IJCentral: International Justice Central

By Ambassador Tiina Intelmann*

Very soon the International Criminal Court will celebrate its 11th anniversary. By now the Court has fully established itself and is increasingly busy. It is actively seized of eight situations and is also undertaking a number of preliminary examinations. It is a good time to take another look at the Rome Statute system and to focus on some aspects of it that need special focus.

One of them is complementarity, and how states are equipped to exercise their primary jurisdiction over atrocity crimes.

According to the Preamble of the Rome Statute, the primary responsibility for investigating and prosecuting the most serious crimes falls under national jurisdictions. The International Criminal Court (ICC), as a court of last resort, acts only if the State with the primary jurisdiction over the crimes proves to be unable or unwilling genuinely to carry out the investigation or prosecution. This is known as the complementarity principle.

Complementarity is an issue to which the Assembly of States Parties (ASP) has given special attention. At the 2010 Review Conference of the Rome Statute held in Uganda, the ICC States Parties recognized the need for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. Since that time, we have been looking for avenues to work closer with the international development community, with individual countries and with civil society actors to assist states that ask for assistance in creating domestic capacity. We have also held several technical discussions between international justice practitioners and development actors.

Over years, four countries have approached the court with requests to start investigations of their situations due to the fact that all domestic avenues have failed or are non-existent. These countries are Central African Republic, Uganda, Democratic Republic of the Congo and most recently, Mali. While the Court stands ready (and was indeed created to address situations like the ones mentioned above), we need to make a collective push to have legal and judicial means in place in States Parties allowing investigation and prosecution of Rome Statute crimes. The failure of domestic systems, and thus activation of the ICC, has to be an absolute exception.

We have to make an extra effort to create a situation where all States Parties and even states outside the Rome Statute system have the domestic capacity to deal with the most heinous crimes under international law.

The international community places great importance on the rule of law and is committed to ensuring accountability for international crimes. The commitment to capacity building was affirmed in the declaration adopted by the High-level Meeting of the United Nations General Assembly on the Rule of Law at the National and International Levels which took place on 24 September 2012 in New York.

*Ambassador Tiina Intelmann is the president of the Assembly of States Parties of the International Criminal Court (ICC).

By Mariana Pena*

The Statute of the International Criminal Court (ICC or Court) applies to all persons equally without any distinction based on official capacity. When it comes to serious violations such as genocide, crimes against humanity and war crimes, no-one is exempted from prosecution. Sadly, history has shown that heads of state and other members of government have been involved in the commission of very serious crimes. Prosecution of those holding an official capacity has not been without trouble.

The first attempt to prosecute a former head of state for international crimes concerned the former Chilean president Augusto Pinochet, who was accused of crimes committed in Chile during the dictatorship in the 1970’s and 1980’s. In 1998, Pinochet was arrested in the United Kingdom following an order for extradition made by a Spanish judge. That order had been issued in proceedings instituted under extra-territorial jurisdiction principles. It was the first time in history that the former president of a country was arrested for crimes committed during this tenure. However, the extradition request was not executed as Pinochet was sent back to Chile after claiming illness. Several attempts were made to prosecute him once back in Chile. He died, however in 2006 before the conclusion of any those proceedings, and a final judgment on his liability could not be reached.

Former presidents have also been called to respond for international crimes before international tribunals. Slodoban Milosevic, President of Serbia, was indicted by the International Tribunal for the Former Yugoslavia (ICTY) in 1999. He was the first-ever president to be charged by an international tribunal. He was arrested and handed over to the ICTY in 2001 (when he was no longer president), but died in 2006 before his trial had been completed and a verdict had been given. Charles Taylor, President of Liberia, was charged by the Special Court for Sierra Leone (Special Court) in 2003 for his alleged involvement in the 1991-2002 Sierra Leonean war. His trial was completed in 2011. He has been found guilty of war crimes and crimes against humanity. The case is currently before the Appeals Chamber of that Special Court.

At the ICC, the world’s permanent international criminal court, Jean-Pierre Bemba, former vice-president of the DRC is currently undergoing trial for crimes committed in neighboring Central African Republic. His trial will soon come to an end and a judgment could be expected several months thereafter. In addition, Omar Al-Bashir, President of Sudan, was the first-ever acting president to be charged with international crimes by the ICC. Al-Bashir has been sought since 2009 for his role regarding the commission of serious crimes Sudan’s Darfur region. He remains a fugitive and has repeatedly defied the Court. He has made official visit to the territory of African countries, including ICC States Parties like Kenya and Chad, who have failed to arrest him. Al-Bashir was re-elected in 2010 in a contested election involving fraud allegations, becoming the first head of state to be re-elected while facing charges at the ICC.

