IJCentral: International Justice Central

Luis Moreno-Ocampo, prosecutor for the international criminal court, on the limitations of his power and why it’s positive that the US isn’t a signatory to the Rome statute.

Follow this link to watch the video at The Guardian: http://www.guardian.co.uk/commentisfree/video/2010/sep/06/luis-moreno-ocampo-international-criminal-court

September 4, 2010 (KHARTOUM) – A prominent Sudan expert has warned the government against the consequences of failing to accept the proposal of the African Union (AU) to establish hybrid courts to adjudicate cases of crimes committed in Darfur region.

In exclusive statements to Sudan Tribune from Khartoum yesterday, Alex De Waal said that such a failure would be “foolish” and would make the Sudanese government lose support in Africa.

De Waal has also argued that the cause of justice in Darfur is “not well-served” by the International Criminal Court (ICC) and chided the ICC’s chief prosecutor, Luis-Moreno Ocampo, for seeking the arrest of Sudan’s president Omer Al-Bashir.

Alex De Waal is a British researcher and program director of the New York-based Social Science Research Council. He has authored several publications on Sudan and particularly on Darfur, including “Famine that Kills: Darfur, Sudan”, “War in Sudan: An Analysis of Conflict” and “Darfur: a short history of a long war” with Julie Flint.

He is currently serving as an adviser to the AU High-Level Panel on Darfur (AUPD), which was mandated in July 2008 by the AU’s Peace and Security Council to examine the situation in Darfur and submit recommendations on how to resolve Darfur crisis through reconciling elements of peace, justice and reconciliation. The eight-member AUPD is chaired by former South African President Thabo Mbeki.

More than a year later on October 8, 2009, the panel submitted its final report to the AU and concluded the Sudanese criminal justice response to Darfur was “ineffective and confusing” and that it “failed to obtain the confidence of the people of Darfur.”

Therefore, the panel recommended hybrid courts “constituted by judges of Sudanese and other nationalities” be established to “exercise original and appellate jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur”

However, the Sudanese government at its top level has rejected the proposal. Sudan’s 2nd Vice-President Ali Osman Taha told the AU Peace and Security Council summit in Abuja in November 2009 that the Sudanese law and the competence of its judiciary “provide the necessary framework to achieve justice.”

Later in December, president Omer Hassan Al-Bashir, who faces two warrants of arrest by the ICC for his alleged role in the Darfur conflict, said in an interview with ‘Russia Today’ TV that his country rejects the idea of foreign judges sitting on the bench for Darfur trials.

“We, at our end expressed reservation on this point [hybrid court] because we have an independent judiciary and the judicial institution has the [final] say in forming any courts inside the borders to prosecute any Sudanese [citizen]. Mbeki understands our reservations” Al-Bashir said.

But according to De Waal, members of the AUPD and its chairman “repeatedly bring up this issue with the government.” De Waal said that the AU “has given the Sudan government an opportunity for an overall political package that includes justice.”

“If the Sudan government fails to take that opportunity”, De Waal warned, “it will be foolish and it will lose a lot of the support and sympathy it may have in Africa.”

De Waal was keen to point out that the mandate of the panel is due to be up in October next month and that the panel will then have to report back to the AU.

“You must watch and see what is in that report” he told me, in an indication that the panel’s report could point to the government’s failure to comply with the panel’s recommendations.

The Mebki panel so far has appeared to have shifted focus from Darfur to the upcoming referendum in South Sudan which is part of his mandate in accordance with the AU resolution.

He has been met with a major setback during an attempt to arrange a meeting between opposition parties and the ruling National Congress Party (NCP) ahead of the elections that took place last April.

Opposition leaders later slammedMbeki saying he succumbed to pressure from the NCP and suggesting that it is in line with the AU’s supportive position of Khartoum.

De Waal has earned a reputation of being strongly opposed to the ICC’s warrant of arrest for President Al-Bashir and broadly critical of the ICC’s prosecutor Luis Moreno-Ocampo.

The International Criminal Court has issued an arrest warrant for Bashir for war crimes and genocide in Sudan’s western Darfur region during a counter-insurgency campaign.

He has consistently argued that the arrest warrant against Al-Bashir is detrimental to the cause of peace and justice in Darfur and tantamount to demanding a “regime change” in Khartoum.

On this issue, De Waal has opined the government’s failure to remedy the justice problem in Darfur is what has led to the ICC’s involvement in the case but he also raised doubts about the court’s effectiveness and the competence of its prosecutor.

“Horrendous crimes were committed in Darfur, especially during 2003-2004. The great majority of those crimes were committed by government forces or people acting on behalf of the government” he said, adding that the government “has taken no serious actions over all these years for justice and accountability, really nothing.”

“And because of that failure” he said later “that the ICC has come in to Sudan” He concluded that the government “has only itself to blame.”

However, De Waal says that the cause of justice for Darfur people “is not well served by the ICC for two reasons.”

“The first” he says “is that the ICC will only prosecute a very small number of people. It will not bring to justice more than five, six or ten people. Even if it was a well-functioning, very professional court, the majority that it would ever bring to trial would be ten or 12 people.”

Louis Moreno Ocampo is the second reason. “If the people of Darfur or Sudan think that Louis Moreno Ocampo is the man who will bring justice to Darfur, I think they are going to be disappointed because I don’t think he is very professional” he said.

“I think he [Ocampo] has made a lot of mistakes and we see the case that he has in court is failing and the way that he constructed his case against president Bashir was very poor” he added later.

In January 2009, De Waal published a critique of the ICC prosecutor’s case against Al-Bashir, excoriating the prosecutor’s application for Al-Bashir’s arrest warrant as “riddled with flaws.”

