Posts tagged "International Criminal Court"
Posted by Mike Pflanz on 16 12 2010 | Leave a comment
After more than a year of investigations, the chief prosecutor of the world’s sole war-crimes tribunal has accused six prominent Kenyans of orchestrating the post-election violence that killed 1,200 people three years ago.
Luis Moreno-Ocampo said on Wednesday that he has evidence that all were involved in the perpetration of crimes against humanity, including murder and ethnic cleansing. He has brought two separate cases, with three defendants each.
If judges at the International Criminal Court (ICC) agree, the six men will be summoned to appear at The Hague, Netherlands – and issued arrest warrants if they fail to comply.
If the two cases come to trial, it will mark a first for Kenya. There has never yet been a single successful prosecution for senior Kenyan figures implicated in a series of alleged gross crimes of violence or corruption.
“Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity,” said President Obama in a statement Wednesday.
“I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realize the country’s vast potential.”
Florence Wambugu, a woman selling grilled maize on a street corner in an upmarket Nairobi suburb, agreed with Mr Obama.
“This is something we know we cannot do ourselves, even if so many of want these people to go to court,” she said.
“In Kenya, they would buy their way to freedom. There, in Europe, we hear that you cannot do that. They must face their music, and others wanting to copy their evil deeds will be made to think twice.”
The six accused
Mr. Moreno-Ocampo, the ICC’s chief prosecutor, has drawn up two cases, with three accused in each.
The first involves William Ruto, the suspended higher education minister, Henry Kosgey, the industrialization minister, and Joshua Sang, a presenter on a local-language radio station.
All are accused of involvement in crimes against humanity including murder, ethnic cleansing, targeting supporters of rival political parties, and torture.
The second case involves Uhuru Kenyatta, the deputy prime minister and son of Kenya’s founding father; Francis Muthaura, head of the civil service and a close ally of President Mwai Kibaki; and Maj. Gen. Hussein Ali, the former chief of police.
That trio is linked to crimes against humanity, murder, ethnic cleansing, inhumane acts, and sexual violence. Most of the men swiftly denied any wrongdoing Wednesday.
“These were not just crimes against innocent Kenyans,” said Moreno-Ocampo, who is pursuing separate cases against Sudan’s president, Congolese warlords and Ugandan militia leaders.
“They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice.”
Kenyan president stands by those accused – so far
The ICC judges are expected to spend the next few weeks going through the 158 pages of evidence presented Wednesday by Moreno-Ocampo.
If they agree with him, the six men will be summoned to appear before the court, and arrest warrants will be issued if they fail to comply.
In what Mwalimu Mati, director of anti-graft watchdog Mars Kenya, called a “distressing sign,” President Kibaki has already stated that he will not ask those members of his government named in the list to step aside until charged.
“The people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but began,” Mr. Kibaki said in a statement.
“They therefore cannot be judged as guilty until the charges are confirmed by the court. Calls for action to be taken against them are therefore prejudicial, preemptive and against the rules of natural justice.”
For Mr. Mati, this is not enough.
“These are people who will wake up tomorrow and go to work for the government, despite being accused of rape, murder and ethnic cleansing,” he said.
“Of course, they are innocent until proved guilty. But it does seem that the president is sending totally the wrong message by starting this whole thing by appearing to stand by them.”
But other Kenyans believe Ocampo has gone too far.
“Ocampo has thrown everybody off balance and this decision to charge these politicians does not reflect the mood of the people,” says Nairobi lawyer Ken Ogeto.
Some have worried about another outbreak of violence in the Rift Valley, home to three of the six accused – Mr. Ruto, Mr. Kosgey, and Mr. Sang.