More recently, the ICC issued an arrest warrant for Laurent Gbagbo, former president of Côte d’Ivoire, who is suspected of having committed crimes during the post-election violence in Côte d’Ivoire between December 2010 and April 2011. He has been arrested and handed over to the Court. A confirmation of charges hearing was held in February 2013 and judges will decide in the coming months whether he must stand trial.

Although some of those mentioned above were indicted while they were still in office, those who have stood trial or otherwise faced proceedings have done so after stepping down. Indictment, particularly when a warrant for arrest is also issued, have often helped increase pressure, prompting resignation of those holding an official capacity, and contributing to galvanizing efforts for arrest and surrender.

The Kenya situation presents a somehow different, very unusual and unique situation.  Uhuru Kenyatta and William Ruto are both charged with crimes against humanity committed during the 2007/2008 post-election violence in Kenya. Their trials are set to start in May and July 2013 respectively. During the March 4, 2013 elections, they were elected president and deputy president respectively. Following petitions which contested the elections process, the Kenya’s Supreme Court concluded end of March that the elections had been conducted in a fair manner. That paved the way for Kenyatta and Ruto’s swearing-in on April 9, 2013.

It is worth recalling that Kenyatta and Ruto stood on different sides during the 2007 elections. While Kenyatta had then supported Mwai Kibaki’s Party for National Union (PNU), Ruto had instead backed Raila Odinga’s Orange Democratic Movement (ODM). Kenyatta and Ruto have been called to respond before the ICC for allegedly mobilizing men within their ethnic groups to attack perceive supporters of the opposing party. Despite having been indicted by the ICC, Kenyatta and Ruto continued to play a prominent role in Kenya politics over the past five years. Both were seen as likely presidential candidates in 2011-2012. In a political move to win votes and beat another strong candidate, Raila Odinga, Kenyatta and Ruto came together in a coalition (the Jubilee Coalition).

It is the first time in history that the people of a country democratically elect to the highest state office two individuals who are accused of very serious acts and who are due to stand trial before an international criminal court. While acknowledging that Kenyatta and Ruto are today innocent and will remain so until proven guilty, the election of individuals against whom so serious accusations have been made nonetheless begs the inevitable question: why would the people of Kenya do that?

Traditionally, serious accusations have resulted in the isolation of political leaders. In Kenya, that has led to their election as president and deputy president. This seems at odds not only with the moral question whether those who are suspected of crimes against humanity should run a country, but also with practical matters including their capacity to do so while standing trial in The Hague. That did not seem important for those who opted to make Kenyatta and Ruto the next president and deputy president of Kenya.
An immediate and easy explanation to why Kenyatta and Ruto won the presidential election is that Kenyans vote along tribal lines, and that they did so during the March 4, 2013 elections. The message that we receive is that tribal belonging is so strong that it can override criminal accusations. It is fair to note as well that the ICC was used by Kenyatta and Ruto in their campaign to portray themselves as victims of attempts of domination and neo-colonisation by the West, an argument that resonates well with Kenyans. Kenyatta himself stated in the run-up to the elections that the elections would be “a referendum on the ICC.”

The Court, for its part, has rightly emphasized that the elections constitute a political process which is distinct from the purely judicial proceedings before the ICC. Yet, can the Court now ignore that 50.07% of the Kenya people disregarded criminal charges? What message does that send to the ICC? The Kenyan people had been very supportive of the Court when it started its investigation. A plain reading of the elections results would suggest that Kenyans may not be as supportive of the Court any longer. However, it would be unfair to jump to such a conclusion without making a more in-depth analysis, given that these are undoubtedly complex processes. Indeed, many factors, including turn-out, tribal belonging, alternative candidates, and the various parties’ and coalition’s campaigns, undoubtedly played a role in the final electoral outcome. Nevertheless, one cannot ignore the message expressed by the Kenyan people. Their choice gives us reasons to believe that Kenyans have a strange relationship with justice, possibly because in their experience justice and corruption often overlap. The election results also confirm the certainly overriding power of politics over justice in Kenya.

A range of questions inevitably arise regarding any possible impact of the election results on the trials and/or of the trials on Kenyatta’s and Ruto’s capacity to rule the country. As for the latter point, a decision as to whether the accused can participate in the trials via video-link is due to be taken soon. In principle, presence in person is required. Who is going to run the country if both the president and his deputy are in The Hague? The reality of two accused becoming president and deputy president of a country has been largely ignored in the proceedings. Will the judges now weigh that in when making their decision on presence at trial? Should they? Or should they only base their decision on a bare interpretation of the rules?

