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

GUANTANAMO BAY, Cuba — The U.S. has been working with the Sudanese government to repatriate detainees from Guantanamo Bay, according to evidence presented Wednesday in the case of a Sudanese prisoner.

A military commission recommended late Wednesday that the prisoner, former al Qaeda cook Ibrahim al-Qosi, receive a 14-year sentence, but his actual sentence is likely to be much shorter because of a separate plea bargain, officials said.

After his sentence, he is set to be repatriated to Sudan, joining nine other Sudanese Guantanamo detainees sent home there, officials said.

The U.S. talks with Sudan suggest that the goal of closing Guantanamo may sometimes conflict with Washington’s other priorities.

The International Criminal Court, with U.S. assent, has issued an arrest warrant against Sudanese President Omar al-Bashir and accused him of genocide.

Seeking to assure the commission that Mr. Qosi wouldn’t threaten the U.S. once repatriated, Maj. Todd Pierce, one of his military defense attorneys, introduced correspondence from the Sudanese government promising to keep the former cook under strict watch.

In a document transmitted via the U.S. Embassy in Khartoum, the Sudanese National Intelligence and Security Service said it would put Mr. Qosi in mandatory “rehabilitation,” monitor his phone calls and email, and deploy “informants” to ensure he “no longer [adheres] to a radical ideology.” The agency said its program is “85% effective.”

In a letter addressed to Secretary of State Hillary Rodham Clinton, Sudanese Foreign Minister Deng Alor Kuol praised “the positive engagement of the Obama administration” and added that “Sudan is ready to cooperate with President [Barack] Obama in his effort to close down the Guantanamo facility” by accepting additional detainees.

The Bashir regime has been waging a war in the country’s Darfur region, and in 2005, the United Nations Security Council referred the case to the International Criminal Court. Starting in 2007, the ICC began issuing arrest warrants for Mr. Bashir and several of his confederates. In February, the ICC added genocide to the allegations against Mr. Bashir.

Mr. Bashir has rejected the charges and refused to surrender to the ICC.

State Department spokesman P.J. Crowley noted that the nine ex-detainees now in Sudan were sent there by the Bush administration. He said the U.S. has “principled engagement” with Sudan, but that engagement doesn’t include Mr. Bashir. The U.S. wants Mr. Bashir to cooperate with the International Criminal Court, Mr. Crowley said.

Mr. Qosi, about 50 years old, was captured in Afghanistan in the weeks following the 2001 U.S.-led invasion. He was one of four Guantanamo detainees the Bush administration selected to inaugurate its military commissions plan in 2004, but those trials bogged down amid legal challenges and internal disarray

Military prosecutors initially described Mr. Qosi as the “deputy chief financial officer” of an al Qaeda front company who funneled money to the terrorist network’s operations and “signed checks on behalf of Osama bin Laden.”

When the Bush administration refiled charges in 2008, it dropped those allegations and described Mr. Qosi as a cook at an al Qaeda camp near Jalalabad, Afghanistan, who also worked as a driver and on a mortar crew.

Mr. Qosi agreed to a sentence under a secret plea bargain. He will receive that sentence instead of the 14-year term recommended Wednesday by the military commission, assuming the plea-bargain sentence is shorter, U.S. officials said.

The Arabic-language news channel al Arabiya, citing two unnamed people, said the plea-bargain sentence is two years.

Human-rights groups acknowledged the difficulty in resolving Guantanamo cases, but cautioned against making a quid pro quo with the Bashir regime.

“Whatever help the U.S. gets from Sudan for the goal of closing Gitmo is a bad bargain,” said American University visiting professor Juan E. Mendez, a special adviser on crime prevention to the ICC prosecutor. “Bashir milks that collaboration for all it is worth in his attempt to break the isolation in which he has been placed due to the arrest warrant issued by the ICC.”

Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, took another view. “Engaging with the Sudanese on this issue is more likely to have a positive impact than a negative one. The United States is in a difficult position to press Sudan on human rights violations, while holding Sudanese nationals at Gitmo,” she said. “And during the course of this repatriation, The U.S. may actually find some opportunities to press for accountability and new policies for Darfur and southern Sudan,” she said.

source:  Wall Street Journal

Spanish judge Baltasar Garzon was attacked by Jorge Rafael Videla followers, leaving federal courts in Cordoba. A journalist of Radio “Nacional” was punched in the face.
A man, identified by the group HIJOS as Alberto Aprea, was the one who hit with an open hand to journalist Aldo Blanco, when Blanco tried to take a picture of the aggression against the former Iberian judge.
Lawyer Claudio Orosz, said that when “Garzón was retiring after the audience, two relatives of the oppressors started to insult him.”

source: Momento24.com

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.
The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something - there will be claims and the court will have to say something.”
Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” - a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.
The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment:

The Prosecutor of the International Criminal Court, by pressuring Colombia through statements and visits, seems to have boosted Colombia’s historically ineffective justice system. The Colombian Supreme Court is making an unprecedented effort and has had success in bringing to justice those responsible for the worse atrocities against human rights. Although the UN and human rights NGOs continue to report crimes against humanity, for the first time in decades the Colombian judiciary appears to be an effective institution. Thus, under the complementarity principle, the ICC is unlikely to intervene because Colombia, at least for the time being, appears willing and able to hold accountable those who bear the ultimate responsibility for crimes under the Court’s jurisdiction.

Such stark disagreement between Colombia experts may explain the OTP’s reluctance to open a formal investigation.  In the end, though, the issue may turn out to be moot — because Colombia itself is now suggesting that the ICC should investigate crimes committed by FARC rebels allegedly based in Venezuela:

Colombia’s Prosecutor General Guillermo Mendoza Diago said Thursday that the Andean nation is considering whether to take evidence of numerous FARC and ELN camps in Venenzuela to the International Criminal Court (ICC), given that the guerrillas commit crimes against humanity and then seek refuge over the border.
“If we manage to establish that and we have information that the people who attack seek refuge in Venezuela and the authorities don’t do anything, but instead support them, then we would be able confirm that we could take the case to the International Criminal Court,” Mendoza said.
According to Mendoza, high-ranking Venezuelan officials, including Venezuelan President Hugo Chavez, could hypothetically be called to testify before the court.
“If the International Criminal Court prosecutor -  after we were to have presented the corresponding complaint, well founded in evidence were to be able to establish that Venezuelan authorities were co-participants in these acts, they could all be called to respond,” Mendoza said.
The prosecutor general said that the Colombian government had handed him a file documenting at least 60 attacks against Colombians, committed by FARC guerrillas, who had then fled to Venezuela.

Mendoza is correct that the ICC could investigate FARC crimes committed in Colombia — but he needs to remember that states can only refer situations to the Court, not individual cases or groups of cases.  So if Colombia wants to refer FARC’s crimes, it will have to accept the possibility that it will end up under the OTP’s microscope, as well.
I, for one, would very much like that to happen.

source: Opinio Juris

States can’t be relied on to honour their statutory obligations

The recent visit to Chad by Sudanese President Omar al-Bashir illustrates a fundamental problem confronting the International Criminal Court.

Bashir was indicted, for war crimes and crimes against humanity, in March 2009. Earlier this year, the charges against him were expanded to include three counts of genocide.

According to the Rome Statute that created the International Criminal Court, all member states are obliged to arrest indictees if they enter their territory.

However, Chad, which has signed the Rome Statute, offered Bashir a warm welcome rather than an arrest warrant. Chad’s leaders, who claimed that the court has been unfairly targeting African leaders, said their country was not obligated to facilitate Bashir’s arrest.

Chad cited a resolution by the African Union, which urged member states not to cooperate in sending the Sudanese president to The Hague.

The decision by Chad’s President Idriss Deby, to place his country’s relations with the African Union ahead of its obligations to the international court, has highlighted the court’s inability to require compliance among its member states.

At issue is the African Union’s contention that Bashir enjoys immunity from prosecution because he is a head of state. The court insists no such immunity exists, but since Sudan is not a signatory to the statute creating the court, some have argued that it is not governed by its rulings.

In addition, Article 98 of the Rome Statute stipulates that a country does not have to comply with a court’s request if it runs contrary to “its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State.”

Al-Hadi Shalluf, a French-Libyan lawyer, said, “The African Union is a regional organization and it is recognized by the United Nations. But it has no authority and no mandate to break international law.”

Other experts were more equivocal.

“There may be obligations on state parties, created by the Rome Statute, and Chad is subject to these obligations under international law,” said Professor William Schabas, formerly of Montreal and now head of the Irish Centre for Human Rights. “But Chad is also a member of the African Union and it may feel compelled to follow the political direction of the African Union as reflected in the resolution.”