But in the Rift Valley town of Eldoret, scene of much of the post-election violence in early 2008, Ken Wafula says that the area remains calm, and adds, “I have not, as a non-Kalenjin, received any threats as it was during the post-election violence.”
source: The Christian Science Monitor
Posted by JEFFREY GETTLEMAN and MARLISE SIMONS on 15 12 2010 | Leave a comment
LAMU, Kenya — The prosecutor of the International Criminal Court is seeking to indict several high-ranking Kenyan politicians, including the finance minister and a former national police chief, for crimes against humanity in what he calls an orchestrated campaign to displace, torture, persecute and kill civilians during Kenya’s election crisis in 2007 and early 2008.
These are the first serious charges sought against Kenya’s political elite for the violence, and are intended to address one of Africa’s glaring weak spots — disputed elections — which have led to turmoil in Zimbabwe, Ethiopia, Nigeria and, most recently, Ivory Coast.
“This is a different kind of case,” Luis Moreno-Ocampo, the court’s chief prosecutor, said of the accusations, which are scheduled to be announced Wednesday. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
And, Mr. Moreno-Ocampo added, “this isn’t just about justice. For Kenya, this is survival.”
Among the top six politicians named are Uhuru Kenyatta, finance minister and son of Kenya’s founding leader, Jomo Kenyatta; Mohammed Hussein Ali, the former police chief, who stands accused of unleashing police officers to shoot unarmed demonstrators; and William Ruto, arguably Kenya’s most divisive political figure, widely accused of instigating violence but revered as a hero within his ethnic community, the Kalenjin. Some of the worst episodes of violence, including the burning of a church with dozens of women and children inside, occurred in predominantly Kalenjin areas.
The case follows an international effort to help pull Kenya back from the brink of chaos after the disputed election in December 2007 set off widespread protests and ethnically fueled fighting, which swept the country and killed more than 1,000 people.
“Finally, we have our day,” said Maina Kiai, a former Kenyan human rights official. “This is the first time we have high-ranking people facing the law where they have no control and they can’t bribe their way out of it.”
Mr. Kiai and many others say Kenya has had a dangerous habit of whitewashing sensitive investigations, often setting up high-level commissions but never punishing the culprits. This record of impunity has led to mass killings around previous elections as well, and many Kenyans fear that the next election, in 2012, could be worse if the ringleaders of 2007 go free. Others worry that prosecutions will inflame tensions instead.
The case brings the court into some uncharted territory. All of its previous cases have focused on militias and war zones, and this is the first time that Mr. Moreno-Ocampo has stepped in on his own initiative, without a request from the home country or by the United Nations Security Council.
Mr. Moreno-Ocampo has been criticized for solely prosecuting Africans and for being overzealous, particularly in his dogged pursuit of genocide charges against President Omar Hassan al-Bashir of Sudan. The effort to arrest Mr. Bashir has proved very difficult and alienated some African countries.
This time, Mr. Moreno-Ocampo plans to ask the judges at The Hague to issue a summons, not an arrest warrant. That would allow the accused to turn themselves in and spare Kenya, at least initially, the awkwardness of having to hand over its political elite. Mr. Moreno-Ocampo has also implicated leaders from both sides, the government and the opposition, a decision many Kenyan observers say could be crucial in influencing what happens next — peace or more bloodshed.
“If the I.C.C. is seen as having done a balanced job,” said John Githongo, a former anticorruption official who was forced into exile and recently returned to Kenya, “then it will be more difficult for the elite to mobilize people violently against it.”
But, Mr. Githongo added, “Kenya is now a volatile country. The politics are bubbling. A lot of change is happening at the same time. Anything is possible.”
In recent days, Kenyan police commanders have put their forces on high alert in anticipation of Mr. Moreno-Ocampo’s announcement. But officers were given explicit orders to use restraint, especially with live bullets. Many Kenyans expect Mr. Ruto’s supporters in the turbulent Rift Valley to be the most upset.
The case is expected to face legal hurdles as well. The prosecutor is seeking to charge all six men with crimes against humanity. But several international-law experts and a judge at the court have questioned whether the violence of 2007, while serious, fits that definition.
