High Representative or OHR, SFOR, Organization for Security and Cooperation in Europe, the International Police Task Force, investigators from the International Criminal Tribunal for the former Yugoslavia, and others). Among the covert intelligence collection activities uncovered were the installation of surveillance equipment in the quarters of international staff and efforts to recruit interpreters and other local hires as informants.[42]

 

After assessing the trove of information confiscated in Operation WESTAR, SFOR discovered that the Croatian Intelligence Service (HIS) and SNS were working together and sharing intelligence through a signed Memorandum of Understanding and that Croatia was sending money to HDZ-BH to support the third entity movement through the Monitor Company. The public revelation of these findings and the death of Croatian President Franjo Tudman in December 1999 directly contributed to the electoral defeat of the HDZ by moderate Stipe Mesic, the first electoral loss for the HDZ since the founding of the Croatian state in 1990. Information gained through Operation WESTAR combined with revelations by the Mesic government eventually led to the discovery of the Achilles heel of the Third Entity Movement: the Herzegovacka Bank. The bank was the center of gravity of the Third Entity movement owing to the role it played in enabling the flow of illicit revenues from Croatia. 

 

 The existential threat posed by the Third Entity Movement to Dayton was made manifest on March 3, 2001 when the Bosnian Croat National Assembly (HNS) declared interim "Croat Self-Rule in BiH." This was followed by HNS officials instructing Bosnian Croats to reject the newly-elected Federation government. HDZ officials subsequently ordered the temporary disbandment of the Croat component of the Federation Army.[43] On March 7, the High Representative removed Ante Jelavic as the member of the Tri-Presidency for his role in the establishment of Croat Self-Rule in BiH. As a direct result the OHR, with support from SFOR and the Federation Ministry of Interior and Financial Police, mounted an operation on April 6, 2001 to seize the facilities of the Herzegovacka Bank. The initial attempt by OHR to install a provisional administrator to take charge of the bank’s operations and seize all necessary records pertaining to illegal activities of the bank owners “was met with organised violence from a mob of Croat extremists, resulting in 22 injuries among international officials...[44] A subsequent operation was successful in taking control of the bank along with sufficient evidence to mount 20 criminal investigations, to include eventual charges against Ante Jelavic, the former Bosnian Croat Tri-President in 2004.

 

Vera and Fields sum up the results of the combined strategy of OHR and SFOR as follows: “…the key players in the illicit financial, political, military, intelligence, and criminal wings of Tudjman’s subversive anti-Dayton structure were exposed. In tandem with his subsequent death and the election of Stipe Mesic (an opponent of the Croat ethno-nationalists) as President of Croatia, the Third Entity Movement was dealt a fatal blow and violent resistance to Dayton from Herzeg-Bosna was ended. The key to success was cutting off their illicit funding through the conduct of intelligence-led operations.”[45] In terms of our metrics, this has most of the hallmarks of success. Use of violence to oppose Dayton ceased, the interests of the leaders in Herzeg-Bosna and the new leadership in Croatia became pliable, and the role of illicit revenue in perpetuating power in Herceg-Bosna was at least reduced, as evidenced by the defeat of the previously dominant HDZ-BH party in 2000.

 

            Unfortunately for the prospects for stabilization in Bosnia, the same cannot be said about the informal political-criminal structures that hold sway in the Bosniak and Serbian polities. The Dayton peace process has achieved notable success in wringing violence out of the political equation, although the occasional flirtations by the entrenched leader of the RS, Milorad Dodik, with a unilateral declaration of independence provides an unlikely scenario whereby conflict could resume. This partial success is tarnished, however, by the profound dysfunction verging on systemic failure of the Bosnian political process that remains in the grip of criminalized power structures. The defeat of the Third Entity Movement constitutes only one out of three, which has not been good enough to alter this reality. Vera and Fields conclude their analysis with this compelling analysis: “History cannot be rewritten, but if the international community had begun the intervention in Bosnia with a basic understanding of the illicit, parallel structures in power in each ethnic community, coupled with the authority that was eventually granted at Bonn-Petersburg and the will to use it to hold the elites at the top of these structures accountable, the odds are that Bosnia would not be a dysfunctional state today.”[46]

Although it is impossible to rewrite history, it is possible to stop reinventing the flat tire. Vera and Fields provide the following recommendations to make this possible:

·      The International Community should rigorously assess the threat from criminalized power structures (CPS) prior to intervening

The historical record testifies to the fundamental misreading of the conflict and the role of Bosnia’s parallel power structures in it. The evidence includes the need to provide the High Representative the “Bonn Powers” in 1997 (two years late); the recognition by SFOR (after three years) that it required the MSU after refusing to support actions against non-military violations of Dayton as mission creep; and the delay in including international judges and prosecutors in the legal system until 2004, (nine years late). This dilatory record in equipping the mission with the means to confront Bosna’s CPS makes it quite an understatement to assert that the “golden hour” was lost. As Vera and Fields observe concerning the faltering attempts by the international community to create institutions that could uphold the rule of law and maintain transparency and accountability over governmental revenue streams and expenditures, “One salient reason these initiatives have only achieved partial success in displacing Bosnia’s three illicit ethno-nationalist structures, ending impunity, and inculcating the rule of law is that the international community failed to recognize the threat and failed to act for far too long. Initiatives such as the Westar Operation should be mounted as early as possible in a mission to raise the costs for illicit activity and establish that the rule of law has primacy because it is backed demonstrably by assertive and effective action by the international intervention.”[47]

 

·      When required, come with a mandate to act early and assertively to confront CPS, including prosecution and adjudication

Vera and Fields make this point succinctly, stating that “Progress toward defanging Bosnia’s illicit ethno-nationalist networks was not possible until the international community recognized that they constituted a threat to peace and expanded its mandate to allow for assertive action to confront them. The most decisive undertakings were SFOR’s Operation Westar in 1999 and the OHR/SFOR operation against the Hercegovacka Bank in 2001 that dismantled the Croat Third Entity movement.”[48]

·      Cutting the flow of revenue to illicit power structures is the “center of gravity”

By definition, criminalized power structures depend in large part on access to illicit revenue streams to maintain themselves in power. When the OHR and SFOR recognized that the Hercegovacka Bank was the center of gravity for defeating the Third Entity Movement and mounted an operation to install a provisional administrator, this was effectively the death knell for the Movement and the threat it constituted to Dayton.

 

·      Until CPS have been neutralized, local ownership of the rule of law is doomed to fail

The issue that lurks beneath this lesson is the principle of consent. Certainly efforts to end impunity and enshrine the rule of law will not meet with the consent of any criminalized power structure. What can the Bosnia case teach us about dealing with this conundrum? The first lesson is “Do no harm.” The US insisted on conducting elections after one year--the supposed prescription for our exit--effectively condemning future reform efforts to failure. Criminalized elites were able to don the mantle of democratic legitimacy, fortifying their capacity to reject reforms. This then required the imposition of the Bonn Powers after a second year of utter failure to make any progress toward implementation of Dayton. Decreeing reforms was not the same as implementing them, however, and the strategy that was followed placed ownership of that process in the hands of the same elites whose methods of maintaining power and extracting wealth were the antithesis of the rule of law. As Vera and Fields conclude, “…putting them in charge of instituting reforms that would have undercut their own power and wealth was fatally flawed.”[49] The infamous case of the assassination of the Bosnian Croat Deputy Minister of Interior, Jozo Leutar, and the failure to bring the perpetrators to justice was part of a pattern that was repeated so often that the European Commission’s Progress Report concluded in 2009 that the “…judiciary…is inert when it comes to investigation, prosecution and conviction of suspects of high-level cases of corruption, especially having in mind the persistent lack of final convictions.”[50] The second lesson, therefore, according the Vera and Fields, is that “Ultimately, when criminalized power structures are the essence of the problem, as in Bosnia, the IC must take the initiative to create an environment where the rule of law can prevail. Only then should ownership be transferred to those who are willing and able to uphold the rule of law.”[51] This will likely require a version of the hybrid international and local special court that is described in the Toolkit section on “International Judges and Prosecutors.” The third lesson is that there are likely to be honest and valiant judges, prosecutors and police who are willing to work with the international community to uphold the rule of law. These are the locals to whom ownership should be bequeathed, and they must be nurtured and assiduously protected. This assuredly will not meet with the consent of those who have profited from the conflict and who would have to adapt their illicit formula for securing and profiting from power. Thus, the final lesson is a step that was missing in Bosnia: establish a constituency for the rule of law that regards the legal system as a more attractive alternative for resolving disputes between the parties to the conflict and supports holding CPS accountable for egregious violations of the mandate. The Bosnia case demonstrates that when these lessons are not heeded, “…turning ‘ownership’ over to local authorities will do little more than consolidate political and economic power in the hands of these ‘unholy alliances.”[52]

·      Beware of espionage by CPS against the mission

The likelihood that criminalized power structures will seek to penetrate the mission is likely to be high, and it does not require sophisticated technical means of surveillances. All missions rely on local staff as translators and administrative support who can be turned into informants through bribery and/or intimidation. Certainly when actions are being planned, operational security is vital; however, merely playing defense is not a winning strategy. Espionage is an unambiguous statement of hostile intent against the mission. There needs to be recourse for holding the individuals involved and their chain of command accountable. As argued above, turning ownership of such cases over to the very parties responsible for the espionage is folly. This is another reason for creating a hybrid special court with jurisdiction over cases of espionage, among other threats to the mission and mandate.

 

B.    Haiti: Gangs

Jean Bertrand Aristide mobilized the gangs of Cité Soleil in the 1990s as a counter to the repression of the Cédras regime; however, he did not originate the linkage between gangs and political power in Haiti. It had long been a feature of Haitian politics, dating back to the 19th Century Zenglendos,[53] and included reliance by the regime of Papa and Baby Doc Duvalier on the Ton Ton Macoutes to maintain power. Another of the warning signs that was overlooked in Haiti was the politicization and criminalization of the Haitian National Police (HNP) by Aristide after he returned to power in 2001. David Beer describes Aristide’s ruinous impact on the HNP as follows: “Progress was erased, and the organization tumbled quickly as some units became little more than gangs, rife with corruption and violent in their methods. Certain elements were supportive of all manner of criminal activity including drug trafficking, robbery, murder, and kidnapping.”[54] This, coupled with a dysfunctional and corrupt court system, meant that Haiti’s legal system was itself part of the criminalized power structure problem rather than the solution. In spite of this legacy, MINUSTAH arrived in 2004 without the mentality or the means necessary to cope with the nexus between gangs and the political class. According to Beer, “The UN strategy and preparations failed to consider the range of illicit structures in the environment, their power to disrupt, and the political-criminal nexus of former President Aristide with the gangs that constituted an existential threat to the mission.”[55]

By the end of 2006, MINUSTAH’s viability was called into question by its inability to confront a mounting tide of kidnappings and other heinous crimes perpetrated by gangs operating out of Cité Soleil. One of the reasons for the mission’s impotence was the mentality of the military contingent that refused to do more than play a supporting role to the MINUSTAH police. They regarded the gangs as merely a criminal problem and thus not their concern. The other constraint was the need to endow the mission with the means essential to counter the illicit political power of the gangs. According to Beer, the capabilities that had to be put in place before MINUSTAH could confront the gang threat were the following:

The successful operations against the gangs of Port au Prince resulted from changes in intelligence collection and analysis, increased numbers and capacity of FPUs [Formed Police Units] (particularly the SWAT [Special Weapons and Tactics Team] team), more effective integration of operations (police/FPU and also the JMAC [Joint Mission Analysis Center] and JOC [Joint Operations center]), an improved partnership with the HNP, and particularly a committed military component [Italics added].[56]

With the arrival in early 2007 of a new Force Commander, General Dos Santos Cruz, the military contingent abandoned its passivity and adopted a confrontational approach toward the gangs of Cité Soleil. The aim of the new strategy was to deprive the gangs of the ability to threaten the peace mission and the people of Haiti. The way the mission sought to do this was the integrated use of force by the military and police to overwhelm each of the gangs one by one while minimizing collateral damage to the community. Gangs were confronted using intelligence-led operations with actionable intelligence and sophisticated target packages provided by the Joint Mission Analysis Center. While MINUSTAH gave the HNP credit for arrests of gang leaders and members, planning for these operations was undertaken by MINUSTAH. The HNP Police Commissioner made partnership possible by directing his SWAT team to respond immediately to MINUSTAH’s short-notice operations. Gang leaders and members were arrested in combined operations by the HNP and MINUSTAH SWAT teams. The operations undertaken in 2007 effectively neutralized the gangs of Cité Soleil, with four of the five gang leaders being arrested along with 800 gang members. MINUSTAH, working in collaboration with the HNP, thus emasculated the gang threat, at least for a time.

