IJCentral: International Justice Central

NAIROBI — Former UN chief Kofi Annan said on Sunday Kenya should clarify its position on the International Criminal Court after it last week hosted Sudan’s Omar al-Bashir, wanted for genocide.

“Like many, I was surprised by the presence of President Al-Bashir of Sudan in Nairobi for the promulgation of Kenya?s new constitution,” Annan said in a statement in his capacity as chair of the Panel of Eminent African Personalities.

“Kenya has specific obligations as a signatory of the Rome statute and is also cooperating with the International Criminal Court on investigations relating to the 2007/8 election violence,” said the text issued in Nairobi.

“In the circumstances, the government should clarify its position and reaffirm its cooperation with and commitment to the ICC,” said Annan, whose team brokered a power-sharing deal between Kenyan President Mwai Kabaki and his former foe turned prime minister Raila Odinga after the 2008 violence.

Kenya on Friday defended its invitation to Bashir despite his indictment by the International Criminal Court for genocide and war crimes.

“President Bashir was here today because he was invited by the government,” Foreign Affairs Minister Moses Wetangula told reporters.

“We invited all neighbours and he is a neighbour,” Wetangula said. “There are no apologies to make about anybody we invited ... because I am sure we are enhancing peace and security and stability of this region more than anything else,” he added.

The post-election violence, in which some 1,500 people were killed, was Kenya’s worst since independence and seriously tarnished the country’s image.

source: AFP

The International Criminal Court is asking the U.N. Security Council to take action against Kenya for hosting Sudan’s president in defiance of international warrants for his arrest.

ICC judges in The Hague said Friday Kenya has a “clear obligation” as a member of the court to cooperate in enforcing its arrest warrants for Sudanese President Omar al-Bashir.

Mr. Bashir was one of several regional leaders who traveled to Nairobi for Friday’s ceremonial signing of the new Kenyan constitution.  Kenyan Foreign Minister Moses Wetangula says Mr. Bashir was invited because he is the head of a friendly neighboring state.

Mr. Bashir is wanted by the ICC on charges of war crimes, crimes against humanity and genocide in Sudan’s Darfur region, where the government has been been fighting rebels since 2003.  The United Nations estimates the conflict has killed 300,000 people.

The ICC said it is reporting Kenya to the U.N. Security Council in order for the Council to “take any measure it may deem appropriate.”

U.S. President Barack Obama said Friday he is “disappointed” that Kenya hosted President Bashir, and he urged Nairobi to “honor its commitments to the ICC and to international justice.”

The ICC issued its first arrest warrant against Mr. Bashir in 2009.  Since then, he has visited several regional states that are not full members of the court, including Egypt, Eritrea, Ethiopia, Libya, Qatar and Saudi Arabia.

Kenya is the second full ICC member to invite Mr. Bashir in defiance of the warrants.  Chad became the first when it hosted the Sudanese president earlier this year.

Rights activists say Kenya’s hosting of Mr. Bashir raises questions about its commitment to cooperate with ICC investigations of the country’s post-election violence of 2007 to 2008.
ICC prosecutor Luis Moreno Ocampo is investigating allegations of crimes against humanity committed during the unrest and expects to charge several suspects by the end of this year.

source: Voice of America

President Omar Hassan al-Bashir of Sudan arrived in Kenya on Friday to participate in a ceremony inaugurating the country’s newly minted constitution, flouting international demands for his arrest on genocide charges.

Mr. Bashir faces two arrest warrants: one issued in July by the International Criminal Court in The Hague on three counts of genocide and one from March 2009 for war crimes and crime against humanity. In theory the warrants could be enforced by any of the court’s member countries, which include Kenya.

The charges relate to the conflict in the western Darfur region of Sudan, where an estimated 300,000 people have died and more than two million have been uprooted by almost a decade of fighting between the government and rebels. Mr. Bashir denies the charges.

News reports said Mr. Bashir was escorted into Uhuru Park in the Kenyan capital, Nairobi, by the minister of tourism, Najib Balala, to attend the ceremony marking the adoption of the new constitution, supposed to hasten democratic reform in Kenya, a nation generally depicted as pro-Western.

The role of the international court is particularly sensitive in Kenya because last April its judges authorized formal criminal investigations of the political leaders who organized the violence that convulsed the country after its disputed election in 2007.

Kenya’s political leaders had earlier refused to set up a special tribunal to prosecute those responsible for the killings, saying Kenya’s existing courts could handle the cases.