As far as the question whether the election of Kenyatta and Ruto will impact the trials, the ICC has stated that there is no reason for the proceedings to be affected. The ICC’s decision not to take a position on Kenyan politics and to maintain its neutrality and independence appears fair. Yet, holding that there is absolutely no influence, at the very least on a practical level, appears unrealistic. There is also the question as to whether the Office of the Prosecutor had prepared to prosecute the president and deputy president of Kenya. The investigation has been characterized by multiple allegations of insufficient cooperation, serious security threats, witness tampering and witnesses’ reluctance to testify. It would not be surprising if obstacles increased after the accused are sworn in president and deputy president of the country.

In sum, Kenya politics and the unfolding of the Kenya cases before the ICC raise a broad range of questions regarding the choices of the Kenyan people, and the future of the country and its leaders. Those questions go to the core of Kenyans’ notion of justice and the ICC’s capacity to try the president and deputy president of a country. As Kenyatta and Ruto are sworn president and deputy president, and as the ICC cases progress toward trial, some of those questions may be answered and many more are likely to arise.

* Mariana Pena is an independent expert on international justice. This article is based exclusively on open sources.

Laurent Gbagbo made major headlines the last few weeks with the opening of an important hearing in his case before the ICC but little was said about what victims can hope for now that Côte d’Ivoire has joined the Court.

Since 2002, Côte d’Ivoire has suffered years of political crisis and violence which reached a boiling point with the November 2010 presidential election. While incumbent President Laurent Gbagbo was proclaimed the winner, his opponent Alassane Ouattara vehemently disputed the result, claimed victory and was recognized as the legitimate winner by the UN and the international community. Gbagbo’s refusal to cede power to what he considered a fraudulent election led to a military offensive against the capital Abidjan by Ouattara’s forces, ending with the capture of Gbagbo on 11 April 2011. Eight months later, Gbagbo was transferred to the International Criminal Court (ICC) in The Hague where he is currently held and waiting for a decision from the Court on whether he will go on trial.

Gbagbo is accused of being an indirect co-perpetrator of crimes against humanity allegedly committed in Côte d’Ivoire between December 2010 and April 2011. He is the first former head of state detained at the ICC. Several human rights reports have indicated that both Gbagbo’s and Ouattara’s forces have committed serious human rights violations, including rape, looting and destruction of homes, torture and murder, among others. In Abidjan, Gbagbo’s troops reportedly attacked and killed civilians identified or perceived to be Ouattara supporters and in the north-western part of the country where Ouattara’s forces started their military offensive, they reportedly killed civilians identified or perceived to be Gbagbo supporters. Around 3,000 civilians died and over one million fled during the post-election violence.

Difficult path to reconciliation

Côte d’Ivoire is trying to recover from years of political crisis and instability and reconcile a population that is still strongly divided. The wounds are still fresh and the path to reconciliation may be very difficult. Although Gbagbo is accused of serious crimes by the ICC prosecutor, he remains very popular in Côte d’Ivoire and many still consider him their president. The opening of his confirmation of charges hearing on 19 February was attended by a delegation of pro-Gbagbo supporters which was widely covered by national media. Additionally, the ICC has so far only issued two arrest warrants for crimes against humanity in Côte d’Ivoire, one for Laurent Gbagbo and another for former first lady Simone Gbagbo, who is currently detained in Côte d’Ivoire. Ivorian and international human rights organizations warned that the ICC could be blamed for applying victor’s justice if only presumed pro-Gbagbo perpetrators are prosecuted.

The interest of victims

So much is said about Laurent Gbagbo and the ICC, but what about the victims of the post-election violence? What about the victims of other crimes committed since 2002? Although the first indictments are related to the post-election violence, the ICC investigation also covers the years 2002-2010, meaning that the Court could seek to bring to justice perpetrators of crimes allegedly committed during that period of time. This could allow more victims to participate in ICC proceedings, but since in practice not all victims will be able to seek justice and reparation at the Court, it is crucial that national courts have the capacity to prosecute international crimes and provide relief to victims.