The strategy was only a partial success, however, because the gangs only constituted half the criminalized power structure equation. The operations conducted in 2007 did nothing to confront the impunity of elites who had mobilized the gangs as instruments of political power. As Beer argues, “Effective investigation and public prosecution of high profile cases would have served to demonstrate the supremacy of the rule of law. This action might even have included the judicial pursuit of politically motivated conspirators and individuals criminally exploiting the illicit power of gangs.”[57] Jump starting the legal system with the assistance of international judges and prosecutors, however, was conspicuously missing from the strategy. While elections and alternation in power are necessary for sustainability, they are not sufficient. Aristide demonstrated in 2001 that even a freely elected leader can suborn a promising police force that had been painstakingly nurtured by the international community. A sustainable strategy, therefore, requires more than a confrontation bent on dismantling violent and implacable criminalized power structures using intelligence-led operations. The institutional capacity to hold future leaders accountable, respond effectively to attempts to politicize or criminalize the security sector, and uphold the rule of law is also required.

C.   Sierra Leone:

The failure to recognize the threat posed by the Revolutionary Front (RUF) to the United Nations Mission in Sierra Leone (UNAMSIL) had even more dire consequences for the UN peace mission in Sierra Leone than was the case in Haiti. When UNAMSIL’s deployments encroached upon the RUF’s control of diamond mining districts in May 2000, they promptly took 500 UNAMSIL troops hostage. The result, according to Ismail Rashid, was that the mission “tottered on the brink of collapse.”[58] The fundamental misjudgment was to believe that the RUF’s aims were primarily about domestic politics. Although Sierra Leone’s chronically corrupt and unresponsive post-colonial governance had afforded the RUF permissive conditions for an insurgency, in actuality their criminalized power structure was rooted in Liberia not Sierra Leone. It was instigated primarily by Charles Taylor, head of the National Patriotic Front of Liberia (NPFL). According to Rashid:

Taylor wanted to disrupt the Economic Community of West African States Ceasefire Monitoring Group (ECOMOG) deployment and use of Sierra Leone as a base for their Liberian operations. He also sought to counter anti-NPFL groups coalescing in Sierra Leone that threatened his rapacious NPFL and mercenary troops access to Sierra Leone’s resources, including its diamonds.[59]

Looting Sierra Leone’s diamonds was facilitated by their location in the eastern quadrant of the country adjacent to Liberia. By 1995, the RUF had taken control of the diamond fields, “…securing access to a resource that would help them finance their military campaign and transform the organization into a transnational criminal enterprise.”[60]

            Although there was a political faction of the RUF to whom the terms of the 1999 Lomé Agreement appealed, the rebel group was dominated by “hardcore militarists” who “…had become deeply wedded to criminal diamond and arms smuggling networks in Liberia and Guinea.”[61] Thus the dominant RUF leadership was opposed to the terms of the Lomé Agreement since it would eventually entail loss of control over the diamond fields. As became manifestly clear, they were willing to use force to oppose UNAMSIL. Rashid concludes that, “…there was no way to negotiate with the hardcore leadership…who wanted to maintain long-term control of the diamond areas.”[62] The RUF thus qualified eminently as a criminalized power structure opposed to the peace process through violent means whose interests were irreconcilable.

UNAMSIL, however, failed to recognize the rapacious and criminal nature of the RUF leadership, not to mention their sponsor in Liberia, and adopted a strategy based on best case analysis that the RUF would comply with the terms of the Lomé Agreement. The Security Council authorized only 6,000 troops, and they arrived dangerously ill-prepared for the RUF’s intransigence. Rashid describes their brush with calamity thusly, “Newly arrived UN peacekeepers quickly found themselves in a volatile operating environment, with insufficient intelligence, and unsure of how robustly they should respond to RUF threats and hostile actions.”[63] Averting mission failure after the May 2000 hostage-taking fiasco would require both proficiency in combat operations and an appropriate strategy for confronting the RUF.

The UK responded to Kofi Annan’s appeal for a rapid reaction force to rescue the mission. Their campaign plan identified severing the linkage with Charles Taylor as the strategic center of gravity and reasserting control over the diamond fields that fueled the insurgency as the operational center of gravity. The aim was to defeat the RUF. The essence of the strategy, according to Rashid, was the following:

Decisive military actions by the United Kingdom and elements of the Sierra Leone military and CDF saved the mission from complete collapse. The strengthening of the size and peace enforcement capacity of UNAMSIL, supported by a concerted plan of action to defeat and diminish the operational capacity of the RUF and cut it off from Charles Taylor, eventually stabilized the situation in the country.[64]

 

The way this was accomplished included both planned operations and serendipitous developments. The former included the rescue of British hostages from the “West Side Boys” and an offensive in early 2001 by the Guinean military supported by British intelligence that dealt a severe blow to the RUF’s hardline leadership, The latter included the capture of RUF commander Foday Sankoh after civic groups and other pro-government forces had confronted his bodyguards in response to the May 2000 hostage-taking incident. In addition to the deployment of British forces, essential means for successful offensive operations against the RUF included the beefing up of UNAMSIL’s military contingent along with its mandate, combat training for the Sierra Leone Army, and intelligence. According to Rashid, “Perhaps most important of all, they developed better pre-deployment reconnaissance, information gathering and processing abilities, which strengthened their ability to rapidly and appropriately respond to events on the ground. A significant contributor to this capacity was the improvement in the Military Information Cell...”[65]

One mistake made by MINUSTAH that UNAMSIL avoided was the failure to develop the institutional capacity to sustain the peace after the peace mission had successfully confronted the criminalized power structure that was the primary driver of conflict. Reform and restructuring of the security sector, including the police, army, and intelligence apparatus, was spearheaded by the British. They placed particular emphasis on civilian control and accountability, inculcating a community policing model and bifurcating the army’s command and control structure to militate against the possibility of a coup.

The assertive strategy orchestrated by British forces succeeded in defeating the RUF’s criminalized field commanders, opening the way for more pliant leadership to emerge. By the time of the elections in 2002, “…the RUF had effectively ceased to be an effective militarist and criminal organization. It no longer had control over diamonds or any national resources, and it had lost the capacity to derail the peace process through violence.”[66] As called for in the Lomé Agreement, the RUF transitioned into a political party and participated in the 2002 election, garnering only 2% of the vote but accepting the outcome peacefully. The subsequent election in 2007 resulted in a transition of power to the opposition All Peoples Congress Party. As Rashid concludes, “Sierra Leone represents one of the most successful cases of United Nations peacekeeping and more than a decade after the declaration of the cessation of the Sierra Leone conflict in 2002, the country remains stable.”[67]

Owing to the resounding success of this peace mission, the lessons emanating from it carry special resonance. Foremost among them is that the mission was on the cusp of an ignominious collapse in 2000 because it failed to recognize that the RUF was a criminalized power structure willing and able to use force to resist the Lomé Agreement. The lesson is that it is foolish to assume that the attainment of a peace agreement automatically equates to a “post-conflict” environment. If a criminalized power structure is involved, the opposite is far more likely. Planning should accordingly be based on worst-case assumptions about threats to the mission, the peace process, and the civilians the mission is deployed to protect. Certainly when a criminalized power structure is involved, a robust military and police contingent should be deployed with an empowering mandate. When confronted by a CPS with irreconcilable interests, the appropriate strategy is to defeat them, and intelligence is a critical enabler. Finally, the international mission needs to play a pivotal role in defending the peace process and defeating actors like the RUF, but peace will not be sustainable unless the capacity of local institutions is developed to enable them to manage the competition for wealth and power peacefully.

D.   Guatemala: Illegal Entities and the Clandestine Security Apparatus (CIACS)

The 1996 peace agreement that ended the Guatemalan civil war called for eradicating the country’s Illegal Entities and the Clandestine Security Apparatus (known by their acronym in Spanish of CIACS) that had been responsible for the bulk of human rights violations during the country’s 36-year conflict.[68] The clandestine security apparatus originated in military intelligence and spread its tentacles into strategic government institutions during the war, especially the security sector and legal system. The mandate that the United Nations Verification Mission in Guatemala (MINUGUA) received, however, only empowered the mission to monitor and assess the disarmament, demobilization, and reintegration of the former warring parties. Thus, even though the peace agreement recognized the need to address the threat that the CIACS constituted, MINUGUA’s mandate was blind to the issue. Certainly the government, infiltrated as it was by the CIACS who regarded revenue-generating activities like customs, ports, and airports as spoils for their role in prosecuting the conflict, had no interest in voluntarily complying. The CIACS ensured impunity for their criminal enterprises by co-opting the nomination process for Guatemala’s highest level judges and for the Attorney General. Consequently, the stipulation in the peace agreement calling for abolition of the CIACS was never implemented, and the mission ended in 2004.

The consequence of leaving it to the discretion of a suborned Guatemalan government to comply with the requirement to purge itself of the CIACS, according to case study author Carlos Castresana, was that “They transformed themselves from a clandestine security apparatus into a clandestine political-criminal apparatus. Subsequently, their challenge burgeoned as expanding linkages with drug cartels exacerbated the threat to rule of law, human security, and governance…” Many of the current capos of the Guatemalan mafia were formerly military commanders in their respective territories. As MINUGUA was about to end its mandate, human rights groups started to demand the establishment of an International Commission to take on the neglected task of dismantling of the CIACS. The public security situation in Guatemala eventually deteriorated to such an alarming extent that a decade after the peace process had begun the Guatemalan Congress ratified an agreement with the United Nations to field a new mission, the Commission to Confront Impunity in Guatemala (CICIG), in 2007.