Beyond the legal wrangling, the fact is that there are no sanctions outlined in the Rome Statute. This leads to punish countries that fail to comply, leads other lawyers to conclude that the court’s hands are tied.

“The court can’t do an awful lot because the whole Rome Statute is predicated upon complementarity, and states fulfilling their statutory obligations, and there is no sanction for non-compliance,” explained Karim Khan, who works as a defence lawyer at the court.

“The reality is that an indicted head of state is only going to be arrested when the states concerned decide that (it is in) their interests to bring him to justice,” Khan said.

Simon Jennings is a reporter in The Hague.

Institute For War & Peace Reporting

Source: The Montreal Gazette

Even as the United States proceeds this week to prosecute Omar Khadr, a child soldier held at the Guantanamo Bay prison, a top United Nations official has warned that this move would violate a statute of the International Criminal Court that no person under the age of 18 years should be tried for war crimes.

Mr. Khadr was arrested in Afghanistan in 2002 for allegedly throwing a grenade that killed a Delta Force medic, among other charges. He was said to have been 15 years old at the time.

Radhika Coomaraswamy, Secretary-General Ban Ki-moon’s Special Representative for Children and Armed Conflict, noted that prosecutors in other international tribunals have used their discretion not to prosecute children, adding, “Since World War II, no child has been prosecuted for a war crime.”

Child soldiers are victims

Ms. Coomaraswamy also said that child soldiers ought to be treated primarily as victims and alternative procedures should aim at rehabilitation or restorative justice rather than trial and prosecution by military tribunals. She had earlier warned that Mr. Khadr’s prosecution would set a dangerous international precedent for other children who are victims of recruitment in armed conflicts.

She went on to urge the U.S. and Canada, of which country Mr. Khadr is a citizen, to come to “a mutually-acceptable solution on the future of Omar Khadr that would prevent him from being convicted of a war crime that he allegedly committed when he was child”.

According to reports, constitutional experts have said he should have been released “years ago” given his youth and “evidence that his family upbringing forced him to take up arms with Bin Laden”. Others were reported to have argued that he should be returned to Canada and reunited with his family and possibly face trial there in a civilian court.

The LA Times reported that since his capture, Mr. Khadr has brought allegations that the U.S. army tortured him, held him in harsh conditions and prevented him from contacting his family and attorneys. He said he had suffered “deep emotional distress and borderline mental illness”. However, a ruling by a military judge this week said that Mr. Khadr’s confessions in prison could be used against him and dismissed arguments that they were “tainted by mistreatment”.

source: The Hindu

On 10 August, 2010, the Republic of Seychelles ratified the Rome Statute of the International Criminal Court. The Statute will enter into force for the Seychelles on 1 November, 2010, bringing the total number of States Parties to the Rome Statute to 112.

The Court welcomes the Seychelles’ decision to join the growing group of states determined to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, for the sake of present and future generations.

For further information, please contact Ms Sonia Robla, Chief of the Public Information and Documentation Section at +31 (0)70 515 8089 or (mobile) +31 (0)6 46 44 87 26; or at sonia.robla@icc-cpi.int

source: ICC

Naomi Campbell’s evidence at the war crimes trial of the former Liberian leader Charles Taylor was challenged today by her former agent Carole White and the actor Mia Farrow. Follow how the day unfolded

To read the complete article CLICK HERE

Out-going Colombian President Álvaro Uribe filed a complaint before the International Criminal Court against Venezuelan President Hugo Chávez for crimes against humanity that derive from the alleged harbouring of Colombian guerrilla fighters in Venezuelan soil, Uribe’s lawyer, Jaime Granados, informed.

A local Colombian radio station reported that Granados said he also received instructions from Uribe to file a complaint against the Venezuelan government before the Inter-American Commission of Human Rights (IACHR) for allowing the presence of “terrorists.”

The Colombian government showed the Organization of American States (OAS) on July 22 pictures and videos it considers as “evidence” of the presence of at least 1,500 Colombian guerrilla fighters in the neighbouring country. Among them is thought to be “Iván Márquez,” a high-ranking member of the Revolutionary Armed Forces of Colombia (FARC).

Uribe’s administration requested an international verification committee be created, while Chávez responded on the same day by completely severing bilateral ties, which were already “frozen” since last year.