“The question is not whether the crimes have happened,” wrote Judge Hans-Peter Kaul, one of three judges who reviewed the prosecutor’s investigation. “The issue is whether the I.C.C. is the right forum before which to investigate and prosecute these crimes.”
It was not, Judge Kaul concluded. The two other judges disagreed, allowing the investigation to proceed. But experts said the question of the court’s jurisdiction would linger.
After the disputed election, Kenya’s leaders vowed to pass a new constitution; set up a local tribunal to prosecute the election killings; and undertake land reform, police reform and a number of other ambitious reforms whose urgency was exposed by the election turmoil.
Kenya’s political class accomplished some of these tasks, including the peaceful passage of a new constitution in August that devolves power and establishes a bill of rights. But efforts to set up a local tribunal were typically blocked by the very politicians who were implicated. Now some Kenyan politicians, including several of those named in the charges, are trying to resuscitate the idea.
According to Mr. Moreno-Ocampo, the evidence predates the disputed election in December 2007, in which Kenya’s incumbent president, Mwai Kibaki, was declared the winner, despite mounting evidence that the real winner was Raila Odinga, an opposition politician who is now prime minister.
Mr. Moreno-Ocampo says Mr. Ruto (who used to be a minister but was suspended recently because of corruption accusations); Henry Kosgey, the minister of industrialization; and Joshua arap Sang, a radio broadcaster — all well-known opposition figures — began planning a year before the election to attack supporters of the governing party. After Mr. Kibaki was declared the winner, prosecutors say, the network they cultivated burned homes, killed civilians who had supported Mr. Kibaki and systematically drove people off their land.
In response, prosecutors say, Mr. Kenyatta, Mr. Ali and Francis Muthaura, the head of the civil service, “developed and executed a plan” for “suppressing and crushing” opposition protests and keeping the governing party in power.
The police were sent to opposition strongholds “where they used excessive force against civilian protesters,” and Mr. Kenyatta and Mr. Muthaura deputized one of Kenya’s most brutal street gangs, the Mungiki, to “organize retaliatory attacks against civilian” opposition supporters, the prosecutor contends.
But many observers say evidence from the earliest days of the crisis implied that some of the killings were spontaneous expressions of rage, not centrally organized, and that the organized violence was planned at local levels, by chiefs and elders, not necessarily by top politicians.
The suspects have denied any wrongdoing. Mr. Ruto has called the evidence “cooked up.” He has said that witnesses have been bribed and that the case “will in the end amount to fraud.”
Mr. Kenyatta said in October that he was “not concerned personally by the I.C.C. warrants” and that “once due process has taken place, the truth eventually will come through.”
Neither of the two political protagonists whose rivalry set off the violence, the president and the prime minister, are implicated in the case. Many experts believe this is one reason that Kenya will ultimately cooperate.
“The Kenyan government is not Zimbabwe,” said Mr. Kiai, the former human rights official, referring to Zimbabwe’s antagonistic relations with the United Nations and the West. “International acceptance is important to Kenya.”
Jeffrey Gettleman reported from Lamu, and Marlise Simons from Paris.
source: The New York Times
Posted by Anjana Sundaram, Blake Evans-Pritchard, Héritier Maila, François Kadima on 19 11 2010 | Leave a comment
Despite his detention at the ICC, indictee’s hold over western DRC remains strong.
With the war crimes trial of Jean-Pierre Bemba due to start in the Hague next week, it seems unlikely that he will run in the 2011 elections in the Democratic Republic of Congo, DRC - but the former vice-president continues to exert a large amount of political influence in the country.
Bemba, who remains the leader of the Movement for the Liberation of Congo, MLC, was arrested by Belgium authorities in 2008 and transferred to the International Criminal Court, ICC. He faces two counts of war crimes and three counts of crimes against humanity relating to atrocities he allegedly committed in the Central African Republic, CAR.
In the 2006 election, Bemba won a significant 42 per cent of the total votes cast, while incumbent president Joseph Kabila secured 58 per cent, according to the country’s independent electoral commission. The outcome of the ballot was broadly accepted by international observers.