CICIG’s mandate was to decommission the CIACS as originally envisioned in the 1996 peace agreement.[69] Thus, it was tasked with confronting a lawless and irreconcilable political-criminal structure that had deeply penetrated the levers of power in Guatemala, but its authorities were analogous to a strengthening or non-executive mission. It was not given prosecutorial powers and could only advise and assist local prosecutors. It was totally at the discretion of the Guatemalan Attorney General whether to pursue a case, and no special provisions were made in the agreement for establishing a special court for these high-profile and high-risk cases. According to Castresana, who headed CICIG from 2007-10, “CICIG had to carry out its mandate absent the ability and willingness of the bulk of the Guatemalan system of law enforcement and justice to cooperate in confronting the CIACS.” It was, however, empowered to collect information freely throughout Guatemala in order to “Determine the existence of illegal security groups and clandestine security organizations, their structure, forms of operation, sources of financing and possible relation to State entities or agents…”[70] It could also initiate legal proceedings against government officials who attempted to thwart the Commission’s efforts. The National Civil Police were directed to provide a special police unit to support their investigations.

The critical first step in CICIG’s strategy was to replace the Attorney General and judges on the Supreme Court and Constitutional Court, among others, who were allied with the CIACS. After six months CICIG had gathered ample evidence of the Attorney General’s complicity. Since he had been appointed by the previous president, it was possible to persuade the new president to replace him and, fortuitously, heed their recommendation to select a competent and professional replacement, Amilcar Velazquez. This enabled the selection of honest Guatemalan prosecutors to staff the Special Prosecutor’s Office for CICIG and the removal of many tainted public prosecutors by the new Attorney General. Working together with its local counterparts, CICIG began to develop solid cases backed by sophisticated evidence-gathering techniques against numerous high-profile targets. Owing to the captive nature of the court system, however, Castresana concluded that “…there were not any courts capable of or willing to work with the Commission to gain a conviction.” To affect change in the composition of the courts, which operate under the purview of the Supreme Court, CICIG had to wait until the terms of appointment for senior judges expired in 2009, two years after the mission had begun. CICIG mounted an extensive media campaign to “name and shame” the unqualified and/or CIACS-affiliated candidates being considered by the nominating commissions and mobilized a coalition of 35 civil society organizations that issued a public assessment of the candidate’s qualifications. A number of shamelessly incompetent appointments were voided as a result, and a qualified and courageous judge, César Barrientos, was appointed to head the criminal chamber of the Supreme Court. This was decisive since he had the authority to create High Risk Courts as the venue for CICIG’s cases and to appoint trustworthy judges to preside. CICIG also pursued a purification process within the broader judiciary and National Civil Police senior leadership.

By 2010, after a small cadre of honorable and intrepid prosecutors and judges had been named to the Special Prosecutor’s Office for CICIG and to the High Risk Courts, CICIG’s strategy was to focus on prosecuting the most prominent CIACS-affiliated political-criminals for whatever offense was easiest to prove. Prosecution in other countries via extradition was also used. The results were astonishing: warrants for the arrest of 139 prominent public officials were issued “…including two former Presidents, former Ministers of the Interior, Defense, and Finance, and a former chief of the National Civil Police. CICIG also indicted corrupt judges and prosecutors.” This resulted in seven high-impact cases before the High-Risk Courts in which CICIG was a “complementary prosecutor” -- all of which achieved convictions.

These remarkable successes were vulnerable, however, to renewed manipulation of the nomination process by the CIACS. This was demonstrated when the term of Attorney General Velazquez expired in 2010. He received no votes to remain in office, and his replacement was known by CICIG to be in bed with the CIACS. In a single gambit, the viability of CICIG would have been vitiated. Castresana resigned in protest and called upon the Constitutional Court to invalidate the new appointment, which they did. The ensuing international furor resulted in the selection of Claudia Paz y Paz, a human rights lawyer and professor, to be the next Attorney General. Paz y Paz solidified the collaborative relationship with CICIG and went on to oversee the most spectacular outcome of the CICIG era: the conviction of former dictator Efrain Rios Montt for genocide in 2013 by a High Risk Court presided over by Judge Yassmin Barrios.

The CIACS then redoubled their counteroffensive. The conviction of Rios Montt was immediately invalidated by the Constitutional Court forcing a retrial, and Attorney General Paz y Paz was removed prematurely from her post. In August 2014 “…Paz y Paz was prohibited from leaving Guatemala and had her bank assets frozen, although she had already left the country.”[71] Additionally, César Barrientos, the Supreme Court judge who was instrumental in the creation of the High Risk Courts, was harshly vilified in the press resulting in his suicide. Reinforcing this chilling message for judges and prosecutors who might aspire to hold CIACS accountable to the law, the judge responsible for the Rios Montt conviction, Yasmine Barrios, was reassigned to a minor offenses court.

Even though the CICIG mandate is not due to expire until 2016, some conclusions are possible at this stage. In spite of operating under a mandate that is not equal to the task of dismantling the power structures of the CIACS, CICIG has achieved historic successes. The most powerful members of this political-criminal network no longer enjoy the certainty of impunity. Overall, the conviction rate for all crimes has improved from 2-4% prior to CICIG’s tenure to around 30% by 2013. The most vital question, however, is whether the Guatemalan legal system can continue to hold CIACS members accountable for their crimes after CICIG’s departure. As evidenced by the CIACS manifest ability to subvert the nomination process so that it functions to remove rather than reward those who have the temerity to apply the law with equal forcé to them, this question cannot be answered positively with any confidence. In October 2014, this concern was reinforced by the resignation of Claudia Escobar, an appelate court judge who had just been reappointed to her post. She condemned the selection process she had just completed as “corrupt” and a “spoils system” estimating that only a quarter of those who had just been nominated had the qualifications necessary for the job they were to perform.[72] Only through reform of the Constitution to correct the CIACS-contaminated nomination process can CICIG’s Herculean efforts be made sustainable; however, other than recommending reforms, all that CICIG can do is work to mobilize Guatemalan civil society and hope they can wield sufficient clout to alter the balance of power that currently is tilted decisively in favor of the CIACS. The likelihood of this happening is not high.

The dominant lesson from this valiant experiment in the use of international prosecutors in an attempt to dislodge an irreconcilable political-criminal structure from power is that there was a serious mismatch between the end CICIG was mandated to achieve and the ways and means it was provided to attain them. Indeed, the original concept, the Commission for the Investigation of Illegal Groups and Clandestine Security Organizations, had the authority to prosecute cases against CIACS, but this was ruled unconstitutional. CICIG was thus placed at the mercy of the CIACS-influenced nomination process to determine who the Attorney General would be that decided whether charges would be brought against them and the composition of the courts that would hear their cases. When dealing with an irreconcilable CPS that has had more than a decade to insinuate its lackeys into the highest echelons of the legal system and pervert the nomination process, this was not a winning hand. A “strengthening mission” without any authority to prosecute or adjudicate cases itself and with only the power of persuasion to use in influencing the selection of prosecutors and judges with whom to work is not appropriate for confronting an irreconcilable CPS. Nor is this likely to be an adequate formula for other types of CPS either.

Fortunately Castresana has provided a straightforward solution to this ends-means mismatch: provide a mandate for a hybrid Special Court, including international judges and prosecutors and a decisive role for the international mission in selecting the local judges and prosecutors who will serve on the court. As Betsy Andersen proposes in the mandate section in the Toolkit chapter, if the Constitution disallows this, the court should be mandated to operate outside of the local legal framework in the same way that war crimes tribunals have operated. The corollary to this is that when the peace agreement calls attention to the need to remove an illicit structure from power, the mandate should make it a priority to do this rather than leaving it up to the criminalized apparatus to police itself, as MINUGUA’s mandate did. 

The international community needs to come prepared to prevail when it confronts a criminalized power structure not only for the victims of the past but for the sake of the brave local judges and prosecutors who join with them in the dangerous battle to curb impunity and bring high-ranking CPS members to justice. If the mission ends before achieving its goal of disempowering the CPS, the honorable and decent lawyers and jurists with whom they have worked could be left to pay a very high price.

II.             Violent Opposition but Negotiable Interests:

Kosovo, Bosnia, Afghanistan (Taliban)?, Iraq, Democratic Republic of the Congo: M-23

A.    Kosovo: Kosovo Liberation Army (KLA)

Even though the conflict in Kosovo was self-evidently driven by a dispute between Albanian and Serb communities over who should exercise sovereignty, according to Dziedzic, Mercean, and Skendaj, “KFOR [the NATO-led Kosovo Force] did not anticipate that its forces would face a greater security challenge from violence against the Serbs by extremist elements of the KLA than from armed resistance by Serb forces.”[73] Also overlooked was the less apparent but no less vicious struggle within Kosovo’s Albanian community between the KLA and followers of pacifist Ibrahim Rugova to fill the power vacuum created by the withdrawal of Serb forces. The instrument used for an assassination campaign against Rogova’s supporters was the KLA’s National Intelligence Service or SHIK that by 2004 had transferred its allegiance to the Democratic Party of Kosovo (PDK), one of two parties formed by prominent former KLA leaders. The UN Mission in Kosovo (UNMIK),  lacking an appreciation that the mission was confronted by a criminalized power structure violently opposed to the peace process, decided initially to rely totally on the local judiciary, which effectively meant Albanian judges owing to the inordinate risks Serb judges had to confront. Within a year the ensuing injustice meted out to Serbs and the total impunity enjoyed by former KLA members compelled UNMIK to introduce international judges and prosecutors into Kosovo’s legal system. The mission’s other critical blind spot was the exclusive fixation on the formal economy to the neglect of the flow of criminally derived revenue to extremist elements within the KLA and the need for effective corporate governance structures along with the rule of law to prevent the illicit capture of revenue from publicly owned enterprises, one third of Kosovo’s economy. As the authors of the Kosovo chapter admonish, “Missing from UNMIK’s strategic calculations was how to drain the profit out of conflict and drive up the cost of obstructionism…This threat was not initially recognized. The tendency was to define the problem simply as organized crime and, therefore, a matter of secondary importance.”[74]

Thus, the litany of risks engendered by the failure to recognize extremist elements within the KLA as a criminalized power structure include attempted ethnic cleansing, use of clandestine intelligence apparatchiks to eliminate political competitors, a void in the rule of law, and the capture of a substantial segment of the economy that was accounted for by publically owned enterprises. These risks are not unique to Kosovo. According to the authors, “The price of failing to recognize criminalized power structures as a root cause of conflict was measured in the loss of lives of innocent civilians and international peacekeepers. The “golden hour” was lost, and it took several years to cobble together the capabilities required to complete the “intelligence-to-incarceration” continuum needed to deal with violent obstructionism.”[75]

In spite of UNMIK’s initial failure to diagnose extremist KLA elements properly and to deploy the means necessary to respond effectively, the mission quickly established that their interests were negotiable. The signing of the “Undertaking” less than a month after the inception of the mission obligated the KLA to demilitarize and transform itself into an unarmed civil defense force. Owing to his prior experience with criminalized power structures in Bosnia, UNMIK’s Principle Deputy Special Representative of the Secretary General, Jock Covey, established the mission’s strategic “prime directive:” to support those who support the peace process and oppose those who oppose it. This established more than the aim of UNMIK’s strategy.  It also provided the centerpiece for the way to deal with violent extremists. The UN’s traditional neutrality was folly. As the authors of the Kosovo chapter explain, “For the KLA and their Serb counterparts, the so-called Bridgewatchers, ‘peace’ was but the perpetuation of conflict through other violent means.”[76] Such root causes of conflict had to be confronted and the cost of violent obstructionism rendered prohibitively costly. Simultaneously, however, across all of UNMIK’s lines of effort (political, security, rule of law, and economic), this “stick” was matched with a parallel effort to establish more attractive peaceful and licit alternatives for the competition for power and wealth. Eventually this overarching strategy was branded “conflict transformation.”[77]