Granados informed of the complaint just as President-elect Juan Manuel Santos is to take office in a ceremony to be carried out on Saturday in Bogotá.

source: Buenos Aires Herald

The new international criminal tribunals are unique, and are indeed a matter of pride for humanity. They send an unequivocal message that those committing egregious violations of human rights will be held accountable — no one is above the law and impunity will no longer be tolerated.

It is a pity that we had to wait several decades after the Nuremberg and Tokyo tribunals — which prosecuted and punished Nazi and Japanese leaders for war crimes following World War II — for the creation of these modern versions. But the Cold War dashed all hopes that an international criminal justice system could ever be created.

However, as religious hatred and ethnic cleansing in Bosnia led to widespread atrocities, the U.N. Security Council created the first ad hoc war crimes tribunal for Yugoslavia in 1993. The tribunal for Rwanda followed to deal with the genocide there. Other ad hoc and U.N.-backed tribunals were created for Sierra Leone, East Timor, Cambodia, and Lebanon.

With the establishment of the International Criminal Court at The Hague, Netherlands, we now have a permanent international tribunal with jurisdiction over genocide, war crimes, and crimes against humanity.

Supermodel Naomi Campbell this week learned the power of these tribunals. Forced to testify at the war crimes trial of former Liberian President Charles Taylor, she is appearing with her former agent and with actress Mia Farrow before a special court for Sierra Leone. This court has a Denver connection: Its chief prosecutor, Brenda Hollis, is an alumna of the University of Denver Sturm College of Law, and my former student. It is the first time a former African head of state has been put on trial before an international court.

Taylor allegedly traded weapons for “blood diamonds” obtained by rebels in Sierra Leone during their protracted civil war (1991-2002), which claimed more than 300,000 victims. Campbell’s testimony could support the prosecutor’s argument that Taylor gave her rough diamonds, to rebut his denial that he ever possessed them.

Taylor is not the only one to be charged with international crimes: The former president of Serbia, Slobodan Milosevic, died in the War Criminals Jail in The Hague, where he was on trial at the Yugoslavia Tribunal. A sitting head of state, Omar al-Bashir of Sudan, has been indicted by the International Criminal Court to face charges of genocide, among others. Cases presently before the ICC include the Lord’s Resistance Army leaders from Uganda as well as leaders from the Congo and Central African Republic. Cases from Kenya and Sri Lanka could be next.

In late July, the U.N.-backed Cambodia Tribunal convicted and jailed Kaing Guek Eav, known as “Duch,” for 35 years. He oversaw a prison where more than 15,000 people were tortured before being killed and was one of the Khmer Rouge officials who were responsible for the “killing fields” of Cambodia, when more than 2 million people perished in the late 1970s. Another former student of mine, Christopher Hale, is a member of the prosecution team in Cambodia. Other major Khmer leaders now under prosecution may not live to see the end of their trials.

Watching the Congolese warlord’s trial at the ICC in The Hague this June was an unsettling experience for me and my law students, who were serving as interns at the tribunal. One witness’ story of mass killings was so matter-of-fact it was chilling.

While costly, the tribunals play an increasingly pivotal role in deterring heinous conduct. Ruthless dictators and perpetrators of human rights violations, like al-Bashir of Sudan, are now on notice that they may run but can no longer hide.

Ved P. Nanda (vnanda@law.du.edu) is Evans University Professor and director of International Legal Studies at the University of Denver. He is a regular contributor to the op-ed pages.

source: Denver Post

African members of the International Criminal Court must clarify whether they will arrest Sudanese President Omar al Bashir for genocide and war crimes, the Coalition for the International Criminal Court (CICC) says.

Bashir is on the International Criminal Court’s (ICC) most wanted list for orchestrating a campaign of rape, murder and torture in Sudan’s war-torn Darfur region. Last month, ICC judges added three genocide counts to Bashir’s charge-sheet, which is already listing seven counts of crimes against humanity and war crimes.

African leaders were once the most passionate supporters of the permanent war crimes tribunal in The Hague. Africa is the continent with the most countries - 30 - belonging to the ICC. But ever since Bashir was indicted in 2009, African leaders are having second thoughts, concerned that the permanent war crimes tribunal is only targeting their continent.

The CICC - melding 2,500 civil society groups in 150 countries - on Wednesday rang the alarm on an African Union decision - approved on Tuesday July 27th - which condemns the warrant for Bashir and calls for its suspension.