Côte d’Ivoire and the ICC

Côte d’Ivoire made a major step forward in this regard when it ratified the Rome Statute on 15 February 2013. Interestingly, the government of then-president Gbagbo was the one that recognized the jurisdiction of the ICC on the territory of Côte d’Ivoire in April 2003 under Article 12 of the Rome Statute – the ICC’s founding treaty. In 2010, President Ouattara reaffirmed his government’s acceptance of ICC jurisdiction, and after a series of legal and constitutional hurdles, Côte d’Ivoire became the latest African country to join the ICC as a state party to the Rome Statute. Now that it has done so, Côte d’Ivoire has a chance to demonstrate its commitment to the fight against impunity. It should work toward implementing the Rome Statute into domestic law as soon as possible so that national courts are equipped to prosecute all the perpetrators of the crimes committed since 2002. As a state party to the Court, Côte d’Ivoire has the obligation to cooperate with the Court in arresting and sending any ICC suspect to The Hague, including Simone Gbagbo, the ICC’s first female indictee.

Côte d’Ivoire is still in the middle of a healing process that may be very long, especially if the ICC focuses its investigation on only one side of the conflict.  But by joining the ICC and opening the door to strengthening the national judicial system, Côte d’Ivoire will get one step closer to helping bring justice to victims and stop the culture of impunity.

By Francis Dako, Africa coordinator and Linda Gueye, head of Communications at the Coalition for the International Criminal Court

by Mariana Rodriguez Pareja*

According to reports published Monday at the Sudanese Media Center, International Criminal Court (ICC) indictee President Omar Al-Bashir will be visiting Chad this coming weekend to participate in the Summit of the Community of Sahel-Saharan States. The same article, adds that after this visit, the Sudanese President will be visiting Libya to participate in the celebrations of the 17 February Revolution.

If this information were true, then, Chad would not be complying—for the third time—with its obligation to enforce the outstanding arrests warrants issued by the ICC against President Omar Al Bashir. The Sudanese president is subject to two arrest warrants for atrocities committed against his own people, in Darfur.

The first arrest warrant was issued in March 2009 on charges of war crimes and crimes against humanity. The second—issued in July 2010—was on charges of genocide. According to the latest report by ICC Prosecutor Fatou Bensouda to the UN Security Council (UNSC), Darfur’s civilian population continues to be targeted by government forces, with the ongoing widespread occurrence of sexual and gender based violence, crimes against human rights defenders, civil society members and community leaders.

The ICC has been involved in the Darfur situation, following upon a formal request of the UNSC since 2005. According to the letter of the Resolution 1593/95, the situation in Sudan was a “threat to international peace and security.” Therefore, States members to the UN ought to demonstrate their respect for the UNSC acting under Chapter VII of the UN Charter and comply with the obligation to cooperate fully with the ICC.

Furthermore, Chad as a state party to the ICC has the obligation to cooperate with the Court. Mostly given the fact that the Court has no police to enforce its decisions and it relies on States to help in the arrest of persons whom arrest warrants have been issued. Therefore, cooperation from States is crucial: in case Bashir steps a foot in Chad, the country should execute the arrest warrant and arrest the Sudanese President immediately.

Sadly, this would not be the first time Al-Bashir visits a state party since he has been indicted by the ICC for hideous crimes: he visited Chad twice (in 2010 and in 2011). He also visited other States Parties that also failed in their obligations: Djibouti (2011), Kenya (2010) and Malawi (2011).

After he paid his second visit to Chad in 2011, the ICC decided that the country had not met “its obligation to fully cooperate with the court by failing to arrest and surrender Sudanese president Omar al-Bashir during his visit”. Following its decision, the ICC Pre-Trial Chamber 1 referred the matter to the UNSC and to the Assembly of States Parties to the Rome Statue, the governing body of the Court.

“By allowing Al Bashir to visit, the Chadian government has again violated its obligations under the Rome Statute to execute the ICC’s arrest warrants,” said Stephen Lamony, Senior Adviser to the NGO Coalition for the International Criminal Court—“If Al Bashir does enter the Chadian territory, the United Nations Security Council and the Assembly of States Parties should act promptly take the measures they deem appropriate to ensure full cooperation with the ICC”.

Hosting Bashir is being accomplice to a genocidal regime that continues to kill and rape its own population with total impunity. The conflict has already affected the lives of over 2.5 million people.

“The fact that Al Bashir can repeatedly travel to Chad without ever worrying about being arrested is another insult to Darfuri victims,” stated Linda Gueye, Head of Communications at the Coalition. “Al Bashir will once again benefit from media attention while victims will continue to suffer in silence”.

If we, as international community are committed to stop Bashir, stop the slaughter of civilians, the rape and the starvation, then, political reasons should not continue to interfere with but should respect and implement judicial decisions, such as the one taken by the ICC when it issued two arrest warrants for Bashir.