The strategy for conflict transformation consists of three reinforcing components:

·      Shape the context by dismantling or disrupting criminalized power structures so as to neutralize their ability to thwart the peace process. This is not a requirement that indigenous institutions can be expected to discharge, even though the international community has sometimes insisted, in utter futility as in Bosnia, that local police forces should arrest their own war criminals. The international community must come prepared to confront this threat to the peace process, otherwise the “golden hour” will be squandered and the mission may be placed in jeopardy. This step is sometimes neglected, however, in favor of simply developing institutional capacity and transitioning to local ownership. In the presence of criminalized power structures, which entail a dangerously high degree of overlap between criminal and political power, neglecting to shape the context first is a fatally flawed strategy. There are potentially replicable principles in the way UNMIK implemented this dimension of the strategy (i.e., opposing those who oppose the peace process). First UNMIK had to rely heavily on KFOR for this purpose, which meant that the two entities needed to establish collaborative civil-police-military decision making and planning mechanisms. Second, KFOR, most notably the British, employed a hybrid strategy combining peacekeeping with counterinsurgency concepts. At the heart of the strategy was the assertive conduct of joint military and police intelligence-led operations in support of UNMIK to strike against militant extremists. Third, confronting the impunity of criminalized power structures requires the deployment of the full continuum of rule of law capabilities from intelligence to incarceration, and internationals need to arrive prepared to take the lead. Finally, the center of gravity of the economic strategy is to deprive violent obstructionists of their sources of illicit revenue.

 

·      Develop the capacity of institutions for resolving disputes peacefully and generating wealth through licit mechanisms in the free market. As defined in Quest for Viable Peace, conflict transformation “…entails diminishing the means and motivations for violent conflict while developing more attractive, peaceful alternatives for the competitive pursuit of political and economic aspirations.”[78] These peaceful alternatives should include institutions that provide free and fair elections, respect for minority rights, monopoly of force coupled with a mentality of service to the community, rule of law with the capacity to hold the most powerful accountable, and an enabling environment for a market-based economy.

 

·      Nurture safeguards on the exercise of power to ensure that the security apparatus and judicial system do not again become instruments of persecution of the opposition, that public revenue generation and expenditure and private sector economic activity are not captured by political-criminal networks, and that illicit revenue does not determine who governs. Essential for this purpose are the ability to observe governmental performance (transparency) and punish misconduct (accountability). Processes linked to the state, such as competitive elections that permit alternation in power, an autonomous judiciary, and independent oversight mechanisms for the security sector, are necessary but not sufficient. A vibrant civil society is also required including a free press, non-governmental organizations dedicated to exposing corruption and shielding whistle blowers, and an independent intellectual community. One promising innovation from the Kosovo experience has been a Rockefeller Brothers Fund project integrating the efforts of investigative journalism, NGOs, and think tanks by creating a reinforcing civil society “triangle” (See the Toolkit Chapter). Another critical innovation has been the recognition that the timeline for developing civil society as an effective check on capture of the state by criminalized power structures is longer than the first two components of this strategy. Accordingly the European Union Rule of Law Mission Kosovo (EULEX Kosovo) took over the task of fostering the rule of law from UNMIK in 2008 and remains engaged at least until 2014. To explain why this international safeguard has been necessary, the authors of the Kosovo chapter cite the International Crisis Group, “Kosovo suffers from the widespread impression that it is run by a lawless political elite in control of every aspect of society…EULEX, is investigating widespread corruption at the highest levels, and its efforts to date have shown gaping holes in regulation and enforcement.”[79]

 

To implement these elements of a conflict transformation strategy for a criminalized power structure that is obstructing the peace process through violent means but with interests that are negotiable, the following are essential means:

·      A Mandate with Authority to Confront Criminalized Power Structures

UN Security Council Resolution 1244 endowed UNMIK with authority to issue regulations and revise the legal code, appoint and remove officials, and enforce the law. This was vital for UNMIK’s success.

 

·      The Capability to Conduct Intelligence-led Policing

The entire rule-of-law continuum from intelligence to incarceration is required, but intelligence is the key to mounting an assertive strategy to identify the critical nodes of illicit networks and dislodge them from power. Rigorous human source management and evaluation should be the starting point, but all sources of information available to the mission should be systematically collected and analyzed. Troop and police contributing countries should also be tapped for national intelligence about criminalized power structures.

·      A Robust Policing Capability for Public Order and High-Risk Arrest

The credibility of the mission is determined in the first few months, often referred to as the “golden hour.” Crowd and riot control units with the ability to control civil disturbances and curb retaliatory violence through non-lethal means are required at the outset of the mission. In order to act on intelligence about the vulnerabilities of criminalized power structures and disrupt their efforts to undermine the mission, a specialized high-risk arrest team is also essential.

·      Personnel with Critical Capabilities Should be Permitted to Serve Extended Tours

Time is an essential commodity for developing confidential sources, assembling an understanding of illicit networks, compiling admissible evidence, and prosecuting and adjudicating cases. Personnel serving in these critical positions should be encouraged to serve for multiple years unless their performance is sub-standard.

The conflict transformation strategy implemented by UNMIK and KFOR has largely been a success, but with a major caveat. KLA extremists have ceased the use of violence against the Serb community, domestic political opponents, and neighboring states with contiguous Albanian populations. The April 19, 2013 normalization agreement with Serbia effectively guarantees that remaining issues in the relationship will be resolved through peaceful processes. The international political and security strategies, therefore, can be acclaimed as resounding successes. The caveat, however, is that the strategies to curb the impunity of former KLA leaders by institutionalizing the rule of law and curtail the influence of illicit revenue over the pursuit of power and prevent the capture of the state can at best be considered works in progress. The authors of the Kosovo chapter cite a 2011 Clingendael report that sums up the limited progress that has been made in transforming former KLA structures into licit competitors for wealth and power stating, “The current dynamics of governance in Kosovo point to a concentration of power in the hands of the ruling Democratic Party of Kosovo (PDK) and its supporters, who are accused of links to networks of corruption and other criminal activities

B. Afghanistan: The Taliban, Traffickers, and Truckers

The origins and tenacity of the Taliban are intimately linked to the region’s criminalized economy. According to Gretchen Peters, author of this chapter, anarchic conditions that followed the Soviet withdrawal from Afghanistan in 1989 eventually “…prompted a coalition of trucking firms, drug traffickers, ultra-conservative religious leaders and Pakistani intelligence officials to foster the emergence of the Taliban, a movement that was inextricably linked to the region’s illicit economy from its inception.”[80] Support from Pakistan’s Inter-Services Intelligence in the form of recruits from that country’s madrassas, as well as illicit financial backing from regional drug trafficking and trucking networks, played a critical supporting role in allowing the Taliban to capture most of Afghanistan by 1996. This also placed the Taliban at the center of the region’s underground economy.

 

The impact of the Taliban’s usurpation of power on Afghan opium production was immediate, with output doubling between 1996 and 1999. During the period when the Taliban functioned as a “government,” it collected taxes from poppy growers, drug processing labs, and heroin exporters. After 9-11 when the Taliban was forced from power and reverted to its role as an insurgency, the Quetta Shura began operating processing labs and exporting heroin itself. According to Peters, “U.S. law enforcement and military officials now track more than three dozen separate smuggling operations in Afghanistan, more than half of which answer directly to the Quetta Shura.”[81] Indicative of the prominence of opium trafficking for the Taliban, when the International Security Assistance Force and Afghan troops overran the Taliban command center in Marjah in Helmand Province in 2009, they confiscated 92 metrics tons of heroin. According to Peters this was “…the second largest drug haul in world history.”[82] As the Taliban has expanded its involvement in opium trafficking from tax collection to levying production quotas on growers, operating processing labs, and exporting drug shipments, heroin trafficking has evolved from being a means of revenue generation for the insurgency into a motivation of its own. The result according to Peters is that “…the Taliban network is behaving more like a profit-driven, drug trafficking franchise than a strictly political organization.”[83] This has relevance for the peace process, since opium traffickers stand to profit from continued instability, and may perceive a peace process, and the emergence of a strong, viable state in Afghanistan as a threat to future profits. . 

The Taliban leadership is closely intertwined with the region’s trucking industry, both “through business interests and intermarriage.”[84] Some Taliban leaders operate their own trucking companies. The cross border smuggling of commercial goods – which robs both Afghanistan and Pakistan of needed tax revenue – has provided critical funds for conflict actors for decades. As of the 1990s, the World Bank estimated that the magnitude of cross-border smuggling activity in the region was $2.5 billion annually. Peters cites Ahmed Rashid’s assessment of the Taliban-trucking nexus from his book Taliban: “The cross-border smuggling trade has a long history in Afghanistan, but never has it played such an important strategic role as under the Taliban.”[85] Post 2001, a related source of revenue for the Taliban was extortion of “fees” from trucking companies hired by ISAF to ferry supplies to units deployed throughout Afghanistan. According to Peters, “U.S. military officials have said at least 10 percent of the Pentagon’s logistics contracts consist of payments to insurgents.”[86]

Owing to the sizeable share of Afghanistan’s GNP that is accounted for by heroin trafficking and smuggling, the Taliban are not the only party to the conflict seeking to cash in on it. Peters claims that, “There are close inter-linkages between powerful figures in these industries and the insurgency, warlords and their militias, and senior officials in the Afghan government.”[87] A case in point was the apparent linkage between Haji Juma Khan, smuggling kingpin in southwest Afghanistan who had close ties to the Taliban, and President Karzai’s now deceased half-brother, Ahmed Wali Karzai. According to Peters, the two collaborated to ensure safe passage of Khan’s drug shipments past Afghan security forces. They also conspired to fill the vacuum created after the U.S. arrested Khan’s main heroin-trafficking rival. The most troubling account of apparent collusion stems from the first reported meeting between the Karzai government and the Quetta Shura in 2010. The emissaries involved were Ahmed Wali Karzai and Mullah Baradar, the deputy to Taliban leader Mullah Omar who also plays a prominent role in heroin trafficking. According to Peters, “…their meeting focused on the country’s lucrative heroin trade…These power brokers were clearly focused on making sure underlying economic factors – the drug trade specifically – were discussed before other political grievances and core issues came into focus.” [88] There are also suspicions that actors close to the state profit off the protection rackets associated with the trucking industry. The most prominent case involves cousins of Hamid Karzai who operate the Watan Group. An investigation by the US military into their business indicated they were facilitating making protection payments to insurgents.[89] As a result Peters concludes that “Indeed, the most significant change since 2001 is that there are now overlapping Taliban and state-linked CPSs which collaborate to profit from the ongoing conflict, a factor that NATO strategy has failed to address.”[90] Peters argues that the illicit political economy that has burgeoned since 2001 militates against peace because conflict is so lucrative for the protagonists.