Under the Rome Statute establishing the court in 2002, which Kenya has ratified, member states are supposed to cooperate with the court, which has no means of enforcing its warrants. Nonetheless, Mr. Bashir traveled last month to Chad — also a member state of the international court — without being arrested.

The African Union, the continent’s main representative group, has criticized the warrant and urged that it be suspended.

The readiness of President Mwai Kibaki to receive Mr. Bashir drew strong criticism from Human Rights Watch, a rights advocacy group based in New York.

“Kenya will forever tarnish the celebration of its long-awaited constitution if it welcomes an international fugitive to the festivities,” said Elise Keppler, senior counsel in the International Justice Program at Human Rights Watch in a statement on Thursday. “Even worse, hosting al-Bashir would throw into question Kenya’s commitment to cooperate with the I.C.C. in its Kenyan investigation.”

“Whether Kenya allows a suspected war criminal into Kenya is a test of the government’s commitment to a new chapter in ensuring justice for atrocities,” Ms. Keppler said. “The Kenyan government should stand with victims, not those accused of horrible crimes, by barring al-Bashir from Kenya or arresting him.”

The international warrants for his arrest have largely restricted Mr. Bashir’s travels to friendly countries in Africa and the Middle East that have resisted Western pressure to do the court’s bidding.

The celebration of Kenya’s new constitution, written to alleviate longstanding problems hindering good government for years, came after voters approved the document with overwhelming enthusiasm in a referendum earlier this month. It has been billed a potential turning point Kenya’s postcolonial history, addressing issues that have haunted the country since independence from Britain in 1963.

The constitution was drawn up after disputed elections in 2007 led to ethnically driven clashes that killed more than 1,000 people.

source: New York Times

Last week’s Weekly Standard featured a long cover essay on the International Criminal Court by Jeremy Rabkin, a George Mason legal scholar and long-time court critic. The hook was the conference earlier this summer in Kampala, Uganda during which the court’s members defined aggression and gave the court jurisdiction over that crime. The Rome Statute that created the court listed aggression as a core crime, but the absence of a definition meant that it couldn’t be prosecuted.

At Kampala, the court’s members finally settled on a definition that draws heavily on the UN Charter and decades-old UN General Assembly resolutions. To put it mildly, Rabkin does not see this breakthrough as positive. Endowing an international court with the power to prosecute leaders for aggression, he argues, “implies the most fundamental change in the structure of international affairs since 1945.” He chides the Obama administration for acquiescing to that change.

Rabkin constructs a good case that the definition adopted by the court is tougher on states than non-state actors, including terrorist networks. He also convincingly demonstrates that all sorts of potentially useful interventions might fall under the definition, including humanitarian missions and strikes against terrorist cells hiding in third states. Identifying aggression requires assessing the justice of the underlying cause.  It’s for that reason that several key human rights organizations agree that this is a dead end for the court. Human Rights Watch has argued that tackling the highly politicized question could “diminish the court’s role—and perceptions of that role—as an impartial judicial arbiter of international criminal law.”)

Rabkin wants to argue that the newly defined crime will be used as a stick to beat the United States and key allies. As he picks his way through the convoluted compromise reached at Kampala, however, he seems to realize that the United States—not a member of the court—is actually quite well insulated. Jurisdiction over aggression doesn’t become operable until 2017; member states have the right to opt out; and only nationals of states that have fully accepted the court’s jurisdiction over the crime can be charged. It would be much, much harder to charge an American leader with aggression than with the other crimes covered by the court.

At this point, the essay stops being about aggression and becomes a broad and by now familiar attack on the court as a naive and dangerous attempt to control force through law. The ICC, Rabkin argues, “ratifies a new expectation that military policy can, indeed, be settled by lawyers.” At the heart of Rabkin’s alarm is a judgment that the court will chill the necessary activities of countries like the United States while having little effect on rogues and despots. It’s an argument that has some merit in the abstract. Liberal democracies almost certainly will take more seriously the possibility of being found in violation of international law. But it’s well past time to stop arguing about the ICC in the abstract. We now have almost a decade of experience with the court. What does it tell us?

The evidence on whether the court constrains bad actors is mixed, but Rabkin does not appear inclined to fairly consider it. He minimizes the degree to which an ICC indictment has constrained Sudanese president Omar Al-Bashir’s movements. Because Bashir received a formal invitation to the climate change summit in Copenhagen, Rabkin implies that the indicted president travels the world freely. In fact, it was clear to Bashir that he would be arrested immediately if he accepted. Bashir will likely never again set foot in Europe, the United States, or Latin America. More broadly, there is some evidence that the court has modified the behavior of miltia commanders and national military leaders.  Rabkin doesn’t even consider it.   