“Al-Bashir is widely considered a fugitive from justice, especially in Africa. Rather than throw support behind crucial accountability processes in line with the Constitutive Act of the AU that commits member states to reject impunity, the Heads of State are playing a political game to show support for their colleague Bashir,” says Oby Nwankwo from the Civil Resource Development and Documentation Centre, a CICC member. “African victims deserve more than this from our heads of state; indeed the African continent deserves more.”

The CICC also expressed its concern over the AU’s decision to postpone the establishment of an ICC-AU Liaison Office. William Pace, CICC Convenor says such an office “would facilitate formal and structured dialogue between the court and the AU and could [...] address some of the Union’s concerns about the court.”

Bashir unlikely to risk arrest in Libya
Until now, only Botswana and South Africa have said they would arrest Bashir if he set foot on their territory. Stephen Lamony, CICC Africa Situations Adviser, calls “on more African states parties to the ICC to make clear their continued obligations to the Court.”

On Wednesday Bashir will fly to Libya for a two-day visit. Libyan leader Muammar Gaddafi, a close ally to Bashir, has not signed the Rome Statute that established the ICC in July 2002 and is unlikely to arrest him. This will be Bashir’s second trip abroad since the ICC widened Bashir’s charge sheet to include genocide last month.

Chad, a full ICC member, hosted Bashir in July but did not arrest him, reflecting a rapprochement between the neighbours who had waged a proxy war in Darfur and eastern Chad.

In 2000 Sudan itself signed the Rome Statute that established the ICC but had not ratified it by 2005 when the UN Security Council referred Darfur to the court’s prosecutor Luis Moreno Ocampo. Bashir rejects the ICC charges and also refuses to hand over two other suspects - former minister of humanitarian affairs in Darfur, Ahmad Haroun and Janjaweed militia leader Ali Kushayb.

source:  Radio Netherlands Worldwide

As a tribute to International Justice Day, IJCentral and the ICC Office of the Prosecutor launched our newest endeavor “Ask the Prosecutor”.  We asked you what you wanted to know about the International Criminal Court. Luis Moreno Ocampo, the prosecutor for the ICC, is steadily answering your questions here:

IJCentral Action Network

We are continuing to take questions as we develop this initiative and will get them answered as soon as possible.

- Team IJCentral

International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo claims in an appeal that the order by trial judges for a stay of proceedings in the Thomas Lubanga war crimes trial was erroneous and excessive.

While disputing the grounds on which judges based their decision, the prosecutor also contends in a July 30, 2010 filing that the trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

On July 8, 2010, trial judges ordered the stay of proceedings due to abuse of court process which they said resulted from failure by prosecutors to disclose the identity of a person who helped them to assemble their witnesses. The judges said that failure to disclose the identity of this individual, who is referred to in court as ‘intermediary 143’, rendered it impossible to ensure a fair trial for Mr. Lubanga.

Subsequently, the trial judges on July 14, 2010 ordered Mr. Lubanga’s release, stating that he could not be held in preventative custody based on speculation that proceedings might resume at some stage in the future. Appeals judges have since ruled that Mr. Lubanga should remain in ICC detention until the prosecution’s appeal has been decided. Prosecutors are appealing both the stay of proceedings and the release order.

Describing the stay of proceedings as having been “excessive and disproportionate”, Mr. Moreno-Ocampo argues that “the chamber further erred in failing to grant a proportionate remedy in the face of what it characterized as the prosecution’s errors of approach and attitude”.

He stated: “The chamber had at its disposal a range of alternative remedies that would not affect in such a drastic and final way the continuation of trial proceedings, a measure that impacts on the rights not only of the prosecution but also of victims and of the communities where the crimes occurred.”

Mr. Lubanga is on trial over the recruitment, conscription, and use of child soldiers in inter-ethnic fighting during 2002 and 2003. According to ICC prosecutors, the crimes were committed in Ituri province in the Democratic Republic of Congo (DRC) while Mr. Lubanga allegedly headed the Union of Congolese Patriots rebel group.

Mr. Moreno-Ocampo argues that article 71 of the statute that established the ICC stipulates the consequences of non-compliance with a court order as ‘sanction for misconduct’. He notes that while trial judges indeed issued a formal warning to the Prosecutor and the Deputy Prosecutor in line with this provision, they went ahead and also ordered a stay of proceedings.