            Given the salience of the criminalized regional political economy as a driver of conflict in Afghanistan, a strategy to take the illicit profit out of the conflict would seem to be indicated. Peters finds, however, that this dimension of strategy has been overlooked, stating that “there were never substantive discussions on underlying economic issues that fed the violence, specifically the narcotics trade, much less offers from the international community of the kind of substantive economic support and farm subsidies that might help wean Afghanistan’s economy off of heroin.”[91] In addition to fostering economic alternatives to drug trafficking and smuggling, another essential component of such a strategy would be to distinguish between Taliban factions that have negotiable interests and those that are implacably tied to criminal activity. Alternative livelihoods should be used to co-opt the former while the latter should be confronted as a priority for military operations and, if possible, for prosecution. Finally, the complicity of the government must be confronted, as Peters argues “because the state is highly corrupt and tied to the narcotics trade, which in turn fuels continued militancy, which is also financed by narcotics and crime.”[92] To do this Peters suggests ISAF should have focused its investigative resources on the convergence among the Taliban, terrorism, and organized crime. The US and international community should have mustered the will to expose the nexus between governing elites and the criminal activity, and international mechanisms should have been established to prosecute such cases. Ultimately, the Afghan legal system will need to be endowed with the capacity to confront impunity by criminalized elites.

            In addition to the above, Peters offers two lessons that have universal applicability:

o   Recognize and address the impact of the illicit political economy on the conflict

 

o   Organized crime and corruption should not be dismissed as secondary issues

 

In sum, Peters offers this admonition: “Afghanistan has illustrated that a foreign intervention ensures its own defeat when a blind eye is turned to local corruption and drug trafficking.”[93]

A.    Iraq

The Iraq case study may represent the most egregious example of the failure to recognize the potential for spoilers of virtually any ilk, including criminalized power structures. Case study authors Phil Williams and Dan Bisbee note the “wishful thinking and naivety” that permeated the Bush Administration’s planning for post-invasion Iraq, premised as it was on the notion that US-led forces would be greeted as liberators.[94] Owing to its best-case presumptions about the absence of post-invasion challenges, the Bush administration was reluctant to acknowledge the existence of an insurgency. When Muqtada al-Sadr and his followers in Jaish al-Mahdi (JAM) began to oppose the US intervention, however, the extent of the threat they posed was overestimated, and the group was branded as irreconcilable. The consequence, according to Williams and Bisbee, was that “In the formative period following the invasion…opportunities were missed to incorporate the Sadrist Movement more fully into the political process.”[95] CPA’s response to Sadr was typical of the way most governments confronted by insurgencies respond in that they treated al-Sadr as an illegitimate “rabble rouser,”[96]  thereby foreclosing the diplomatic option. In the estimation of Williams and Bisbee, “…targeting of al-Sadr as an irreconcilable transformed resentment into violence and inadvertently helped to enhance al-Sadr’s reputation and status.”[97]

The most revealing insight provided by Williams and Bisbee is that JAM was far from monolithic. Rather, it was a composite of actors with different motivations, some of whom were indeed predatory criminal gangs and irreconcilable, but others, including Sadr himself, had political and social aspirations that made them open to accommodation. Thus, at the outset of the intervention JAM was a hybrid of both criminally motivated irreconcilables and politically and socially motivated elements who opposed the US presence through violent means, but their interests were nevertheless negotiable. The differences among these factions were potentially exploitable, but it took until 2007 for this insight to make its way into the Coalition strategy.

All of JAM’s factions relied upon revenue generated from illicit activities, and al-Sadr implicitly encouraged this by issuing a fatwa immediately following the 2003 US invasion that authorized looters to keep what they had stolen if they donated 20 per cent of their take to the local Sadrist office. The most lucrative source of funds was “taxing” oil smuggling activities in Basra, but JAM exploited “…a variety of tactics to gain control over vast swaths of Iraq’s black and gray economies and co-opt significant components of the Iraqi state to generate revenue.”[98] Some of these monies were siphoned into personal bank accounts of criminally driven members of JAM’s militia force, the Mahdi Army; some were used to fuel Sadr’s political apparatus; and others funded social welfare programs.

In confronting a violent movement like JAM that contained both criminally inspired irreconcilables and potentially pliable politically and socially motivated actors, use of coercive measures was an appropriate response. This phase of the strategy began in early 2004 with the shuttering of the leading Sadrist paper and arrest of a prominent JAM official. Predictably, JAM reacted assertively mounting an offensive on hospitable turf in Karbala, Najaf, and Kufa where the presence of holy shrines served to neutralize the Coalition’s advantage in heavy weaponry. In spite of this, JAM was dealt a costly defeat, forcing Sadr to rethink his strategy. This led to a much less confrontational posture with an emphasis on contestation for power through the electoral process. The ensuing December 2005 parliamentary elections yielded a handsome payoff, with the Sadrists capturing thirty seats and gaining control of the Ministries of Health, Transportation, and Agriculture which had the tangible benefit of “…enabling an expansion of the group’s patronage network.”[99]

This constructive trend for the political wing of JAM was nullified in February 2006 by the bombing of the golden-domed al-Askari Mosque at Samarra, one of the holiest Shiite shrines. Although al-Sadr’s initial proclamations were conciliatory, the impetus for revenge and self-preservation was overwhelming, thrusting the Mahdi Army’s commanders, many of whom had mercenary impulses, onto center stage. The result, according to Marissa Cochrane, was the “…emergence of a mafia-like system” that “undermined Muqtada al-Sadr’s control over his commanders.”[100] As Iraq descended into civil war, sectarian cleansing became a lucrative enterprise, with the homes of assassinated or displaced Sunni residents being expropriated by Mahdi Army commanders who sold or rented them. The thuggish behavior of many if not most militia commanders led to the Movement’s loss of legitimacy among the Shiite population, seriously undermining al-Sadr’s political and social aspirations. As a result, by mid 2007 the door was open for a new Coalition strategy toward JAM.

After a clash in August 2007 with the rival Badr Militia in Karbala that left many pilgrims dead and JAM being held responsible, al-Sadr ordered a suspension of all militia activities for six months, including attacks on US forces, for the purpose of purging rogue elements from JAM. To carry out this directive, al-Sadr assembled an elite group of loyalists called the Golden Battalion and assigned them the task of disciplining or exterminating recalcitrant, criminalized cadres. Another group known as Noble JAM opened secret negotiations with the Coalition commander, General David Petraeus, about collaborating in this crack down. As a result, according to Williams and Bisbee: “US strategy shifted from a focus on JAM as a largely irreconcilable spoiler to one that saw eventual success in exploiting internal fissures within the Sadrist Movement to expose rifts and neutralize some of the more criminally motivated and politically recalcitrant elements, permitting an overall move towards greater political legitimacy for the Movement as a whole.”[101]

Collaboration between the Coalition and Nobel JAM continued into 2008 resulting in an announcement by Sadr in February that the ceasefire would be extended; however, continued unrest involving Sadrist forces in Basra provoked a major offensive ordered unilaterally by Iraqi Prime Minister Nouri al-Maliki in March that had to be quickly supported by US surveillance and air power. This led to a major defeat for Sadr, but it also ended the JAM ceasefire, precipitating protracted retaliatory rocket fire on the Green Zone emanating from Sadr City.[102] US and Iraqi forces mounted an offensive into Sadr City, previously a largely impenetrable JAM bastion, compelling al-Sadr to petition for a ceasefire in May. The result was another strategic defeat for the Mahdi Army, with Iraqi forces taking control of Sadr City for the first time. Ironically, these repeated military setbacks in Basra and Sadr City advanced Sadr’s effort to neutralize the clout of JAM’s most dangerous and destabilizing elements. In the view of Williams and Bisbee, “In effect, it allowed him to disengage from those parts of the movement where he lacked control and to re-energize other elements such as his social and religious programs.”[103]

 

In June 2008, al-Sadr decreed that the Mahdi Army would be largely demilitarized and reoriented toward religious and social purposes, with a remnant retained as his personal militia. Leading up to the March 2010 elections, he played a constructive role and was rewarded with an increase from 30 to 40 in the number of parliamentary seats for his party. Williams and Bisbee conclude that “This was not the JAM of old, and it appeared that Sadr had successfully engineered the transformation of his movement and its now more disciplined militia into the political mainstream.”[104]  JAM had been transformed from a violent opponent of the political process with major elements of the Mahdi Army actually being irreconcilables into a peaceful supporter of the process, and it no longer contested the government’s monopoly of force.[105]

One salient lesson to be derived from this case is that force coupled with non-violent alternatives for pursuit of political aspirations is an appropriate strategy for a criminalized power structure that uses violence to oppose the peace process. It also proved to be an effective strategy for JAM’s irreconcilables. The purpose for the use of force, however, was different. For irreconcilables, the aim is to  defeat or perhaps incarcerate them. For actors with negotiable interests, in contrast, the purpose is to alter their political calculus by driving up the costs for using violence so that legitimate alternatives for the pursuit of power become more attractive. That is why it is vital to combine force with diplomacy that proffers political alternatives. In this case, the strategy succeeded not in defeating JAM but in persuading it to pursue its aims in a more legitimate way through the electoral process. It was instructive that al-Sadr first won a quota of power in the December 2005 elections and subsequently determined that the irreconcilable criminal elements of the Mahdi Army were a threat to his political and social agenda. Thus by combining use of force in response to violence by JAM with an opening for political participation, the Coalition helped to drive a wedge between these different factions. This ultimately led to collaboration between al-Sadr’s Nobel JAM and Coalition forces to subdue many irreconcilables. This suggests that there are likely to be exploitable tensions between those elements of a criminalized power structure that aspire to political power and those that are motivated primarily by the opportunity for personal profit through illicit means.

Another takeaway from this case is the requirement to assess and differentiate between different types of criminalized power structures. The distinction between irreconcilables and violent opponents who have negotiable interests may not be readily discernible, however. One way to parse this may be to keep the door open for a diplomatic solution rather than foreclosing it prematurely like CPA did. This should help to expose whether the group is monolithic or has fissures between factions that are genuinely irreconcilable and driven only by avarice and those that are motivated by political aspirations. A related point is that we need to be open to the prospect that power structures may transform themselves, as JAM did. Our strategy must be adapted accordingly, as the Coalition demonstrated in 2007.

III.           Supports the Peace Process

Afghanistan (criminal patronage networks); Colombia (paramilitaries); Iraq (Maliki)

A.    Afghanistan: Criminal Patronage Networks

Forsberg and Sullivan describe the corrosive impact of criminal patronage networks on prospects for peace in Afghanistan. They define this variant of the criminalized power structure (CPS) phenomenon as follows: “…criminal patronage networks (CPNs) are engaged in the capture and subversion of critical state functions and institutions and are protected by and serve the interests of patrons in the senior ranks of Karzai’s coalition government.”[106] The authors cite the 2010 observation by Rangin Dadfar Spanta, Afghanistan’s National Security Advisor, about the country’s “mafia networks” that “…begin with the financial banking system, with corruption networks, with reconstruction and security firms and also with drugs and the Taliban; they are in Parliament and they are in government.”[107] What distinguishes these networks from most other CPS is that extraction of illicit revenue was initially more a motivation for state capture than a means, and their emergence took place after rather than before the international intervention.