On the other side of the equation, Rabkin presents zero evidence that the court’s existence has prevented the United States from taking the steps it deems necessary to defend itself. In fact, he inadvertently produces evidence to the contrary. He worries that the ongoing flurry of drone strikes in Pakistan might be deemed aggression. But they might also expose U.S. commanders and leaders to charges of war crimes, and yet the Obama administration has embraced them. What steps exactly would the United States have taken post-9/11 that it did not for fear of the ICC? And if the Obama administration—with all its reverence for international law—appears not to be chilled by the ICC, what future American administration will be?

For all his talk of how the world actually works, Rabkin is curiously resistant to examining the record of the last decade.  Reading the essay, you would have no idea that in April 2002 he warned that indictments against Americans and Israelis were imminent:

“We can’t now say for sure what will happen at The Hague. For example, we can’t know for sure whether the first indictments of Israelis will come down in July or August. We can’t know whether Americans will be indicted as early as September or only in November. But we know the court will be a major disappointment to its sponsors if it has not produced some resounding indictments by Christmas.”

Almost ten years into the court’s existence—and despite the invasions of Afghanistan and Iraq, drone strikes and commando raids around the world, and accusations of abuse at Bagram, Abu Ghraib, Guantanamo, and assorted “black” sites—the prosecutor hasn’t pursued a solitary American or American ally. Instead, he has focused on mass killings, rapes, and recruitment of child soldiers in Congo, Uganda, Sudan, and Kenya.

It turns out that Rabkin is not very interested in what the court actually does. He’s most interested in what it symbolizes. Perhaps for that reason, he has a very hard time imagining that it could actually be run by serious, professional lawyers and judges rather than ideologues.

source: Foreign Policy

Foreign Minister Dr. Ahmed Shaheed has said that he hopes that the next cabinet meeting will discuss on joining the International Criminal Court (ICS).

Speaking to Miadhu, Dr. Shaheed said that after legal consultations with Attorney General (AG) it has been sent for approval to the cabinet ministers’ commission.

He also stated that once Maldives joins ICS all cases of violation of Human Rights will be referred to ICS.

Mentioning some of the gross violations of human rights that occurred in Maldives, he said include the killing of 17 prisoners in a gun shoot.

Dr. Shaheed also said that Maldivian prisons are known for its “tradition” of torturing prisoners.

According to constitution Maldives can join ICS only after the approval of the Peoples’ Majlis.

As of August 2010, 113 countries have joined the court, including nearly all of Europe and South America, and roughly half the countries in Africa. The Seychelles and Saint Lucia will become the 112th and 113th states parties on 1 November 2010; the Seychelles ratified the Statute on 10 August 2010, and on 18 August 2010, Saint Lucia delivered its instrument of ratification of the Rome Statute to the UN Secretary General.

source: Miadhu News

From the CICC:

“Global NGO Coalition Welcomes Saint Lucia as 113th State Party to the Rome Statute: CICC Says CARICOM Member States are one step closer to fully embracing the new system of International Justice which they helped spearhead,” CICC Press Release, 18 August 2010

“On 18 August 2010, Saint Lucia deposited its instrument of ratification of the Rome Statute of the International Criminal Court (ICC) at the UN Headquarters, becoming the 113th State Party to the ICC Treaty.

The Coalition for the International Criminal Court (CICC) — a civil society network of 2,500 organizations in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity — commends Saint Lucia for its decision to join 112 other nations around the world, including fellow Caribbean Community members Antigua and Barbuda, Barbados, Belize, Dominica, Guyana, St. Vincent and the Grenadines, St. Kitts and Nevis, Suriname, Trinidad and Tobago, and neighboring Dominican Republic, as State Parties to the ICC.

Caribbean states played a key role in the creation and establishment of the ICC. In 1989, Trinidad and Tobago, led by then-Prime Minister A.N.R. Robinson, submitted a new agenda item for consideration to the United Nations’ 44th General Assembly on the establishment of an international criminal court. By the end of that year, the motion – which was championed by a number of countries, including all CARICOM member states – propelled its way through the UN system and resulted in a consensus resolution that called for the creation of an international criminal court. This brazen move helped establish the blueprint of what is now successfully referred to as the new international justice architecture.