Most of Bemba’s support comes from the west of the country, including the area around the capital Kinshasa, where many of his supporters remain critical of Bemba’s detention, viewing it largely as an attempt by Kabila to get rid of a formidable adversary.
“Many people in the west [of DRC] feel that he was unfairly imprisoned,” Jason Stearns, an expert on the DRC conflict and creator of the popular blog Congo Siasa, said. “Congo is full of warlords and criminals… [people think that] the fact that one would exclusively pursue Bemba is unfair and biased against Bemba.”
It is not difficult to find people in the west of the country who are outraged by Bemba’s arrest and detention.
“Bemba should be freed before the election so that he can come and end the suffering of the Congolese,” Kalala Jean-Marie, who lives in Limete, an area of Kinshasa, said. “All the Congolese are counting on him, after being so disappointed by Kabila, and so he must be returned home. Bemba is innocent and [ICC prosecutor] Luis Moreno-Ocampo has not gathered sufficient evidence to prove his involvement in war crimes.”
Emmanuel Malonga, also from Kinshasa, says that Bemba’s continued detention at the ICC is unjust.
“The Congolese authorities have used the ICC to get rid of Bemba ahead of the 2011 elections,” he said. “But the MLC has a great vision for this country, and any candidate that stands against Kabila will be voted in.”
ALTERNATIVE TO BEMBA
One of the problems for the MLC at the moment is that there is no strong alternative to Bemba, who continues to command strong support in key areas.
As a wealthy businessman, Bemba is also thought to have sufficient funds to be a powerful challenger in the 2011 election, although many of his personal assets have now been frozen. This is so that, in the event that the ICC hands down a guilty verdict, compensation can be paid to his victims.
“It is very difficult for us to go forward if Bemba doesn’t come back to Kinshasa and lead our party,” Germain Kabinga, an MLC spokesman, said. “We are sure that, with Bemba in Kinshasa, we can win the election in 2011. Without him, winning the election will be very difficult.”
Like many in the MLC, Kabinga claims that the influence Bemba continues to wield makes him a political target for Kabila’s ruling party.
“We think that some people are working in the shadows to make certain that Bemba is out of Kinshasa when the elections are held in 2011,” he said. “This is why we say that this is a political trial.”
But Felix Tambwe, a member of the People’s Party for Reconstruction and Development in Lubumbashi, which is allied with Kabila, told IWPR, “We have no interest in meddling in this case because the crimes have been committed outside of the DRC. What power do we have to influence the ICC? With Bemba as candidate, we are not afraid to go to the election because our candidate [Kabila] won in 2006. We just want justice to be done without bias. Only the ICC has the power or mandate [over whether to convict him or not]. This is nothing to do with the Congolese government.”
Georgette Seya, a member of the Alliance of the Presidential Majority, a political grouping formed by allies of Kabila, added, “No one is above the law and Bemba must answer for his actions. If he is innocent, he will be released, but the important thing is to make sure the law is applied in full, to deter other criminals to come.”
It is conceivable that Bemba could run in the DRC elections - which according to the constitution need to be held by next September at the latest - even though he is being detained by the ICC, since he has not been formally convicted.
There is a precedent for detainees being permitted to contest general elections. In 2007, the International Tribunal for Yugoslavia, ICTY, granted Ramush Haradinaj, a former Kosovo Liberation Army commander, permission to stand in the country’s elections whilst still on trial.
It looks unlikely, however, that the same scenario would happen in Bemba’s case.
Guillame Lacaille, an analyst at the International Crisis Group, says that the MLC’s top leaders were already in agreement as early as November last year that if Bemba was not out of jail and able to campaign before the start of the electoral campaign, then another candidate would be chosen.
But Kabinga says that no decision has yet been reached.
“Certainly, one of the hypothesis is that [Bemba could still run], and we are working on this hypothesis,” he said. “But we want to see whether, at the time of the election, Bemba is still being held by the ICC. Then we will decide what to do.”