 

As the authors make clear, there was nothing traditional about criminal patronage networks. The origins can be traced to mujahedeen resistance to the Soviet intervention from 1979-89. What began as a multi-ethnic opposition movement became polarized, however, into competing ethnic camps in the wake of the Soviet withdrawal. According to Forsberg and Sullivan, “The rivalry between the largely Pashtun Hezb-e Islami and the Tajik Jamiat-e Islami precipitated Afghanistan’s 1992-1996 civil war.”[108] The consequence of this was the emergence of the Taliban and their dominance of most of Afghanistan after 1996, until the US responded to the 9-11 attacks that emanated from Afghan soil. The ensuing 2001 Bonn Conference was intended to provide a framework for peace, but it perversely served as a prescription for criminalization of the state. In the estimation of the authors, “Corruption in Afghanistan reached crippling levels as a result of the character of the county’s post-2001 political settlement which was built on the distribution of political power between factions formed during the country’s civil war.”[109] 

One of the outcomes of Bonn was to concede the Ministries of Defense and Interior to the Tajik Jamiat-e Islami party under Mohammad Qasim Fahim, which, the authors note, was “…a result of having occupied Kabul with its militias…”[110] Thus Hamid Karzai, who was designated as interim president by the Bonn Conference, was dealt a very weak hand. The only trump card that he might have played--US support for constraining Fahim--was not forthcoming. Indeed, the Bush administration encouraged accommodation rather than confrontation with Afghanistan’s regional potentates. As a result, there were no consequences for wholesale abuse of power and looting of state resources, which soon included siphoning off customs revenue, misappropriating international assistance, protecting heroine traffickers, and exploiting financial institutions for personal gain.[111] Emblematic of the kleptocratic political economy that resulted was the collapse of Kabul Bank in 2010 which required a bailout equating to more than 5% of the country’s GNP. According to Forsberg and Sullivan:

Under the influence of the Fahim family, Afghanistan's largest bank had, in essence, become an instrument of patronage employed by the ruling elites. The actions of [bank founders] Farnoud, Fruzi,  Fahim [half-brother of Mohammad Fahim], and Mahmoud Karzai suggested designs for a state-sponsored oligarchy in which several ruling families would dominate the business sphere on behalf of the regime, dispensing access to capital and business opportunities as a form of patronage.”[112] [Brackets added]

In a speech in 2002 Karzai effectively conferred impunity on CPNs stating, “Justice becomes a luxury for now. We must not lose peace for that.”[113] Even after winning election as President in 2004 and again in 2009, however, Karzai continued “a strategy of balancing, dividing, and co-opting—rather than confronting—Afghanistan’s fractious strongmen and their clients.”[114] In 2004 he broadened his CPN-based coalition by co-opting the other mujahedeen faction that had been a protagonist in the 1992-6 civil war: the Pashtun-dominated Hezb-e Islami. The patronage in this case included the Ministries of Education, Economy, and Interior. Rather than being a temporary expedient, impunity for members of Karzai’s CPN coalition was central to the illicit political economy upon which his regime was founded.

The US neglected the menace posed by Afghanistan’s criminal patronage networks for several years. Instead, the authors note, “…U.S. policy often exacerbated the problem by using regional strongmen and their CPNs as proxies in operations against al-Qaeda and Taliban fighters.”[115] In 2003, when violence among competing regional militia commanders posed a threat to stability, the US adopted a “warlord strategy” involving coercive measures to compel disarmament of militias combined with co-optation of commanders into the central government. Rather than diminishing the CPN threat, this strategy merely traded off a non-institutionalized renunciation of violence by warlords for an expansion of the number of CPNs divvying up governmental largesse. Disarmament, demobilization and reintegration of militia forces, for example, often resulted in their rebranding as police, endowing them with the legitimacy of the state to engage in predatory and criminal practices. In the assessment of Forsberg and Sullivan, “Violent conflict between armed militias and overt factionalism was sublimated into competition for state office, patronage, and wealth. Although intimidation remained omnipresent in both the public and private sectors, money replaced guns as the leading source of political influence.”[116]  The consequence of ignoring the CPN threat was to divert the focus of government away from responding to the needs of the population, thereby sapping it of legitimacy and public support against the Taliban insurgency. The authors call attention to “…the connection between the Taliban’s reemergence after 2003 and the abuse of power by government officials, security forces, and their networks of affiliates.”[117]

            The strategy undertaken by the international community since 2002 has focused primarily on capacity-building.[118] This includes the massive resources allocated to develop the Afghan National Security Forces (comprised of both the army and police). This strategy foundered, however, because “…technical assistance and capacity-building alone, absent measures to counter the influence of CPNs, could do little to prevent the growing dysfunction of Afghanistan’s state institutions.”[119] To confront the crippling impact of CPNs required depriving them of impunity, but this did not become a focus for US policy until 2007. At first this “prosecutorial approach” relied upon the Afghan Attorney General’s office, with the result that the principle targets were Karzai’s political rivals and media critics. Ambassador Tom Schweich, the coordinator for this initiative, resigned in 2008 and published a New York Times editorial “…that characterized Afghanistan as a narco-state in which the Karzai government protected a class of criminal elites.”[120] In 2009 a new entity for prosecution of political criminals, the Major Crimes Task Force (MCTF) was launched under the tutelage of the FBI with the intention of shielding it from political interference. After some initial successes, however, this initiative was neutralized after the MCTF arrested Amad Zia Salehi, “…a key palace insider who moved money to facilitate Karzai’s political agenda and was on the payroll of the CIA.”[121]

 

            By 2010, a decade after the intervention, ISAF designated CPNs as a strategic threat and sought to counter them by creating the Combined Joint Interagency Task Force–Shafafiyat in tandem with other members of the international community. One of the principle lines of efforts for Shafafiyat was to stress accountability as an essential component of Afghan security force development by fostering the creation of oversight mechanisms to investigate and sanction criminal misconduct. Attempts were made to shield those responsible for accountability mechanisms from political interference. ISAF also exhorted Afghan leaders to support prosecution of government officials indicted for corruption and involvement in organized crime. Another vital strand of this initiative was a coordinated effort among ISAF Regional Commands and international law enforcement agencies to arrest those responsible for the cross-border flow of insurgents, weapons, and components for interim explosive devices, as well as the pre-cursor chemicals and heroine exports that sustained the Taliban. Some of these transactions were facilitated by CPNs which also required an international response. Another source of illicit funds that flowed to insurgents with CPN complicity was US contracts with Afghan firms. Shafafiyat instigated reforms that opened the bidding process to a broader range of bidders along with the revelation of intended sub-contractors before contracts were awarded. Among the measures that were most effective were intelligence sharing and coordinated action by international law enforcement agencies such as the US Drug Enforcement Agency and the UK Serious Organized Crimes Agency against key CPN members involved in the transnational dimension of this activity. International financial sanctions were another mechanism used. The authors conclude that such international action “…became a critical way to degrade Afghanistan’s criminal networks, creating a deterrent effect that the Afghan judicial system was incapable of achieving.”[122]

 

            In evaluating the effectiveness of an international strategy, we must begin by considering what type of criminalized power structure was present when the international community intervened. In the Afghan case, unless we count the Taliban “government,” there was no legacy of governance by criminalized power structures. Thus, the criminal patronage networks that predominate today emerged on the international community’s watch as a toxic by-product of the Bonn Settlement and short-sighted policies of accommodation. Tajik commander Mohammad Qasim Fahim, Uzbek militia commander Abdul Rashid Dostum, and Herat warlord Ismail Khan, in particular, parlayed their capacity for violence into a license to loot resources of the state and to operate beyond the reach of the law. Thus what evolved after the 2001 international intervention were criminalized power structures that used violence, or the threat thereof, to obtain power while they supported the terms of the Bonn process.

The hope was that these militia commanders would cease use of violence in return for being granted access to government largesse. Although overt use of violence has temporarily been curtailed, bargains such as this that are based on patronage can only endure as long as the patron controls the resources necessary to secure fealty. This will come to an end with the 2014 presidential election, unless a stand-in for Karzai is elected. Lacking in Afghanistan are durable institutions to mediate the contest for wealth and power peacefully after 2014. Thus, the risk of a renewed civil war among competing mujahedeen factions remains a grave threat to Afghanistan’s viability along with the lack of governmental legitimacy and popular support that are essential to prevail over the Taliban. In sum, the strategy implemented in Afghanistan can only be categorized as a failure.

            Failure, however, can provide a fertile source of learning. Among the salient lessons identified by Forsberg and Sullivan are the following:

  • Anticipate and Respond Swiftly to Criminal Patronage Networks

The Afghan experience provides a surefire formula for failure: overlook the prospect that criminalized power structures are capable of emerging in the presence of a power vacuum. Next, wait for years to confront impunity until CPS have entrenched themselves in power and can simply renounce international actions against them as a violation of national sovereignty. To set the conditions for success, the international community must come prepared to create dissuasive consequences for networks exploiting their capacity for violence to capture state functions, especially if they have linkages to transnational criminal activity. This requires the authority and means to monitor the threat (including tracking financial flows), to impose costs for criminalizing the political economy (especially international law enforcement actions), and to establish mechanisms for transparency and accountability promptly.

  • Capacity Building Should be Accompanied by Strategies to Combat Capture by Criminalized Power Structures

One of the principles that should be borrowed from the development community is “Do no harm.” In an environment where criminalized power structures are present and vast sums of assistance are being expended, there is a real possibility that a substantial percentage will flow into the wrong hands. Especially perverse is the tendency for parties involved in conflict to fabricate schemes to profit mutually from it. The result is that our assistance strengthens the enemies of peace. One essential remedy is to immediately emphasize standing up transparency and accountability mechanisms for the local institutions under development. As the authors also note, “…international forces and their civilian partners must also help insulate and protect these institutions from intimidation and coercion.”[123] This is especially vital for the security forces since they are liable to be subjected to pressure for both politicization and criminalization.

 

            Among other lessons that have relevance beyond Afghanistan are the requirement to integrate military and law enforcement capabilities for the conduct of “evidence-based operations,” the value of targeting illicit revenue streams “…by tracking illicit finance, initiating targeted coercive financial actions, pursuing sanctions designations, and identifying opportunities for mutual legal assistance requests,”[124] the benefits of  “…a central, unified, interagency strategic planning body with the capacity to manage and coordinate the application of these tools and capabilities against transnational networks,”[125] and the criticality of investing in development of civil society as a safeguard against abuse of state power.

B.    Colombia: United Self-Defense Forces of Colombia (AUC)

The approach taken to end the role of paramilitary entities in Colombia’s long-standing internal conflict was atypical because it was not the product of a comprehensive peace settlement between the main protagonists (i.e., the Government of Colombia or GOC and insurgent forces, represented chiefly by the Revolutionary Armed Forces of Colombia or FARC and the Popular Army of Liberation or ELN). Rather, it was the result of a series of agreements in 2003 between paramilitary groups, primarily the United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia or AUC), and the government alone.[126] This was possible because paramilitary or “self-defense” forces had arisen with the government’s blessing in the 1960s. Case study author Jennifer Holmes offers two credible and compatible explanations for this. One is the weakness of the state and its inability to defeat the insurgency on its own. The other is favored by human rights organizations that regarded this as “…an unofficial government strategy to ‘subcontract’ out mano dura counterinsurgency in response to pressure to respect human rights.”[127] Holmes explains that as the conflict evolved “…support for paramilitaries could be found not only among landowners and the business community but also from the illicit drug sector.”[128] Paramilitary violence burgeoned as a result, and they were eventually banned in 1989; however, this did not sever the nexus between the GOC and paramilitaries.