The CICC and its members have been advocating for Saint Lucia’s ratification since 2005, when they first conducted an advocacy mission to the country to meet with government authorities, NGOs, and the press to raise awareness on the importance of becoming parties to the ICC.

‘Civil society organizations in St. Lucia have actively participated in workshops, panel discussions and other outreach activities which have been organized to generate understanding on the importance of ratification of the Rome Statute. Those activities have gone a long way in generating support from citizens and in creating awareness of the valuable role played by the ICC in the promotion of the rule of law and the quest to ensure that impunity does not prevail,’ said Flavia Cherry, CICC Focal Point and Director of CAFRA in St. Lucia. ‘By ratifying the Rome Statute, St. Lucia has also become a party to one of the most powerful instruments for protecting women’s rights and advancing gender justice. Hopefully this important step will also influence our national and regional efforts.’

‘The CICC strongly believes that St. Lucia’s ratification will help tilt the scales in favor of the ICC in the Caribbean and serve as a motivation for the remaining CARICOM members to ratify the Rome Statute. Full endorsement by all CARICOM states will demonstrate, once again, the Caribbean region’s strong support to the fight against impunity,’ said Tanya Karanasios, CICC Program Director.

Today’s ratification by St. Lucia leaves The Bahamas, Grenada, Jamaica and Haiti as the remaining Caribbean states that have yet to embrace the Rome Statute. With this important step, St. Lucia has adopted an additional instrument designed to foster accountability and joins the growing community of nations around the world that have embraced the Rome Statute system.

As proven by his article on Omar al-Bashir, Luis Moreno-Ocampo, fails to understand that prosecutors are there to prosecute – not judge

After more than seven years as prosecutor at the international criminal court – with no convictions, or even completed trials – Luis Moreno-Ocampo still does not understand that it is the job of a prosecutor to bring charges, and the job of a court to decide whether or not the defendant is guilty.

We saw this from Moreno-Ocampo’s article for the Guardian last month about the president of Sudan, Omar al-Bashir. Although the prosecutor said that Bashir had “officially denied the genocide, the rapes, the camp conditions and his responsibility for them”, Moreno-Ocampo alleged that “Bashir’s forces continue to use different weapons to commit genocide”. Except that “alleged” was not a word he used.

Moreno-Ocampo really ought to know better. In May, judges at the court expressed “the strongest disapproval” of a “misleading and inaccurate” media interview given by one of his three deputies. Béatrice Le Fraper du Hellen was found to have spoken about another case “in a manner that is prejudicial to the ongoing proceedings”. The judges deprecated remarks that “seriously intruded” on their own role. Within three weeks she had left the court and her post remains vacant.

Le Fraper du Hellen had given an interview to a website devoted to the trial of the alleged Congolese warlord Thomas Lubanga. In it, Moreno-Ocampo’s deputy described her boss as “a very accurate and fair prosecutor” and said of the defendant: “Mr Lubanga is going away for a long time.”

The court let Le Fraper du Hellen off with a caution, adding that “if objectionable public statements of this kind are repeated” it would “not hesitate to take appropriate action against the party responsible”.

That ruling was cited at the end of last month in a submission by lawyers for two Sudanese groups opposed to Bashir’s arrest. Sir Geoffrey Nice QC and Rodney Dixon asked the court to review Moreno-Ocampo’s remarks, arguing that the Guardian article might make it more difficult for the court to “render dispassionate adjudication”.

This submission was rejected as inadmissible by a judge on 6 August. But there has been no ruling yet on a separate complaint filed by a Quebec-based lawyer appointed by the court to represent Bashir’s interests.

Michelyne St-Laurent argued that Moreno-Ocampo’s comments were even more serious than those his deputy had made in the Lubanga case. St-Laurent was “shocked by their falsity, both in fact and law”. They made a fair trial impossible.

Moreno-Ocampo had led people to believe that Bashir was guilty of genocide, the lawyer said, denying the defendant’s presumption of innocence. In her view, the prosecutor had stirred up hatred and invited the Sudanese people to stage a revolt against their head of state.

St-Laurent also accused Moreno-Ocampo of breaching his oath of impartiality, threatening peace efforts in Sudan and undermining the credibility of the court. She asked the court to condemn the prosecutor’s article and take “all appropriate measures” against him.

If Moreno-Ocampo had spent less time grandstanding and more time in court, he might have concluded his first case by now. Instead, three judges ordered an immediate halt to Lubanga’s trial on 8 July, declaring it an abuse of the process of the court and deciding on 15 July that the defendant had to be released. The order was suspended pending the prosecutor’s inevitable appeal.