The question remains: if not Bemba, then who will lead the MLC into the next election?
Kabinga dismisses the question of a replacement for Bemba with a laugh, saying that he still holds out hope that the wealthy businessman can lead the party to triumph.
“The truth is that the only one who can represent our party in this election is Bemba,” he said. “If the time comes and Bemba isn’t available, then I’m sure that Bemba himself will tell us what to do. And it will certainly be in the right way to help our people to be free, to have a real leadership that can take us and our country forwards.”
The question of who Bemba will endorse in his absence remains a crucial one, given his strength in the country. But some question his apparent popularity.
“It’s not clear whether his popularity in the west [of the country] is due to the mobilisation of the party or the cult of personality… and the fact that he’s from the west,” Stearns said.
In the build-up to the elections in 2006, Bemba did not poll very strongly. It was only nearer to the elections that his support really started to grow, largely because rival Étienne Tshiksekedi fell out of favour with the electorate, according to Stearns.
In fact, the western Congo region may be more united in its hatred for Kabila than its allegiance to Bemba.
Filip Reyjentns, law professor at the University of Antwerp, said that the support Bemba has built up in the west was stemmed from trying to “beat Kabila by voting for someone else”.
Over the last four years, both Bemba and Kabila have faced weakening support from people in their respective strongholds in the west and east.
Bemba’s rebel group was based in Equateur, a western province. Now that he no longer has a military presence there, some think that he may not be able to count on the same level of backing from the region.
Meanwhile, Kabila’s presidency is under fire for not delivering on its four-year reconstruction programme, aimed at improving unemployment, infrastructure and education.
“He knows now that he has no popular base, except maybe in Katanga, as a tribal reflex,” said Lacaille, referring to Kabila’s home state. “His strategy is therefore to make sure that no serious candidate challenges him in 2011.”
A CROSS-REGIONAL ALLIANCE
Both Bemba and Kabila’s parties need to build key cross-regional alliances with strong local parties to stand a chance to gain an electoral majority.
In the east, Bemba never had much popularity and his troops are suspected of committing atrocities in the north-east. In the west, there is vitriolic hatred for Kabila.
Bemba’s defence lawyer Aime Akilolo Musamba says that he has “never heard about Bemba endorsing another candidate”. However, there are rumours of a possible alliance with Vital Kamerhe, speaker of the national assembly, who has a strong following in the east.
“The alliance with Kamerhe could be a winning ticket,” Lacaille said. “That will be huge and it is a likely scenario.”
An alliance with the MLC would give Kamerhe a party from which he could launch a bid for the presidency. But more importantly, it would give him the support that he needs in the west.
“If Kamerhe tries to build up an alliance with Bemba, it is with Bemba not with the MLC,” Lacaille said. “The structure of the MLC may be… useful, but what will be more useful for Kamerhe is the benefit from the popularity of Bemba in the west.”
Other smaller contenders include Tshiksekedi and Kengo wa Dondo, a former prime minister under Mobutu.
Tshiksekedi is an elderly, veteran politician who formed the first strong opposition movement to former president Mobutu Sese Seko. While he has the backing of a local party structure, most of his support is in the centre of the country, in the Kasai provinces and in Kinshasa.
Stearns says Tshiksekedi could extend his influence to urban centres outside Lubumbashi and Katanga, where intellectuals support his political stance.
But beyond that, in the rural areas, he could be weakened trying to build alliances with local political leader driven by ethnic rivalry. It’s uncertain how much support he would have outside of Kinshasa.
Although he is generally lauded as a politician with principles, Tshiksekedi – who boycotted the last election which he decried as skewed and biased - will find it hard to counter his image as a withdrawn recluse, whose stubbornness and old age are working against him.
On the other hand, Dondo is the current president of the senate and is well-recognised, although his domestic popularity is weak and he may also be criticised for being too old. However, because he is respected and experienced, he may have the backing of Angola, who favour an economic alliance with DRC, which would allow him to build a larger campaign.