Chad should arrest Bashir.

It was the first state to harbor Bashir after the first arrest warrant was issued. Now, it has the chance to change history and become the country that arrested and surrendered Bashir to the ICC.

*Mariana is a human rights lawyer and blogger. @maritaerrepe

Source: The Huffington Post World

By Mark Kersten

Last week, Fatou Bensouda, the chief Prosecutor of the International Criminal Court warned Mali’s government that she could investigate alleged atrocities committed by the government’s military forces. And it’s a good thing she did. While the ICC may have little-to-no deterrent effect on the Malian rebels, it might just be able to shape the behaviour of the Malian government.

Amidst rumours that Mali government forces have perpetrated atrocities in central Mali, Bensouda released a curt but strong statement which declared:

  My Office is aware of reports that Malian forces may have committed abuses in recent days, in central Mali. I urge the Malian authorities to put an immediate stop to the alleged abuses and on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.

Bensouda’s statement was a stern reminder to the Mali government: just because Mali referred the situation to the Court does not mean that its forces will escape investigation (and possibly prosecution). A war crime is a war crime is a war crime, irrespective of who perpetrates it. The question is: will Mali take heed of the Prosecutor’s warning?

The notion that the ICC can deter crimes is simple enough. The international justice and human rights community argue that international criminal tribunals have the power to change the behaviour of both current perpetrators of atrocities and would-be perpetrators. The fear of being indicted, it is argued, prevents individuals from continuing – or beginning – to commit international crimes.

The problem with deterrence is just as simple: there is very little evidence for it. This isn’t merely an empirical question. After all, the decision not to do something is difficult, if not impossible, to measure. In general, there is good reason to be skeptical of the claims that the ICC can deter the commission of atrocities. The results are mixed at best (see, for example, here and here).

Still, the landscape of deterrence is perhaps less bleak than the most fervent of critics would suggest. This is particularly true if we look in the direction of actors who aren’t targeted by the ICC rather than those who are.

Take the Ugandan case, for example. It would be virtually impossible to argue that the ICC’s intervention into the war between Joseph Kony’s Lords Resistance Army (LRA) and the Government of Uganda has deterred the LRA from committing atrocities. At best, it helped ‘export’ the conflict to neighbouring Democratic Republic of Congo, Central African Republic and South Sudan. However, it is plausible to argue that the ICC has had positive effects on the behaviour of the Ugandan government and, in particular, the Uganda People’s Defence Force (UPDF). Where they might have been more brutal in dealing with domestic unrest and protests, the government has not committed serious breaches of international criminal law. It seems likely that they have been spurred by periodic statements by the ICC that the Office of the Prosecutor could, at any time, open an investigation into allegations of new crimes.

That an ICC intervention would affect governments like Uganda or Mali in such a way is unsurprising. In both cases, the governments referred their internal strife to the Court. As I have previously argued, that comes with numerous pitfalls. The ICC risks being instrumentalized by the referring government which may ‘use’ the Court to delegitimize their adversaries whilst drumming up international support for their own role in the conflict. But a side-product of this dynamic is that, while states seek to wield the ICC against their rebellious adversaries, they clearly do not want to become the Court’s next target. To come under the suspicion of the ICC would tarnish their perceived legitimacy and international standing. Aware that they are now under the watchful eyes of the ICC’s Prosecutor – not to mention the international community – brutal tactics which may amount to war crimes or crimes against humanity, are likely be discouraged.

There are signs that, buoyed by France’s military intervention, the worst of the violence in Mali soon be over. However, fears of vengeance remain widespread. According to the BBC, the Tuareg peoples of Northern Mali, for example, are “lying low”, fearful of reprisals against them. This is an important reminder that the conclusion of conflict rarely marks the end of mass human rights abuses and crimes. As a result, it is as important now as ever that the ICC make clear that it can and will investigate any crimes committed in Mali, irrespective of who commits them. With her statement, the Prosecutor has done just that. The Mali government would be wise to take heed.

Source: Justice in Conflict

By Mariana Rodriguez Pareja

The conflict in Darfur is not new, and despite some international attention and efforts by human rights activists to stop this ongoing (and apparently never-ending) conflict, it has ruined the lives of over a half million people, with thousands of women being raped, widespread and systematic violence taking place in nearly every form imaginable.