In the 39-page filing, which lays out the prosecution’s appeal arguments, Mr. Moreno-Ocampo suggests that trial judges could have suspended the trial for one or two weeks to allow for protective measures to be instituted for ‘intermediary 143’ before his identity was disclosed.

In failing to obey the order by judges, prosecution staff claimed that revealing the intermediary’s identity before protective measures were put in place for him would have put his life at risk. The intermediary is based in the DRC.

“The prosecution will seek to show that it did not receive a reasonable opportunity to present its views before variation of intermediary 143’s protective measures was adopted and that its insistence to present its views afterwards was wrongly considered to be defiance of the court’s authority,” the filing reads.

Mr. Moreno-Ocampo also points out that trial judges did not seriously test the availability or effectiveness of measures which could have enabled the trial to continue even as arrangements were being made for disclosure of the intermediary’s identity. “For example, the chamber failed to fully explore its initial proposal of proceeding with the defense cross-examination and deferring to a later stage those questions that required the defense’s knowledge of intermediary 143’s identity,” he argues.

Mr. Lubanga’s defense is yet to file its response to the prosecutor’s document spelling out its arguments for appeal. Although judges are on judicial recess, over the last two weeks they have issued a number of rulings, signaling that the appeal might be disposed of in a short period of time.

Mr. Lubanga has been in detention at the ICC since March 2006. His trial started on January 26, 2009, while the defense case opened on January 27, 2010.

Last Friday, the prosecution asked judges to let the case be heard in court. While noting that the appeals chamber had never entertained in-court argument in an interlocutory appeal, the prosecution argued that given the importance of the case and the complexity of the issues, oral argument would be appropriate in the current appeal. Judges are yet to make a ruling on this request.

The judges hearing the appeal are Judge Sang-Hyun Song, Presiding, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.

source: The Lubanga Trail

Paris, Nairobi, Khartoum, Kampala, 30 July 2010 – The International Federation for Human Rights (FIDH) together with its Sudanese member organizations, the African Center for Justice and Peace Studies (ACJPS) and the Sudan Human Rights Monitor (SUHRIM), deeply regret the refusal of the African Union (AU) to cooperate with the International Criminal Court (ICC), as expressed at the 15th Summit of Heads of State and Government held in Kampala, Uganda, from 15 to 27 July 2010.

The AU reiterated its call for the prosecution of Sudanese President Omar El Bashir to be deferred, as well as for Article 16 of the Rome Statute to be amended in order to enable other UN bodies to request the suspension of the ICC prosecutions in case of inaction by the Security Council. The AU also refuses the establishment of an ICC liaison office at the AU and threatens to sanction African States Parties to the Rome Statute should they depart from AU’s decisions.

Our organizations recall that, according to the objectives of the AU as defined in its Constitutive Act, Member States must promote and protect human rights according to the African Charter on Human and Peoples’ Rights.

Our organizations stress that the ICC action on Darfur is the result of a referral to the Court by the UN Security Council on the basis of Chapter VII of the UN Charter, which is therefore binding on Sudan and other countries of the AU.

Our organizations also recall that the Security Council’s decision to refer the situation in Darfur to the ICC was based on the utter lack of justice in Sudan despite the commission of the most serious crimes during the conflict that still pits government troops against rebel groups.

For the record, since 2003, this conflict has killed over 300,000 people and forced more than 2 million civilians to flee or to move. Nevertheless, no serious act of justice has been udertaken in Sudan, as confirmed in the 2004 report of the International Commission of Inquiry on Darfur, mandated by the United Nations, and the 2009 Report of the High Level Panel appointed by the African Union. In accordance with its Statute and under the principle of complementarity, the ICC would not have interfered should there have been an effective and fair justice process in Sudan.

The AU’s position is based in particular on the claim that justice is in conflict with peace in Darfur. But this statement can be reversed, as explains Osman Hummaida, President of ACJPS: “it is because there is no justice process that no peace has been possible in Sudan. And it is certainly the action of international justice on this country which has led the key players to resume negotiations in order to find a settlement to the conflict”.

The second argument put forward against the action of the ICC is the fact that it intervenes only in Africa even though other serious crimes are committed elsewhere, including by representatives of Western countries. Although this is true, is it acceptable to use the ICC’s lack of universal jurisdiction as a pretext to trample on the memory of the 300,000 victims in Darfur and other African victims in Uganda, the Democratic Republic of Congo, Central African Republic or Kenya who demand the intervention of international justice to fight impunity?