In any case, the elections come at a time of deep disillusionment with the political leadership.
In 2006, there was a high turn out for the first free elections, with hopes raised of a new leadership, new country and a new constitution. The enthusiasm slowly died as stagnation settled in and much remained the same year after year.
This report was produced by Anjana Sundaram and Blake Evans-Pritchard in The Hague, Heritier Maila in Lubumbashi and François Kadima in Kinshasa.
Posted by Michael Onyiego | Nairobi on 05 10 2010 | Leave a comment
As the International Criminal Court investigation into the 2008 post-election violence continues, Kenyan law increasingly is being used by opposition to block the court’s work.
Despite receiving the support of the Kenyan President and Prime Minister, ICC Prosecutor Luis Moreno-Ocampo has faced a series of high-level hurdles over the past month in his efforts to bring the organizers of the 2008 poll chaos to The Hague.
The latest in this series of frustrations is his request for documents detailing top-level security meetings during the violence. According to the Daily Nation newspaper, the government is considering withholding the minutes of Security Council meeting held before and during the crisis.
Moreno-Ocampo began his investigation into the poll chaos after nearly two years of inaction in Kenya. The secretary of the Law Society of Kenya, Apollo Mboya, said the obstacles facing the prosecutors only validate the need for an international mechanism for justice. Mboya said the opposition facing Moreno-Ocampo is not surprising.
“This is what we expected. The behavior is predictable. We expected it to go that way. But we think that the evidence that is there, even without the other crucial evidence that is required by the International Criminal Court is enough to bring people to account for the crimes they did,” said Mboya.
Mboya said the government was first required to prove to the ICC that the minutes requested by the prosecutor would harm national security if released. In that event, Mboya said agreements could be reached to keep the documents secret while still making them available for the investigation.
The prosecutor’s team has met with similar resistance from Kenya’s police. Trying to establish a police response to the election chaos, Moreno-Ocampo’s team has requested statements from Provincial Police Commissioners and Officers. Kenya’s Attorney General issued a directive for those summoned to comply with the ICC request. But the officers and commissioners have refused, arguing the request violates Kenyan law.
It is believed the summoned police are trying to avoid becoming scapegoats for the violence, and Mboya said the refusal indicates opposition to the investigation within higher levels of the government.
“I think it is a question of them feeling that they are more of a sacrificial lamb,” said Mboya. “That is why they are doing that. Provincial administration is answerable to the office of the president. So even as the attorney general gives the clearance, the main people who must actually give that authority for them to talk is the office of the president. The attorney general giving the clearance is just a whitewash that ‘I have done this’ but we know that these people - they do not report to the attorney general. They report to the office of the president through the ministry of internal security.”
Moreno-Ocampo is investigating alleged crimes against humanity that took place in the wake of Kenya’s December 2007 presidential elections. Then-rivals President Mwai Kibaki and Prime Minister Raila Odinga accused one another of vote rigging, which set off ethnic violence countrywide. More than 1,000 people were killed and 300,000 displaced in the two months that followed.
Moreno-Ocampo says his investigation is focused on those who plotted and executed the violence. The prosecutor plans to bring two cases against three suspects each when he presents his evidence to The Hague in December.
source: Voice of America
Posted by Rebecca TInsley on 04 10 2010 | Leave a comment
Evidently we are happy to work with Sudan’s Islamist regime as long as it restricts itself to killing its own people
It is hardly news when the red carpet is rolled out for an African trade delegation visiting London. But it is unprecedented when the delegation is led by officials whose president is wanted by the International Criminal Court on charges of genocide against his own citizens.
Since a coup brought him to power in 1989, Sudan’s President, Omar Bashir, has been ethnically cleansing Africa’s largest country of those who disagree with his Islamist ideology. Now Bashir’s regime wants closer economic ties with Britain. It is also pressuring Washington to drop economic sanctions and remove Sudan from the list of states sponsoring terror. And it wants its debt cancelled.