In his critique, De Waal argued that the mode of liability pursued by the prosecutor, which in Al-Bashir’s case is the indirect preparation of crimes on account of “Al-Bashir’s total control over the every relevant institution of the state”, is “neither demonstrated in the evidence presented nor supported by past patterns of action.”

De Waal said that “those who want justice for Darfur should be criticizing Moreno Ocampo. They should be saying this man is not up to the job that we want a more professional ICC.”

According to De Waal, Ocampo’s “political” choice of going after Al-Bashir is “very poor” because its result was to allow the President to “rally people on nationalism, etc.”

The Darfur conflict broke out in 2003 when rebels, belonging mostly to African ethnic groups in Darfur, staged an armed struggle against the central government of Khartoum, accusing it of neglecting the region in terms of development, wealth-sharing and representation.

According to UN estimates, the conflict has killed 300,000 people and displaced million people. The Sudanese government says the conflict has been exaggerated by Western media, putting the death toll at only 10,000.

source: Sudan Tribune

New York, US - The Hague-based International Criminal Court (ICC) has dis tributed 200,000 copies of a publication, titled ‘Understanding the ICC’, in Kenya.

It said in a statement Monday, which was made available to PANA in New York, that the publication was estimated to reach 20 million people in Kenya.

The booklet, which is circulated with one of the most popular newspapers in the country, explains the court’s mandate, structure and mode of operations.

It also answers questions frequently asked by participants during informative sessions held by court officials in Kenya.

Commenting on the booklet, ICC Registrar Silvana Arbia said ‘the court is committed to make all necessary efforts to inform the public about the court’s mand ate and work.

‘With the information presented in the booklet, I hope many Kenyans will find an swers to their questions,’ she noted.

According to her, ‘A well-informed public can contribute to ensuring lasting respect for international justice and through its enforcement, the prevention of crimes.’

The registrar had Saturday concluded a four-day official visit to Kenya, where she met relevant national authorities to discuss the operational and legal framework needed to conduct registry activities in Kenya.

source: Afrique en ligne

In a talk in Washington on Tuesday sponsored by the international arm of the US Democratic Party, Kenya’s new ambassador to the United States vigorously defended the recent visit to Nairobi by Sudan’s indicted president.

Ambassador Elkanah Odembo did not explicitly say why President Omar al-Bashir had been invited to take part in the August 27 constitution promulgation ceremony.

But the envoy justified Kenya’s willingness to let him travel unimpeded on the grounds that it conformed with Kenya’s interest in promoting stability in neighbouring Sudan.

If Kenya had arrested Mr Bashir, “Sudan would erupt in a civil war that is going to be bigger and more devastating than the civil war [that began] 20 years ago,” Ambassador Odembo declared.

“I’m willing to put my money on it.”

Kenya’s envoy, who presented his credentials to President Barack Obama six weeks ago, said “it is certainly important Sudan holds together” until southern Sudan decides in a scheduled January referendum whether to become an independent state.

“I say that as someone who condemns in the strongest possible way the crimes committed against the people of Darfur,” Mr Odembo added.

President Bashir has been charged at the International Criminal Court with war crimes arising from the Sudanese government’s actions in the country’s Darfur region.

Kenya, as a signatory to the treaty establishing the ICC, is obligated to cooperate with the court.

The country’s welcome to Mr Bashir drew criticism from President Obama and from human rights groups.

Ambassador Odembo noted on Tuesday that Kenya is the temporary home to many refugees from Darfur who have offered evidence to ICC prosecutors regarding atrocities in Darfur.

The envoy also said Kenya is playing a crucial role as guarantor of the peace agreement that put an end to the war between north and south Sudan that took an estimated two million lives.

He assured the audience at the National Democratic Institute that Kenya’s defiance of the ICC in regard to President Bashir does not suggest that Kenya will refuse to cooperate with the ICC’s investigation of those thought responsible for the post-election violence.

source: The Daily Nation

A top team of International Criminal Court officials on Wednesday met with government leaders to explore the possibility of the court setting up base in Kenya.

Among the issues discussed was according ICC judges, prosecutors and other members of staff diplomatic status.

The Rome Statute, which established the court, provides for such status to allow the court to operate efficiently.

It is expected a decision will be made by Friday

A statement by International Criminal Court registrar Silvana Arbia after the meeting read: “I met with the Cabinet committee chaired by minister (George) Saitoti to discuss the operational and legal framework that is essential for the court to conduct its work in Kenya.”

The registry is one of the four organs of the ICC and it is responsible for the non-judicial aspects of administering and servicing the court.

It is a neutral organ of the court and provides support to victims, witnesses and the defence, where necessary.

Other organs are the presidency, the court’s divisions and the office of the prosecutor.

Ms Arbia is on a four-day visit as the court prepares to deal with Kenya’s post-election violence.

Prof Saitoti, who chairs the Cabinet committee on ICC affairs, briefed the media in the absence of Ms Arbia at Harambee House.

Said the minister: “We held fruitful discussions with Ms Arbia, the ICC registrar and her team and reviewed progress made in facilitating the ICC to carry out its mandate.”

Prof Saitoti said the government had handed over all documents that had been requested by the ICC and provided security to the investigators.

Cabinet colleagues James Orengo (Lands), Otieno Kajwang’ (Immigration) and Amason Jeffa Kingi (Fisheries), who are also members of the sub-committee, attended the meeting.

Mr Orengo said Ms Arbia was pleased with the support from the government, adding the Kenya would comply with its obligations to The Hague.

“Kenya is dealing with matters relating to the ICC and we will comply. The registrar is very happy about it.”

Sources said Ms Arbia was laying ground for the final push on the investigations scheduled to be concluded in December.

source: The Daily Nation

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