The ICC—complying with the Resolution 1593 of the UNSC in 2005—began the investigation in the region of Darfur and decided to issue five arrest warrants against those who bear the greatest responsibility. Two arrest warrants were issued for the President of the country Omer Hassan al-Bashir, one for his interior, now defense minister Abdel-Rahim Mohamed Hussein, one for the-now Governor of South Kordofan Ahmad Harun and one for Ali Kushayb. All of them remain at large.

The response from the Sudanese government is total rejection of the Court, with officials regularly firing off false accusations to the now former Prosecutor Luis Moreno Ocampo and even to States who would talk about the apprehension of the war criminals.

Just a few days ago, Radio Dabanga reported that, according to eyewitness, Ali Kushayb has started to mobilize new people in Taham and Umm Nunu, on the border between West and South Darfur.

So, it seems the Janjaweed commander is back to what he does best: recruiting militias in order to train them to commit international crimes against civilian populations.

Ali Mohamed Ali Abdel-Rahman or Ali Kushayb, also known as “The Colonel of Colonels” and “Chief of the Religious Combatants” is a Janjaweed commander who has fought alongside Sudanese government forces in the Mukjar/Wadi Saleh area in West Darfur since 2003. He has been indicted for 50 counts, including 22 counts of crimes against humanity and 28 counts of war crimes. For those who are not familiar with what these crimes entail, they include assassinations, rapes and outrages upon the personal dignity of women and girls, and the forced displacement of people, most of them committed during attacks against four towns and villages, namely Kodoom, Bindisi, Mukjar and Arawala. These crimes were committed against civilians primarily from the Fur, Zaghawa and Masalit populations. They likely represent only a small sample of Kushayb’s activities.

His indictment came two years after the referral by the UN Security Council to the ICC in 2005. In 2008, the Sudanese authorities allegedly arrested Kushayb and released him afterwards, saying that he would “be held accountable for his crimes before a local court.” That never happened. Eyewitnesses in Khartoum told the press that Kushayb was never locked up and even it was reported that his arrest was a publicity stunt to distract attention. Now, this man is openly recruiting militias in the Sudan with total impunity.

The international community must insist on the execution of his arrest warrant, issued in 2007, and must insist that the Government of the Sudan hand him over to the Court for a fair trial. It is the least the international community can do for the reportedly near 500,000 people killed in Darfur, and the millions displaced.

Source: The Huffington Post

By Mariana Rodriguez Pareja*

January 20, 2013 - The conflict in Darfur has ruined the lives of over half a million people. This violence has had the complicit support of a government, which in theory is in charge of protecting its own population, that does the opposite.

The UNSC asked the International Criminal Court (ICC) to intervene and investigate the situation in 2005.

The President of the country Omer Hassan al-Bashir has been indicted as one of the most responsible for the situation in Darfur, as well as his defense minister Abdel-Rahim Mohamed Hussein, now Governor of South Kordofan Ahmad Haroun and militia leader Ali Kushayb.

None of them has been held accountable at the ICC or in any court in the Sudan.

The case of Haroun is particularly outrageous; he has served in senior official capacities for more than a decade. As a state minister for the Interior from 2003 to 2005 he was allegedly in charge of the management of the “Darfur Security Desk” thereby coordinating the different bodies involved in the counter-insurgency, including the Police, Sudan Armed Forces (SAF), National Security and Intelligence Service (NISS) and the notorious militia known as the Janjaweed. It is impossible that he was unaware of the situation in Darfur.

Former ICC Prosecutor Ocampo emphasized repeatedly that evidence gathered by his office demonstrated that Haroun had the individual criminal intent to commit crimes, as well as the resulting knowledge of the attacks against civilian population, rapes and pillaging of towns, and that in many cases, he encouraged the perpetration of such horrendous crimes.

As a coordinator of logistics, bringing money and weapons and words of encouragement to Darfur’s triggermen, Haroun was the spider at the center of a web large enough to entrap millions of his fellow countrymen.

When tribal elders in Darfur approached him as representative of the government and implored him to address violence against civilians, he allegedly called them his enemies and informed them that he had come to Darfur to destroy them. The joke is that this man was appointed Minister of State for Humanitarian Affairs, following his stint at the Ministry of the Interior.

In 2007, the ICC Judges issued an arrest warrant for Haroun for 42 counts for war crimes and crimes against humanity.

Even though, he has not - or at least not that I know of- set foot outside the country since the issuance of his arrest warrant, he continues to hold power within the regime. He is now the governor of South Kordofan, the province that lies to the west of Darfur and to the north of South Sudan, encompassing key border regions like Abyei whose status remain unresolved, and over which Haroun has allegedly recruited tribal militias to try and ensure through violence that Abyei and its oil-rich fields remain part of the Sudan and do not effectively exercise referendum under the Comprehensive Peace Agreement (CPA), which could result in it joining the South.