What persuaded the judges, headed by Sir Adrian Fulford, to take this radical step? It was because the prosecutor had failed to comply with repeated orders to give defence lawyers the name of an intermediary who had assisted the prosecution by liaising with witnesses. Some intermediaries are alleged to have helped witnesses fabricate statements.

Protective measures for the intermediary were a matter for the judges, they said. “The prosecutor now claims a separate authority which can defeat the orders of the court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.”

Even if the prosecutor’s appeal is successful, he faces a fine or suspension for non-compliance with the court’s orders. Swapping places with Lubanga in the dock might finally help Moreno-Ocampo to understand that it’s for prosecutors to prosecute and judges to judge.

source: The Guardian

The drums of war against Iran in response to its nuclear program are getting ever louder, with headlines in Western media adopting a tone increasingly similar to those heard in the period leading up to the 2003 invasion of Iraq.

The prototypical example of such incendiary rhetoric is none other than the “Point of No Return”—a provocative article recently published by the national correspondent of Atlantic magazine, Jeffrey Goldberg.

The underlying objective of Goldberg’s war serenade appears to be aimed at implanting in popular consciousness the belief that military confrontation with Iran is inevitable as the only ‘real’ option left to effectively neutralize Iran’s ‘nuclear threat’ (see a contrario a detailed reply to Goldberg’s piece: “A Campaign for War with Iran Begins” written by Trita Parsi, an expert on US-Iranian relations and the recipient of the 2010 Grawemeyer Award for Ideas Improving World Order).

This precarious line of reasoning is being successfully propagated, generating receptive listeners, notwithstanding warnings by experts that war with Iran would be “disastrous” and its ” consequences [...] so serious that they should not be encouraged in any shape or form.”

Nonetheless, the US and Israel, in particular the latter, continue to declare that all options are on the table. Indeed, Israel’s skirmishes with Hezbollah in Lebanon in 2006, and subsequently with Hamas in Gaza, both perceived as Iranian proxies along Israel’s borders, together lend support to the views of certain analysts that such military moves are both geopolitical messages of strength to Iran, and strategically consistent with Israel preparing the groundwork for potential confrontation with the country.

The US, Israel, and the West at large should seek to avoid war with Iran over the nuclear question. Such a war will have perilous consequences. Apart from the crushing blow that would be inflicted on the Iranian people’s indigenous calls for democracy and civil liberties, military confrontation in response to Iran’s nuclear program will surely result in great casualties on all sides, regional blowback and significant radicalization of Iranian domestic forces - progressive and otherwise - in support of the very nuclear option it would seek to prevent.

Further, as war is subject to strategic quantum physics, such a war, even if successfully waged from a military stand point, would - in time - likely generate unintended and unpredictable consequences. In the timeless and sagacious words of Benjamin Disraeli, “[w]ar is never a solution; it is an aggravation.” In short, the diplomatic process must prevail.

Meanwhile, suspicions over Iranian intentions in advancing with the country’s nuclear program prevail. Tehran, on the other hand, vigorously maintains that as a signatory to the Nuclear Non-Proliferation Treaty the country is exercising its legal right to peaceful nuclear energy. The call to advance with the country’s nuclear program, which the Iranian authorities assert is for civilian purposes only, reaches across political party lines in Tehran.

The fact remains that while Barack Obama’s Presidency affords reasonable hope for more tactful American diplomacy, no apparent solution is in sight, and when opportunities have been presented to assuage the crisis -the nuclear fuel-swap deal brokered by Brazil and Turkey comes to mind- they have been hastily squandered.

Diplomatic efforts ranging from the 2004 Paris Agreement to Security Council referrals and ensuing sanctions have equally failed to generate the desired dividends from Tehran. Ironically, these sanctions, it has been argued, have only strengthened the incumbent government in Tehran and served as grounds to further “suppress the opposition.”

To be sure, increasing sanctions coupled with a record of reliance on aggressive language, inflexible positions and the overhanging threat of war have only served to toughen Iranian resolve in pushing ahead with the nuclear program.

We must observe frankly that the current diplomatic deadlock is in desperate need of imaginative terms. In a recent policy report published in July, the Oxford Research Group in warning against a military response to Iran’s nuclear program concludes by stating that: “[h]owever difficult, other ways must be found to resolve the Iranian nuclear crisis.”

So is there low-hanging fruit to be found?