Our organizations would have expected a more coherent and positive attitude from the AU. “It should rather call for the universality of the ICC by asking all the States to submit to its jurisdiction and adopt domestic laws to prosecute perpetrators of serious crimes, thus avoiding international intervention.
The AU should also accept dialogue with the ICC by authorizing the establishment of a liaison office at the AU ; it would then set an example on a continent that refuses impunity like 30 of its Member States did when they ratified the Rome Statute,” said Sidiki Kaba, FIDH Honorary President .

Press Contacts : Karine Appy/Fabien Maitre + 33 1 43 55 14 12 / + 33 1 43 55 90 19

source:  International Federation for Human Rights

The African Union president has criticised International Criminal Court (ICC) indictments against Omar al-Bashir, Sudan’s president, saying they were “undermining African solidarity and African peace and security”.

Bingu wa Mutharika, who is also the Malawian president, urged African leaders at the opening session of a summit in the Ugandan capital, Kampala, to look for ways of resolving the conflict in Sudan without the need to arrest Bashir.

“To subject a sovereign head of state to a warrant of arrest is undermining African solidarity and African peace and security that we fought for for so many years,” he said.

Earlier this month, the ICC added a genocide charge to Bashir’s indictment, which already included charges of war crimes and crimes against humanity in Sudan’s western Darfur region.

He is accused of orchestrating murders, rapes, and torture during the conflict between between rebels groups and government forces backed by local militias.

“There is a general concern in Africa that the issuance of a warrant of arrest for… al-Bashir, a duly elected president, is a violation of the principles of sovereignty guaranteed under the United Nations and under the African Union charter,” Mutharika said.

“Maybe there are other ways of addressing this problem. Let us together explore this possibility.”

Warrants dispute

Delegates from 53 countries across Africa are meeting in the Ugandan capital for an African Union (AU) summit expected to focus on security in Somalia, but Bashir himself is not expected to be among them.

An initial draft of a resolution to be passed at the African Union (AU) meeting in Ugandan capital Kampala, seen by the Reuters news agency on Saturday, contained two contentious clauses about the arrest warrants.

But both paragraphs were removed after arguments that went on until the early hours of Sunday, AU and Western diplomats said.

The first clause advised African countries not to arrest Bashir if he visited their nations, even if they were signatories to the Rome Statute which established the ICC and obliges them to carry out its arrest warrants.

“[The AU] reiterates its decision that AU member states shall not co-operate with the ICC in the arrest and surrender of President Bashir,” the paragraph said.

Thirty African nations are members of the ICC.

The second deleted clause attacked Luis Moreno-Ocampo, the ICC prosectuor leading thecase against Bashir.

Jean Ping, the AU Commission chairman, has said the decision to prosecute Bashir has undermined peace efforts in Sudan.

Somalia security

The summit is taking place two weeks after Somalia’s al-Shabab fighters bombed Kampala in an attempt to force Uganda to withdraw its troops from their country and opened on Sunday with a solemn two-minute silence for the victims of the attack.

African leaders have condemned al-Shabab and pledged to beef up an African force fighting the group.

Ping called the al-Shabab attacks, which left at least 76 people dead, “despicable” and said the continental body was ready to step up its response.

“The commission is already planning the next phases in the deployment of Amisom in terms of the enlarged mandate, increased troop strength and appropriate equipment,” he said.

Al Jazeera’s Andrew Simmons, reporting from Kampala, said that a more aggressive approach towards al-Shabab was likely to be adopted at the summit.

“There is definitely going to be an offensive message from this summit, definitely an increase in troops and possibly a change in mandate,” he said.

“The question is whether this is going to bring Somalia back to some sort of peace after two decades of mayhem.”

Guinea and Djibouti announced a plan on Friday to send troopsto bolster the AU peacekeeping force charged with protecting the transitional government in Somalia.

Yoweri Museveni, the Ugandan president, urged African leaders to defeat “the terrorists” and “sweep them out of Africa” during his address.

Mutharika joined him in condemning the perpetrators of the Kampala blasts “in the strongest terms”.

“The African Union stands with you, my brother President [Museveni] and with the people of Uganda,” Mutharika said.

Al-Shabab said that the attacks were in response to the deaths of Somali civilians at the hands of AU peacekeepers.