 

            The linkage between paramilitaries and narcos certainly qualifies them as illicit, but it is the relationship with the government that defines them as part of a power structure. The most notorious illustration of this is provided by President Álvaro Uribe’s first head of the Departamento Administrativo del Servicio (DAS), Jorge Noguera. The DAS was Colombia’s intelligence agency, and Noguera headed that organization from 2002-5 during Uribe’s first term. Noguera was convicted in 2011 and sentenced to 25 years in prison for orchestrating the assassination of a prominent sociologist by a paramilitary death squad in 2004, a year after the demobilization, disarmament, and reintegration (DDR) process had begun.[129] Salvatore Mancuso, the military leader of the United Self-Defense Forces of Colombia or AUC claimed that the DAS had provided training for his cadres along with hit lists. Additionally, according to Holmes, “The deep penetration of paramilitary groups into the intelligence apparatus is further substantiated by the arrest of former intelligence chief and head of the DAS, General Miguel Maza, for the 1989 murder of the presidential candidate, Luis Carlos Galán.”[130] In 2005, two years after the DDR agreement had been reached, the parapolitica scandal erupted revealing extensive linkages between paramilitaries and members of both the executive and legislative branch. Almost half the members of the 2006-10 Congress were implicated, and as of 2013, 45 congressmen and 7 governors had been convicted of criminal affiliation with paramilitaries. Thousands of investigations are still ongoing.[131] The prosecutor general during Uribe’s first term was also under investigation for allowing paramilitary infiltration of the government and “…purposefully dismissing cases against high-ranking Colombian officials with suspected ties to the AUC.”[132]

            Owing to the compelling evidence that the nefarious linkage between the GOC and paramilitaries persisted after the DDR pact was reached, the purpose of the agreement clearly had nothing to do with expunging this illicit entity from the halls of power in Colombia. Indeed, when the pact was being negotiated in 2003 the International Crisis Group suspected that providing a “golden parachute” was the more likely motive because “…just as elements in the country’s traditional power structures may have fostered the paramilitaries’ rise, so they may be preparing to use the peace talks to cleanse them politically and thus legitimize their wealth and power.”[133] Thus the peace agreement between the GOC and paramilitaries did not overlook but rather was apparently calculated to obscure their sub rosa relationship. Given the apparent, informal purpose of the DDR agreement to provide paramilitary leaders with an avenue to “legitimize their wealth and power,” their orientation throughout the process was supportive. Even though they continued to use violence, as in the 2004 assassination of an opposition sociologist, this was done at the behest of the GOC not in opposition to it or the DDR agreement.

In evaluating the degree of success that has been attained through the GOC-paramilitary peace settlement, Holmes establishes as her metric of success “…whether or not these ties between the government and paramilitaries have been clearly broken…” Even though this was not the intended outcome of the DDR process, considerable strides have been taken toward this end: an intrepid free press has revealed the depth of the collusion between the GOC and paramilitaries, the judiciary has proven to be sufficiently autonomous to prosecute and convict scores of high-ranking government officials and investigate thousands more, the Santos administration has disbanded the rogue intelligence agency at the center of the GOC-AUC illicit structure, and a mobilized civil society has largely repudiated the unlawful role that paramilitaries played. Holmes concludes that “…many of the old illicit structures of power have been emasculated…The Santos administration continues to work to prevent a revival of the illicit ties of the past, so credit must also be given to the vibrancy of Colombia’s electoral process and the frank debate in Colombian civil society.”[134]

While the focus of this chapter was on the peace settlement between the GOC and AUC, looming in the background is the far more consequential and still unfolding peace process with the FARC and potentially the ELN. Holmes succinctly captures the implications of the unintended success that has been attained in fragmenting the GOC-AUC power structure:

Opposition from elements in the security sector to the ongoing FARC peace talks has the potential to create support for a new paramilitary wave among those who oppose FARC demobilization or peace-related land reform. There are clear fault lines within Colombian politics both in favor of and against the peace process. It was the main issue in the presidential elections, with President Santos in favor of continuing peace talks, and former President Uribe, among others, actively mobilizing against the talks.[135]

Thus, the constituency that earlier comprised the illicit GOC-AUC structure—right-wing politicians, undisciplined elements of the security apparatus, landed elites, and drug traffickers—persists, and their interests remain in alignment. While their ability to penetrate the structures of power at the national level has been substantially weakened, the same is not true in rural areas where the reach of the state is far more tenuous. It is precisely in such areas that the demobilization and reintegration of the FARC and ELN will need to play out. Whereas the orientation of the AUC was supportive toward its own DDR process, that clearly will not be the case if and when the FARC and ELN seek to reintegrate into Colombian society. Thus the unintended outcome of the DDR process for the AUC that exposed and gravely weakened their surreptitious relationship with the State was a vitally important step toward creating conditions for sustainable peace in the broader conflict. The essence of success in both peace processes may also be the same: As Holmes states in her recommendations: “When state institutions, especially the judiciary and electoral processes, coupled with the media and civil society, provide a viable partner, the appropriate strategy is to support and strengthen their capacity to confront CPS.”[136] Colombia, unlike most states emerging from protracted conflict, had the rudiments of a viable democracy already in place—at the national level. The quintessential challenge moving forward will be to extend the reach of those institutions into the countryside where the peace process with the FARC and ELN will need to be played out on far less favorable terrain. The international posture may need to be more robust in providing mentoring, monitoring and capacity building the next time around to tilt the balance against the paramilitary-local government power structures.

C.   Iraq (Maliki)

In an epilogue to the Iraq chapter on Jaish al Mahdi summarized above, the authors address the administration of Prime Minister Nouri al-Maliki (2006-14), Williams and Bisbee capture the tendency to dismiss the possibility that a government we are supporting may become so corrupt as to be a spoiler in disguise. Maliki consolidated power over the security forces in an authoritarian manner and suborned the judiciary and other nominally independent institutions that were intended to serve as a check on the abuse of power, such as the High Electoral Commission, the Central Bank of Iraq, and the Integrity Commission. In addition to governing in a sectarian manner that alienated the Sunni population, Maliki’s pervasive network of patronage hollowed out the combat capability of the Iraqi Army to such an extent that it collapsed in the face of an Islamic State of Iraq and the Levant offensive in June 2014. After international and domestic pressure forced Maliki to relinquish power, his replacement as Prime Minister, Haider al-Abadi, revealed that the Army’s ranks had been inflated with more than 50,000 ghost soldiers. This, along with Maliki’s penchant for promoting loyalists over competent professionals to command positions, contributed directly to the collapse of four of the Army’s fourteen divisions in June.[137] In the estimation of Williams and Bisbee, “Fraudulent government contracts and deceitful oversight practices have been endemic during Iraq’s reconstruction, however, the degree to which Maliki loyalists (allegedly under the direction of Maliki’s son Ahmed) are directly responsible for this corruption displays particularly egregious behaviors for a head of state…the CPS constructed under Maliki… illicitly gained wealth in order to secure and augment control of institutions of the state.”[138]

 


 

APPENDIX II: THE TOOLKIT

A.   Financial Tools, George Lopez

 

B.    Experts Panels, Alix Boucher

 

C.    International Supply Chain Controls on Looting of Natural Resources, Merriam Mashatt

 

D.   Assessment and Strategic Planning, Oscar Vera and Karmen Fields

 

E.    Mandates, Betsy Andersen

 

F.    Strategic Communications, Dana Eyre

 

G.   Governance and Economic Management Assistance Program (GEMAP), Matt Chessen and Robert Krech

 

H.   Understanding Culture, James Dorough-Lewis, Jr.

 

I.      Criminal Intelligence-led Policing, Bertram Welsing

 

J.     International Judges and Prosecutors Michael Hartmann and Agnieszka Klonowiecka

 

K.   Institutional Development of the Legal System, Mark Kroeker

 

L.    Border Police and Customs, Paul Acda

 

M.  Accountability, Andrew Michels and Tom Pope

 

N.   International Watchdog Organizations, Kristi Clough

 

O.   Community-Based Monitoring, Lorenzo Delesgues and Huma Gupta

 

P.    The Civil Society “Triangle,” Haki Abazi

 

Q.   Social Media Networks, Marcia Hartwell

 

 

TO OBTAIN THESE DRAFTS, PLEASE CONTACT THE EDITOR, MICHAEL DZIEDZIC AT:

michaeldz71@gmail.com

 



[1] United Nations, “Guidelines: Strategic Assessment,” May 2009. The Guidelines list both “underlying causes and near-term effects.” The only underlying causes listed are “unequal access to resources, poor governance, inter-ethnic strife, separatist ambitions…” While poor governance and criminal power structures are clearly related, there is no distinction made in the Guidelines between poor governance that is the result of incapacity and lack of resources versus that which is due to predatory elites who at best provide a modicum of public services to the identity group they are affiliated with. The typical strategy for poor governance is to provide funding to build government capacity. Such assistance is liable to be pilfered if the mission lacks a robust mandate for confronting the criminalized nature of the state.

[2] United Nations, “Integrated Missions Planning Process (IMPP): Guidelines Endorsed by the Secretary-General,” June 13, 2006

[3] Speaking at the National Defense University during the rollout of “Corruption Threats and International Missions: Practical Guidance for Leaders,” on September 30, 2014. 

[4] Sarah Chayes, Thieves of State: Why Corruption Threatens Global Security (New York and London: W.W. Norton, 2015) 189.

[5] Stefan Feller, “UN Police, International Crime and Terrorism,” Huffington Post, February 12, 2015. Available at http://www.huffingtonpost.com/stefan-feller/un-police-international-c_b_6670430.html

[6] If we include the collapse of the Iraqi Army in 2014 after the conclusion of the international intervention.

[7] See the discussion of “Mandates” by Elizabeth Andersen in the Toolkit chapter.

[8] “Handbook for Judicial Affairs Officers in United Nations Peacekeeping Operations,” UN Department of Peacekeeping Operations, June 2013, 28.. Available at http://www.un.org/en/peacekeeping/publications/cljas/handbook_jao.pdf

[9] Andersen, “Mandates,”.

[10] See the discussion of “International Judges and Prosecutors” by Michael Hartmann and Agnieszka Klonowiecka in the Toolkit chapter.

[11] The UNMIK model with its cadre of IJPs is illustrative since it had an unprecedented number of international staff investigated and successfully prosecuted in Kosovo for crimes of rape, corruption, gender-violence, murder, and other crimes, as UN Headquarters was willing to waive immunity and allow investigation and trial by its own IJPs.

[12] DPKO Handbook, 158.

[13] Stephen Stedman, “Spoiler Problems in Peace Processes,” International Security, Vol. 22, No. 2, Fall1997, 2.

[14] Quest for Viable Peace: International Intervention and Strategies for Conflict Transformation, eds. Jock Covey, Michael Dziedzic, and Len Hawley (Washington D. C.: US Institute of Peace, 2005).

[15] As described in the discussion of the strategy implemented in Kosovo, these are the components of a strategy of conflict transformation. Quest for Viable Peace: International Intervention and Strategies for Conflict Transformation, eds. Covey, Dziedzic, and Hawley, US Institute of Peace, 2005.