Given that Iran has expressed interest in the International Criminal Court (ICC) - the country played an enthusiastic role in the negotiations of the Rome Statute ,the Court’s founding treaty - one ostensible solution to defuse the crisis would be to explore Iran’s ratification of the Rome Statute of the ICC as part of the new round of nuclear negotiations with Tehran.

The ICC, based in The Hague, is the first permanent international court with jurisdiction to hold individuals - including heads of states - criminally responsible for genocide, crimes against humanity, war crimes and indeed crime of aggression.

Based on the existing evidence, the International Atomic Energy Agency (IAEA) has to date maintained that Iran’s nuclear program remains within the boundaries of peaceful civilian purposes, even if questions concerning a potential military dimension of the Iranian program remain unresolved, given that full cooperation from the Iranian authorities suffered a setback after the country’s referral to the Security Council in 2006 (UN SC Resolution 1696) and the ensuing sanctions.

It follows that, at this stage, strictly speaking, the nuclear crisis is centered on the hypothetical threat of Iran’s eventual acquisition of nuclear weapons and, in particular, the subsequent hypothetical use of such weapons.

On this logic, Iran’s proprio motu ratification of the Rome Statute, as part of the nuclear negotiations could potentially be just the deal-clincher to defuse the crisis, break the impasse and avert a war with ripple effects that would likely spread well beyond the immediate Middle East.

ICC ratification would not only clarify Iranian intentions - the purported nucleus of this escalating conflict -, but would also present a clear disincentive for potential malfeasance and concomitant legal accountability in the event of violations of the crimes falling within the Court’s jurisdiction. In short, the trust-building dividend offered by Iran’s ratification, while certainly not a panacea, is well worth further exploration in ongoing diplomatic dialogue.

Iran has signed the Rome Statute but has not yet ratified the treaty. The country could be swayed and would do well to do so based primarily on the sour lessons of the bloody eight-year Iran-Iraq war (1980-88), where it became the victim of Saddam Hussein’s aggression, as well as of the regular violation of the laws and customs of war by the Iraqi army. That war issued in hundreds of thousands of Iranian casualties. Iran never had the benefit of international legal recourse - something never lost on Iranians.

Furthermore, the country’s turbulent geopolitical reality and a history of foreign intrusions and outside threats lend support to the possibility that Iranians could in fact look upon ICC ratification favorably.

In October 1998, Dr. Saeid Mirzaei Yengejeh, Representative of the Islamic Republic of Iran before the Sixth Committee on the Establishment of an International Criminal Court in New York, said the following:

“The delegation of the Islamic Republic of Iran was among 160 delegations participating in the Diplomatic Conference on the Establishment of an International Criminal Court, and endeavoured to the best of its ability for the successful conclusion of the Conference and the adoption of the Statute of the International Criminal Court on July 17, 1998. By the adoption of the ICC Statute the international community has laid down another milestone, at the turn of century, towards achieving peace and justice - two indivisible components of a global society.”
Similar sentiments have been echoed by other senior Iranians officials. In June 2010 for instance, Iran sent a delegation to the ICC’s first Review Conference in Kampala, Uganda, where the country “[a]s a victim of an act of aggression in the 20th century”, expressed its support for the Court.

So clearly, while Iran has not yet ratified the Rome Statute, holding out with, among others, the US and Israel, Iranian interest in the Court exists, and pragmatic voices within the establishment could be open to the formula proposed.

Giving added support to the above proposal are the following points:

1. Ratification would build much needed confidence and clear the air of ‘unknown’ Iranian intentions.

In 2009, Mohammad El-Baradei, former Director General of the IAEA, at the World Economic Forum in Davos, publicly stated that the international community’s anxieties about Iran’s nuclear program stem primarily from uncertainty regarding Iran’s future intentions.

Indeed, this suspicion is ‘the stated’ driving force behind placing Iran under sanctions or calling for a military response.

By subjecting itself to the legal mandate of the ICC, Iran would have the opportunity to demonstrate that if in fact it has nothing to hide and that its nuclear program is transparent, peaceful and for civilian purposes only and in turn, call for the immediate lifting of sanctions.

Further, by so doing, the argument of those lobbying for war against the country would be seriously undermined.

2. Ratification could have a deterrent or disciplining effect on Iran’s behavior and that of the US and Israel - the two other major state stakeholders - preventing the incidence of a destabilizing war and preserving territorial integrity.