Why are the UK and US governments even considering the wish list of a man indicted for genocide? Because Bashir’s good behaviour is required as Sudan goes through momentous changes. Next January a controversial referendum is likely to split Sudan in two, giving the country’s main economic asset, its oil, to the new South Sudan.
As the Department for International Development and the Foreign and Commonwealth Office prioritise trade above all else, apparently there is no longer room for the protection of human rights. More than trade is at stake, however. The CIA looks to Sudan for intelligence on terrorist safe havens in nearby Somalia and Yemen, ignoring the inconvenient fact that Bashir’s regime shares a core philosophy with the Islamist militias it is supposed to be monitoring.
Many Sudanese are risking their lives to create a pluralist society, but the international community is sanctioning the actions of Bashir’s genocidal government. The UK must use its influence to hold Khartoum to the many yet-to-be enforced human rights measures in the peace deals and international conventions to which the regime is committed. Sudan’s version of political Islam despises free speech, independent thought, Jews, women, gays and, of course, moderate Islam. But evidently we are happy to work with Islamists if they restrict themselves to killing their own people.
Rebecca Tinsley is chair of Waging Peace.
source: The Independent
Posted by Richard Goldstone on 27 09 2010 | Leave a comment
SA leads the way in standing up against war criminals
UNTIL the last 15 years of the 20th century, international criminal justice did not exist. Since the establishment by the United Nations (UN) of the International Criminal Tribunal for the former Yugoslavia in 1993, the growth and development of international justice for war criminals has grown at a dramatic pace.
The successes of the Yugoslavia tribunal and the Rwanda tribunal that followed in 1994 were sufficient to spur many nations to move towards the establishment of a permanent International Criminal Court (ICC). They also spawned the so-called mixed or hybrid tribunals for East Timor, Sierra Leone, Cambodia and Lebanon.
These criminal courts demonstrated that international criminal justice can work efficiently, that fair trials in international courts are possible and that their work advances the development of the law. The most important development has been the prosecution of gender-related crimes and especially systematic mass rape.
The Rome Treaty of 1998 established the ICC. It required the ratification of 60 states to bring its provisions into operation. Even its most optimistic supporters did not anticipate that it would take less than four years for that to happen. SA has been one of the ICC’s most active supporters and helped gain important support from other governments in our region. The ICC became operational on July 1 2002. Today, there are 113 nations that have joined the ICC by ratifying the Rome Treaty. The African region leads, with 31 ratifications, followed by every member of the European region.
This wide support for the ICC was accompanied by the unexpected reference of its first investigations by three African governments — Uganda, the Democratic Republic of Congo and the Central African Republic. The court did not seek those referrals — those governments sought the intervention of the court. The fourth situation — that of Sudan and the crimes committed in Darfur — was referred by the UN Security Council itself. Only the fifth, Kenya, has come about as a result of the p rosecutor’s initiative.
This last situation arises from the violence that accompanied the 2007 elections in Kenya and followed a recommendation from former UN Secretary-General Kofi Annan and a Kenyan commission of inquiry.
The ICC became involved only after Kenya’s parliament decided not to set up its own domestic investigation.
It thus becomes apparent that the allegation that the ICC is in some way biased against African states or was set up to deal only with Africa is unfair and without substance. In addition, the prosecutor has made clear he is investigating other situations in Latin America and the Middle East.
The ICC operates on a system of “complementarity”. This means that the court has no jurisdiction at all in any case if the government of the nationality of the suspect is willing and able to investigate and, if there is sufficient evidence, to prosecute that person. Such a domestic investigation undertaken in good faith is conclusive regardless of the outcome and will deprive the ICC of any jurisdiction in the matter. The ICC is thus a court of last and not first resort. Modern international criminal law recognises that it is more appropriate for war criminals to be investigated and prosecuted by domestic rather than by international mechanisms.