[16] See the discussion of “Panels of Experts” by Alix Boucher in the Toolkit chapter.

[17] See the discussion of the “Governance and Economic Management Assistance Program” by Matt Chessen and Robert Krech in the Toolkit chapter.

[18] These recommendations are derived from the contributions by Andrew Michels and Thomas Pope on “Accountability” and Mark Kroeker on “Institutional Development.”

[19] See DAC Guidelines and Reference Series, 58. “…reforms should seek to address issues relating both to the operational capacity of security bodies (effectiveness) and how they are governed (accountability).”

[20] Ibid.

[21] This section is derived in part from a briefing presented by Col Michael Redmond at a Command Development Seminar conducted for UN Formed Police Units commanders and coordinators at the Center of Excellence for Stability Police Units in March 2006.

[22] Owing to wide variation in the configuration of peacekeeping missions and stability operations (e.g. military commanders are sometimes subordinate to a civilian head of mission but at other times they operate independently; some missions are under UN supervision and others are hybrids or parallel missions), suggestions for a decision making architecture must remain generic.

[23] For police-led operations, the on-scene police commander should have tactical control of all personnel situated within the boundary of the police operation (Sometimes called the “Blue Box”). This might include individual military personnel temporarily assigned for the duration of the operation, such as bomb disposal specialists. Outside that boundary, the military commander should have tactical control of personnel performing supporting tasks (or the “Green Box”).The reverse would hold true for a military-led operation. A control point should be established where both military and police commanders can be co-located. See “Policy (Revised) Formed Police Units in United Nations Peacekeeping Operations United Nations, Department of Peacekeeping Operations/Department of Field Support,” Ref. 2009. 32, para 69, p.16.

[24] These recommendations derive from the contributions by Bertram Welsing on “Criminal Intelligence-led Policing” in the Toolkit chapter.

[25] “Open sources research” refers to publicly accessible data posted online and on social media channels.  Open sources data (largely published data) has always been important to the intelligence process. Today, the popularity of the internet, social media communications, and accessibility of mobile communications devices has elevated the importance “open sources research” in the intelligence process. The global popularity of social media and internet communication demands attention to this intelligence data source.           

[26] “Human resources management” refers to a series of professional actions and activities that includes the development and case management of sources and agents, protection programs, and rewards and compensation to human sources.

[27] “Technical data collection” would include the array technically possible, legally authorized, electronic data collection.

[28] The legal “support” presumed of this recommendation in fact leads and supports yet another consideration and recommendation, judicial support to the mission; legal advice, active prosecutions, and the development of sustainable local capacity.

[29] Policing the New World Disorder: Peace Operations and Public Security, Michael Dziedzic, Robert Oakley and Elliot Goldberg (Washington D.C.: National Defense University Press, 1998), pp. 8-13.

[30] The term “stability police” is a generic term for “…robust, armed police units that are capable of performing specialized law enforcement and public order functions that require disciplined group action. They are trained in and have the flexibility to use either less-than-lethal or lethal force, as circumstances dictate. They are rapidly deployable, logistically self-sustainable, and able to collaborate effectively with both the military and the police components of a peace mission.” Bridging the Public Security Gap: The Role of the Center of Excellence for Stability Police Units in Contemporary Peace Operations, Michael Dziedzic and Chris Stark, USIP PeaceBrief, June, 2006.

[31] This recommendation draws on a paper submitted by Scott Murphy, “Creation of an UN Police Equipment Block to Provide Incentives for Contributing Nations,” for Georgetown University course SEST 536 on November 19, 2011.

[32] Oscar Vera and Karmen Fields, “Bosnia: The Third Entity Movement,” 13.

[33] Ibid. 4

[34] Ibid. 7.

[35] Office of the High Representative, “Transcript of the Press Conference on the Hercegovacka Bank, May 4, 2002, at http://www.ohr.int/ohr-offices/mostar/transcripts/default.asp?content_id=7360.

[36] Center for Study of Democracy, Partner in Crime: The Risks of Symbiosis between the Security Sector and Organized Crime in Southeast Europe, 2004, p. 70.

[37] Vera and Fields, “Bosnia,” 11.

[38] Office of the High Representative, 13th Report of the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, July 5, 1999 at http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=3677

[39] Ibid. 10.

[40] The General Framework Agreement, Annex 1A, Article VI at http://www.nato.int/ifor/gfa/gfa-an1a.htm 

[41] Office of the High Representative, Decision amending the Law on the Supreme Court of the Federation, July 30, 1999

[42] Liz Barrett, “Croat spy operation revealed in Bosnia,” BBC News, December, 18, 1999. Available at http://news.bbc.co.uk/2/hi/europe/570667.stm

[43] Office of the High Representative, “Chronology/Monthly Tracker 2001,” December 31, 2001 at http://www.ohr.int/ohr-dept/presso/chronology/default.asp?content_id=5978

[44] Ibid.

[45] Vera and Fields, “Bosnia,” 12.

[46] Ibid. 15.

[47] Ibid. 13.

[48] Ibid.

[49] Ibid. 14.

[50] Transparancy International Bosnia and Herzegovina, Corruption Progressing, BiH Goes Nowhere, October 15, 2009 at http://ti-bih.org/Corruption_progressing_BiH_goes_nowhere/?lang=en

[51] Ibid. 14.

[52] U.S. Army Peacekeeping Institute, SFOR Lessons Learned in Creating a Secure Environment with Respect for the Rule of Law, May 2000.

[53] Zenglendos is a Creole term with roots dating back to the 19th century when Haitian Emperor Fautin Soulouque (1847-1858) created an early version of secret police called Zenglen. Though they evidently had a political cover, the purpose was to use violence to protect the interests of the dictator.  From these roots Haitian radio personality Sony Bastien coined the term Zenglendos to describe the bandits, robbers, and rapists who prowled the streets of Port au Prince.

[54] P. 6 of draft text.

[55] P 24 in draft.

[56] P 27 in draft.

[57] P 29 of draft.

[58] P 11 in draft.

[59] P 2 in draft.

[60] Ismail Rashid, p 3 in draft.

[61] Pp 6-7 in draft.

[62] P 10 in draft.

[63] P 12 in draft.

[64] P 22 in draft.

[65] P 15 in draft.

[66] P 16 in draft.

[67] P 1 in draft.

[68] Article IV of the Comprehensive Agreement on Human Rights stipulates that “…there must be no illegal security forces nor any clandestine security machinery. The Government of Guatemala recognizes that it has an obligation to combat any manifestation thereof.”

[69] Agreement between the United Nations and the State of Guatemala on the establishment of an International Commission Against Impunity in Guatemala ("ClCIG"),” signed December 12, 2006, Article 1. Available at http://cicig.org/uploads/documents/mandato/cicig_acuerdo_en.pdf

[70] Ibid., Article 2.

[71] David Gagne, “Guatemala Judge Selection Process Rife With Corruption,” InSight Crime, October 2, 2014. Available at

http://www.insightcrime.org/news-briefs/guatemala-fills-appellate-courts

[72] Elyssa Pachico, “Guatemalan Judge Slams Corrupt Selection Process, InSight Crime, October 7, 2014. Available at  http://www.insightcrime.org/news-briefs/guatemala-judge-slams-corrupt-selection-process  

[73] P 3 in draft.

[74] P 32 in draft.

[75] P 37 in draft.

[76] P 13 in draft.

[77] Quest for Viable Peace: International Intervention and Strategies for Conflict Transformation, eds. Covey, Dziedzic, and Hawley, US Institute of Peace, 2005.

[78] Ibid., p. 21.

[79] International Crisis Group, “The Rule of Law in Independent Kosovo,” Europe Report #204, May 19, 2010, 9.

[80] Rubin, 2000; Peters, P 82.  Note: This is footnote #15 in the draft.

[81] P. 6 in draft.

[82] P. 7 in draft.

[83] P. 6 in draft.

[84] P. 4 in draft.

[85] P. 5 in draft.

[86] P. 7 in draft.

[87] P. 5 in draft.

[88] P. 19 in draft.

[89] P. 10 in draft.

[90] P. 13 in draft.

[91] P. 18 in draft.

[92] P. 26 in draft.

[93] P. 26 in draft.

[94] P 13 in draft.

[95] P3 in draft.

[96] P 7 in draft.

[97] P 12 in draft.

[98] P 5 in draft.

[99] P 8 in draft.

[100] Marissa Cochrane, The Fragmentation of the Sadrist Movement, Iraq Report # 12, January, 2009, 16.

[101] P 7 in draft.

[102] David E. Johnson, M. Wade Markel and Brian Shannon, The 2008 Battle of Sadr City, (Santa Monica: RAND, 2011), 4.

[103] P 11 in draft.

[104] Ibid.

[105] This did not eliminate all criminally motivated elements of JAM. As Williams and Bisbee note, “many JAM-affiliated militants continued to pursue criminal and sectarian agendas with or without official sanction from organizational leadership – it does mark an important shift.” P 2 in draft.

[106] P 7 in draft.

[107] Matthew Rosenberg, “‘Malign’ Afghans Targeted,” Wall Street Journal, December 29, 2010.

[108] P 6 in draft.

[109] Ibid.

[110] P 4 in draft.

[111] P 7 in draft.

[112] P. 10 in draft.

[113] P 5 in draft.

[114] Ibid.

[115] P. 12 in draft.

[116] P. 5 in draft.

[117] P 7 in draft.

[118] P. 13 in draft.

[119] P. 14 in draft.

[120] P. 15 in draft. Thomas Schweik, “Is Afghanistan a Narco-State,” New York Times, July 27, 2008.

[121] P. 15 in draft.

[122] P. 17 in draft.

[123] P. 30 in draft.

[124] P. 29 in draft.

[125] Ibid.

[126] Presidencia de la República, Oficina Alto Comisionado para la Paz, “Colombia: Proceso de paz con las Autodefensas - Informe Ejecutivo,” June 22, 2006. Available at http://reliefweb.int/report/colombia/colombia-proceso-de-paz-con-las-autodefensas-informe-ejecutivo

[127] P 2 in draft.

[128] P. 7 in draft.

[129] Simon Romero, “Ex-Spy Chief of Colombia Is Sentenced to Prison,” New York Times, September 14, 2011. Available at  http://www.nytimes.com/2011/09/15/world/americas/jorge-noguera-convicted-in-colombia-spy-scandal.html

[130] P.17 in draft.

[131] Ibid.

[132] Sarah Kinosian, “11,179 Colombian politicians, officials, businessmen involved in parapolitics: Report,” Colombia Reports, June 7, 2012, available at

http://colombiareports.co/11179-colombian-politicians-officials-businessmen-involved-in-parapolitics-scandal-report/

[133] “Colombia: Negotiating with the Paramilitaries,” ICG Latin American Report No. 5, September 16, 2003: i.

[134] PP 21 in draft.

[135] P 20-1 in draft.

[136] P 22 in draft.

[137] Loveday Morris, “Investigation finds 50,000 ‘ghost’ soldiers in Iraqi army, prime minister says,” November 30, 2014, Washington Post, Available at http://www.washingtonpost.com/world/middle_east/investigation-finds-50000-ghost-soldiers-in-iraqi-army-prime-minister-says/2014/11/30/d8864d6c-78ab-11e4-9721-80b3d95a28a9_story.html

[138] P. 15 in draft.