3. Ratification would facilitate the reach of the Court and provide legal recourse for all sides to the dispute in the case of violations of the crimes falling within the ambit of the Court’s jurisdiction.

4. To date, Tehran’s reservations regarding ratification, and generally those emanating from the Middle East, have been predicated for the most part on misconceptions of the Court’s legal machinery, jurisdiction and independence.

When these are properly understood, Tehran’s views on ratification would likely be increasingly favorable.

5. A government’s raison d’être is to protect and advance the interests and well-being of all citizens of the country it serves. Against the background of post-presidential election violence of 2009 in Iran, proposing and then ratifying the Rome Statute can serve as a bona fide attempt at national reconciliation by Tehran, and at ensuring that the crimes witnessed in the post election violence are not repeated in the future.

Unless Article 12.3 of the Statute is invoked by Iran itself, as a rule, the Court’s jurisdiction does not apply retroactively and will only apply to crimes committed after the date of ratification by the country.

Ratification would also require the eventual adaptation of domestic laws to human rights standards enshrined in the ICC Statute - naturally, a positive consequence of ratification for human rights development in the country.

6. Iranian authorities’ concerns that the Court has no judges trained in Islamic jurisprudence are moot to the extent that a judge’s religious background has no real bearing on how the law is applied at the ICC, due to the operation of Article 21 of the Rome Statute and its hierarchy of applicable law. (Note that, in any event, a state can nominate its own candidates for election as ICC judges only if it has ratified the Rome Statute to begin with).

To be sure, many Islamic states with Islamic constitutions, like the Islamic Republic of Afghanistan, have already ratified the Rome Statute.

Further to point no. 6, the larger issue of unfounded criticism that the Rome Statute has a particular ‘Western’ bias needs to be addressed head on. International humanitarian law and international criminal law work in concert to deter and minimize the occurrence of hostilities and the suffering caused by war, as well as to hold accountable those responsible for the commission of the most serious crimes of concern to the international community. The wrath of war neither spares nor is limited to race, sex, religion or regional alliance. It does not discriminate between East, West, North or South. Its misery on mankind has universal application, as do the laws that have been created to bring method to the madness of war.

Indeed, Islamic scholars will confirm that, under Islamic law, countless provisions exist to deal with unacceptable conduct during hostilities. The claim, therefore, that certain provisions of the Rome Statute may not be compatible with the strict application of Islamic law (Shari’a) - entrenched formally in Iran’s legal system since the 1979 Revolution - and that the country cannot, as a consequence, ratify the Statute overshoots gravely. This is all the more true when, as mentioned, numerous State Parties of the ICC have Islamic constitutions and Islam as their official religion or as the religion of the majority of their population.

Rigid Iranian insistence on its sui generis Islamic character as a pretext for non-ratification of the Rome Statute, as against the current 112 State Parties of the Court, would seem to condemn that country to a future that is inward-looking and divorced from an increasingly interconnected international community.

Moreover, apart from being the benefactor of the Cyrus Cylinder, considered the first charter of human rights in recorded history, Iran is a founding member of the UN and the signatory to countless international covenants, including the International Covenant on Civil and Political Rights and Convention on the Rights of the Child.

In 1968, the country hosted the twentieth anniversary of the Universal Declaration of Human Rights in Tehran, not least because Iranian diplomats (Fereiydoun Hoveyda, former Ambassador of Iran to the UN) were involved in the drafting of the Declaration itself. It would seem perfectly reasonable to hold that the universal values of respect and protection for human rights as enshrined in the Rome Statute are not only not inconsistent with Shari’a principles, but rather very much consonant with the country’s multiethnic, multi-religious age old heritage.

Henry A. Kissinger astutely stated in a July 2006 Washington Post column:

“A modern, strong, peaceful Iran could become a pillar of stability and progress in the [Middle East] region. This cannot happen unless Iran’s leaders decide whether they are representing a cause or a nation - whether their basic motivation is crusading or international cooperation [...]”
In the current context, with the potentially positive effects ratification could have on the nuclear crisis, failing to ratify the Rome Statute as part of nuclear negotiations on shakable grounds of cultural relativism could well be a serious missed opportunity for Iran and Iranians, the West and all parties genuinely in search of a peaceable solution to the present diplomatic impasse.

As part of the nuclear negotiations, Iran should place this proposal on the table as soon as possible. In any event, should the country be on the verge of being subjected to aggression, it should swiftly move to trigger ICC ratification and publicly pronounce its intention to do so.

It is hoped that diplomacy through bona fide negotiations and innovative thinking will untangle this proverbial knot.