The group, which the US says is allied to al-Qaeda, has warned of further violence in Uganda and Burundi unless they pull their troops out of Somalia.

source: Al Jazeera and agencies

The first man to be tried by the international criminal court (ICC) has been handed a “get out of jail free” card again. Following repeated clashes with prosecutors over security measures for an anonymous source, judges halted the trial and decided to release Thomas Lubanga Dyilo, a Congolese politician charged with recruiting child soldiers.

Both ICC prosecutors and victims of the brutal conflict in the Democratic Republic of Congo hope this is simply another legal glitch which will soon be fixed. But judges have warned that it may signal an abrupt end to the ICC’s first trial—not something most international justice advocates would have hoped for this beleaguered and controversial institution.

Indeed, the potential collapse of the case will no doubt be viewed as deeply disappointing by many Congolese victims who have waited years to see individuals held accountable for their alleged role in brutal crimes unleashed in eastern DRC. The order that Lubanga be set free with no strings attached may also terrify some in the DRC’s remote Ituri region, as Lubanga’s supporters celebrate (Lubanga has denied all charges against him). The Congolese government, the ICC, and others in a position to help must be on red alert to make sure people on the ground stay safe if there is any trouble.

But the trial chamber’s decision does send a deeply important message about the ICC: this is no kangaroo court. If the process is not fundamentally fair, then the accused must be released.

Sceptics have portrayed the ICC as a tool used by politicians in power to eliminate rival leaders and have noted that any ICC prosecutor could be riskily unpredictable if not kept in check.

Instead, this episode demonstrates that the ICC is serious about its mission to provide a fair hearing to those who come before it. It is genuinely struggling as an institution to find the right balance of responsibilities between the judges and prosecutors while also taking on board concerns about the safety of victims, witnesses, and others who could be harmed on account of the court’s work.

The ICC has previously sent a strong message about the importance of fair trials, deciding in 2008 to release Lubanga before his trial had even begun. In 2008, prosecutors refused to share information obtained under confidentiality agreements with the United Nations and other organisations, which could have bolstered the case for Lubanga’s innocence. According to the judges, this denied Lubanga’s right to a fair trial and so he should be set free. Prosecutors appealed, the dispute was resolved and the trial finally started in January 2009.

This time around, the judges decided to release Lubanga, citing the prosecutors‚ repeated refusal to comply with an order to tell Lubanga and his defence team the identity of a person who had helped prosecutors find potential witnesses. In response, the prosecutors cited dual obligations: one to comply with the decision of the judges, and a separate responsibility to protect individuals who may be harmed on account of the prosecutors’ work. Though the judges were told by protection specialists at the court that the person would be at no greater risk by their disclosure order, prosecutors disagreed—a move which drove the judges to issue a warning for misconduct to the chief prosecutor and his deputy.

“No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations,” the judges stated last week, calling the prosecutor’s actions “a profound, unacceptable, and unjustified intrusion into the role of the judiciary.” To make sure Lubanga gets a fair trial, the court said “it is necessary that its orders, decisions, and rulings are respected.”

The judges then said that continuing to hold Lubanga would be “unfair,” given the “wholesale uncertainty” of whether the trial would restart, along with the length of jail time (five years) Lubanga has already served. Prosecutors have appealed, arguing that Lubanga may flee if set free. Prosecutors also said they did not disrespect the Trial Chamber’s orders, but instead the clash amounted to a different perception of judicial and prosecutorial roles under the court’s guiding documents, and now want the roles clarified by the appeals chamber. Lubanga will be kept in jail until the appeals chamber decides whether the case can go forward.

But whatever the outcome of the appeal, the ICC has demonstrated that the court is serious. Both the prosecutors and judges have shown that at least in this instance they care deeply about security of the people who may be put at risk on account of their work, with an outcome highlighting that the judges are the ultimate decision-makers and will not brook disobedience by parties. Meanwhile, for the judges‚ determination to ensure fair trials means that anyone indicted should not be afraid of coming before the court to put forward their case.

Slowly, painfully, and with disappointments along the way, the ICC is showing that even if we are disenchanted with the outcomes it is a place which operates exactly as a court should: according to the law, and with checks and balances in place to keep the trials fair.

Tracey Gurd is legal officer for the International Justice Program of the Open Society Justice Initiative.

source: The Guardian