The result of this militarization is that the region is now one of the most unstable and restive parts of the country, the scene of fighting between the Sudanese army and Sudan People Liberation North (SPLM-N) which is part of the Sudan Revolutionary Front (SRF) coalition of insurgent groups, and the subject of belated hang-wringing by international observers, who ignored or downplayed the threat that Haroun posed to the stability of the region.

Alleged human rights violations occur in that province on a daily basis with total impunity. Victims in the Nuba Mountains in South Kordofan remember Haroun all too well from the 1990s, when he was known as the Butcher of the Nuba.

The international community has explored the idea of curbing “non-essential contacts” with individuals like Haroun, but it raises the inevitable question, whether any contacts can truly be called essential. The message the Sudan has received is to make Haroun essential to the work of the UN: he was in charge of overseeing the deployment of African Union-United Nations mission in Darfur (UNAMID).

And we end up with the spectacle of Haroun transported by a UN helicopter to meetings that could very well have been linked to the militarization of Abyei that has taken place on his watch. The UN acknowledged this transport only when the photos came to light. It is acknowledged in UN corridors that Haroun has become a daily fixture in the UN calendar, and that the UN has come to rely on Haroun’s support in South Kordofan, a man one NGO representative argued had been scared straight. This argument comes less frequently, with the rising violence in Abyei.

The video of Haroun in South Kordofan’s capital, exhorting government forces to take no prisoners, is a strong indicator that Haroun has indeed not been scared straight, but continues to operate from the same playbook he has used throughout his government service.

We must insist on the execution of his ICC arrest warrant: the price of ensuring impunity for Haroun and others like him is too high.

Source: The Sudan Tribune

*Mariana Rodriguez Pareja is a Human Rights Lawyer @maritaerrepe

By Mariana Rodriguez Pareja*

The conflict in the Western Sudanese region of Darfur has been ongoing for more than 10 years now and despite all the efforts undertaken, it does not seem to be getting any better in terms of ending the violence and achieving any kind of accountability for crimes committed. Those who are indicted as the most responsible for the international criminal violations in Darfur by the International Criminal Court (ICC) remain at large and in the past years, we have seen President Omar Al Bashir being invited to and participating in different events, even, regrettably, on the territory of ICC States Parties.

But, first things first: the ICC has been involved in the Darfur situation, following upon a formal request of the UN Security Council, since 2005; it has issued five arrest warrants against four individuals, including the Head of State Omar Al Bashir, Abdel Raheem Hussein, Ahmad Harun, and Ali Kushayb. All of them remain at large and the refusal of the Sudanese government to cooperate with the Court has been consistent since that date. Plus, according to the latest report by ICC Prosecutor Fatou Bensouda, Darfur’s civilian population continues to be targeted by government forces, with the ongoing widespread occurrence of sexual and gender based violence, crimes against human rights defenders, civil society members and community leaders. The list of crimes goes on and on.

Just to give you an idea, the United Nations and other credible observers estimate that the wave of violence in the region may have killed as many as 500,000 people. We, as an international community continue to fail the victims.

Despite that horrific number and the lack of any investigations at the local level, since he was indicted, Bashir visited Kenya, Ethiopia, China, Egypt, Chad, Malawi, Qatar, Libya, Saudi Arabia and Iraq; and was invited to several other countries, including Venezuela, Turkey and Peru. Some of those countries are ICC States Parties, and therefore have the obligation to comply with the provisions of the Rome Statute. They should have arrested Bashir and transferred him to The Hague.

It is also important to note that when was invited to both Venezuela and Turkey, governments and activists from all over the world asked these States not to host Bashir. He ended up cancelling both visits.

But that did not happen when he was invited to Peru in 2012 for the Third Summit for South American and Arab countries. When I reached out to local authorities, they all said that for “protocol reasons, they ‘believed’ President al-Bashir was invited” and later suggested that the fact that Bashir was invited was irrelevant “because in the end, Bashir did not come to Peru”.

This position was and is shocking: justifying an invitation for protocol and political reasons of an individual indicted for genocide, crimes against humanity, and war crimes is not acceptable from any country. Hosting Bashir is being accomplice to a genocidal regime that continues to kill and rape its own population. If the international community is committed to stopping Bashir, stopping the slaughter of civilians, the rape and the starvation, then, political reasons should not interfere with but should respect and implement judicial decisions, such as the one taken by the ICC when it issued two arrest warrants for Bashir.