This piece is a slightly modified version of the original published by Global Brief magazine.

The views expressed in this article have been provided in the author’s personal capacity, and do not necessarily reflect the views of the ICC.

source: Huffington Post

In those long ago days when American policymakers and pundits fought tenaciously over the International Criminal Court and whether it posed a threat to American soldiers and politicians, one recurring theme was the power of the court’s prosecutor. John Bolton, Henry Kissinger and others warned of a roaming, restless, and very likely anti-American prosecutor with essentially unlimited power. Court advocates responded, in part, that the Rome Statute imposes substantial checks on the prosecutor, including the requirement that indictments be approved by a panel of judges. The court’s critics were not buying it, to say the least.

Those debates are no longer hypothetical, and the evidence suggests that the ICC judges are not afraid to corral the prosecutor when they think he’s gone too far. The trial against Congolese warlord Thomas Lubanga has featured a series of clashes between the judges and the prosecutor’s office. In the latest round, the judges ordered the prisoner freed because of a dispute over evidence and witnesses (that order has been suspended while it’s on appeal). If the Lubanga case ends in a dismissal, it will be a black eye for prosecutor Luis Moreno-Ocampo. But it might just help convince some skeptics that the judges won’t be pushovers.

source: Foreign Policy

International Criminal Court prosecutor Luis Moreno-Ocampo has supported an application by victims participating in the Thomas Lubanga war crimes trial to take part in the appeal against his release.

In an August 6, 2010 filing, the prosecutor asked appeals judges to grant all four applications by victims’ lawyers to participate in the appeal proceedings, including any oral hearings that may be held.

Mr. Moreno-Ocampo suggested that victims’ lawyers should file their views and concerns in writing, and then prosecutors and the defense would respond to them. Moreover, the prosecutor proposed that victims’ lawyers should file one consolidated document containing their joint submissions for each of the appeal proceedings.

The prosecution has filed two appeals: one against an order to stay the proceedings and another against the order for Mr. Lubanga’s release. Trial judges on July 14, 2010 ordered that Mr. Lubanga should be freed subsequent to the imposition of a stay of proceedings a week earlier. Following the prosecution’s appeals, the former Congolese rebel leader will remain in detention until the appeals chamber makes a ruling.

Mr. Lubanga’s attorneys have told appeals judges that they do not intend to respond to the applications for victims to participate in the appeal proceedings. The judges are yet to make a ruling on the matter. Equally, the date for the start of the appeal proceedings is yet to be announced.

Mr. Moreno-Ocampo said in his filing that “the prosecution considers that the issues in this appeal plainly affect the personal interests of the victims. The decision to stay the proceedings has brought this case to a halt, directly impacting on the victims’ ability to present their interests.” Besides, the appeals chamber had previously ruled that the personal interests of victims were affected by issues arising out of an appeal regarding the release of the accused, he said.

Victims participating in Mr. Lubanga’s trial have been allowed to question defense and prosecution witnesses whose testimonies they felt directly affected their interests. Three of the 103 victims taking part in the trial also gave testimony in court.

However, Mr. Lubanga’s defense has been critical of the role victims have played in the trial, charging that they have attempted to be prosecutors too, often taking witnesses through the same questioning routine already covered by prosecutors. This, according to the defense, has subjected these witnesses to needless repeat questioning and in the process, added to the length of the trial. Mr. Lubanga has been in ICC detention since March 2006. His trial started in January last year.

Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo, which used child soldiers in inter-ethnic fighting in the Congo ’s Ituri Province . Prosecutors also charge that during 2002 and 2003, the UPC used hundreds of young children – some as young as 11 years – to kill, pillage, and rape.

Victims’ lawyers contend that all articles and rules governing victim participation in the proceedings before the court indicate that this participation is possible at all stages, including interlocutory appeals. In a July 26, 2010 application, Luc Walleyn, who represents 24 victims, contended that the victims considered that they had a personal interest in the proceedings, particularly because “what is at issue is not interim release under the supervision of the court, but unconditional release.”

“The unconditional release of the accused could have real repercussions for the safety of the victims participating in the proceedings where their identity is known to the accused, particularly for those who had agreed to give evidence for the prosecution,” Mr. Walleyn argued.

The prosecution has, in its appeal, claimed that the order by trial judges for a stay of proceedings was erroneous and excessive. While disputing the grounds on which judges based their decision, the prosecutor also contends that trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

source: The Lubanga Trial