And this reminds me of a very important ruling from the Inter-American Court of Human Rights, in which Brazilian Judge Antônio A. Cançado Trindade reminded us all that it shall never be forgotten that the State was originally conceived for the realization of the common good: the State exists for the human being, and not vice versa. I always try to keep this in mind when I try to understand some situations; especially, the one in the Sudan.

Source: The Huffington Post

By Mark Kersten*

The new year has brought some big news for the relationship between the ICC and the United States. According to the great folks at the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), on January 3 Congress passed an expansion of the Rewards for Justice Program. The program will now cover individuals indicted by the International Criminal Court (ICC).

The enhancement of the rewards program will mean that financial rewards can be dolled out by the American government to anyone who helps in the achieving ”the arrest or conviction in any country, or the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.’” According to the legislation (full text of original bill here), the expansion of the program was done in order to “target other individuals indicted by international, hybrid, or mixed tribunals for genocide, war crimes, or crimes against humanity.”

This amendment of the Rewards for Justice Program certainly marks an impressive victory for the Office of Global Criminal Justice in the U.S. Department of State, led by Ambassador Stephen Rapp. Rapp and his team were able to effectively use notorious international criminals, including Joseph Kony and Bosco Ntaganda, as ‘poster boys’ for the legislation. They also had the benefit of stick-handling through a political landscape where fervent anti-ICC sentiment has largely withered.

The extension of the Rewards for Justice Programme, of course, also marks an important new development in the dramatic relationship between the US and the ICC. I have argued previously that the enhancement of the program should be seen as a positive development. Still, it is worth noting that political limitations were placed on the new legislation. According to AMICC,

“Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.”

The inclusion of the first limitation could be particularly problematic given that it has the potential to introduce a significant measure of political selectivity on how the program operates. However, it isn’t clear how this requirement will work in practice. It would appear that that the State Department simply needs to provide Congress with an explanation as to why any given arrest or conviction that qualifies for a reward would serve the interests of the US. That is a very broad requirement and, importantly, does not necessarily mean that Congress could subsequently reject any reward. In other words, the provision may simply amount to a political courtesy rather than an invitation for Congress’ intrusion into the decision-making of the program.

The reference to the American Servicemembers’ Protection Act (also known as the ‘Hague Invasion Act’) was included in the legislation from the get-go. The bill concludes by declaring that “[n]othing in this Act shall be construed as authorizing the use of activity precluded under the American Servicemembers’ Protection Act of 2002″. In practice, this confirms that, despite the enhancement of the Rewards for Justice Program to include individuals wanted by international criminal tribunals, the program will not cover American citizens. This was to be expected. While the American Servicemembers’ Protection Act is certainly unfortunate, it remains law in the US. The Rewards for Justice Program would not have been passed if it contradicted or omitted the Act.

As with everything in the tumultuous – but improving – relationship between the ICC and the US, it remains to be seen how the expansion of the Rewards for Justice Program plays out. The potential of political selectivity tainting the Court’s independence and legitimacy is still very real. But overall, the enhancement of the rewards program to include ICC indictees would seem to be a positive development.

Source: Justice in Conflict

On January 3, the House passed and sent to the President S.2318, The Department of State Rewards Program Update and Technical Corrections Act of 2012. He has said that he will sign it, thus bringing it into law, thereby expanding Rewards for Justice. Behind its dry and technical-sounding title lie provisions which move Congress and the Administration perceptibly further toward a closer general relationship with the International Criminal Court.

The original law began in 1984 and was then directed at promoting arrests in conventional international organized crime such as drug trafficking, and of terrorists. However, in the last two years, Ambassador-at-Large for Global Criminal Justice Stephen Rapp has led a State Department effort to expand the law to include the atrocity criminals whom the ICC tries. The bill which became S.2318 was introduced in the House by Congressman Ed Royce (R-CA), who is chairman of the House Committee on Foreign Affairs in the new Congress. It had 57 bipartisan sponsors and passed the House in July. Senator Kerry, chairman of the Senate Foreign Relations Committee, introduced S.2138 itself in the Senate which passed it on December 20.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to ... target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal ... of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

The worldwide attention to the crimes of Joseph Kony, leader of the Lord’s Resistance Army, and the previous individual laws referring to the ICC’s work on specific cases were among the elements of the impetus for this new law. A future post will analyze the trends behind its passage, and its importance for our current advocacy and our strategy for the future.
 

Source: AMICC