The courts of Sudan are clearly not willing or able to investigate Sudanese leaders who have credibly been found by the ICC to be answerable for the most serious crimes, including genocide. The ICC has issued arrest warrants for a number of Sudanese leaders, including President Omar al-Bashir. The governments of nations that have ratified the Rome Treaty are legally obliged to arrest those people, To its credit, the South African government warned al-Bashir that should he visit SA, he stands to be arrested and handed over to the ICC. That is an obligation SA undertook when it ratified the Rome Treaty. It is also its obligation pursuant to the terms of a binding and peremptory resolution of the UN Security Council when it referred the Darfur situation to the ICC.
It is a matter of deep regret that Kenya failed to live up to those same obligations when al-Bashir recently visited Nairobi. Kenya has been roundly criticised for failing to uphold its international obligations. The only body that is able to sanction Kenya for flouting its international obligations is the s ecurity c ouncil. The law is clear and what is necessary is the political will to do something about it. The s ecurity c ouncil has the power and the right to impose appropriate sanctions against Kenya. If the s ecurity c ouncil fails to take such action, its own credibility will be called into question. It would be recognising the ability of member states of the UN to flout binding resolutions of the council.
Even in the absence of appropriate action by the s ecurity c ouncil, Kenya has made itself an international outlaw and has diminished its standing in the international community. Countries that do not uphold and implement their international obligations, seriously assumed, will undoubtedly suffer other prejudicial consequences, especially in the sphere of international trade and commerce. The adherence by nations to their international obligations is an important benchmark for major nations entering into trade and other relationships.
It was because of the system of complementarity that recognises the right of nations to investigate allegations against their own citizens that the UN and the European Union called upon Israel, the Palestinian Authority and Hamas to investigate the serious findings contained in the fact-finding mission on Gaza that I headed last year. Secretary-General Ban Ki-moon also called on the parties to hold independent domestic investigations into the conduct and consequences of the Gaza conflict.
In March, the UN Human Rights Council decided to establish a panel of independent experts to monitor the independence, effectiveness and genuineness of the investigations and their conformity with international standards. That panel is being led by one of Europe’s leading international lawyers, Prof Christian Tomuschat.
To date, Hamas has launched no investigations at all. The Palestinian Authority, for its part, did establish an independent domestic investigation and its findings were recently handed to the s ecretary-g eneral. The Israeli military conducted its own investigations behind closed doors. Those inquiries have confirmed some of the most serious incidents detailed in the Gaza report. Judgment on the extent to which the parties have carried out their international obligations in this regard must await the report of the Tomuschat panel. That report is soon to be presented to the Human Rights Council.
From the foregoing, it should be apparent that international criminal justice has developed at an impressive pace in recent years. At its core is the protection of civilians during times of war. Too many millions of innocent children, women and men have died in the wars that plague our planet. For too long there has been effective immunity for the war criminals responsible. That immunity is steadily being withdrawn as many nations join the ICC. South Africans should take pride in our government having been one of the leaders in this movement.
- A former judge of the Constitutional Court, Goldstone will be giving a public lecture reflecting on International Accountability for War Crimes on September 27 at the University of Johannesburg.
source: Business Day
Posted by SIR GEOFFREY NICE QC and JULIANNE KERR STEVENSON on 20 09 2010 | Leave a comment
It is time for the UN to investigate the consistent reports of mass human rights violations in Burma to enable the identification of those responsible. The failure to take this step is unjustifiable. For decades NGOs and UN actors have documented reports of extrajudicial killings, sexual violence, torture, mass internal displacement, sexual violence, the use of child soldiers and forced labour, and the list goes on. The scale and gravity of the violations reported strongly suggests that they amount to war crimes or crimes against humanity.
Yet, although it is undeniable that mass violations have been, and continue to be, perpetrated primarily by the Burmese military junta but also by armed ethnic groups, those who commit these alleged international crimes do so with absolute impunity. This impunity will not end without a UN initiated investigation specifically aimed at obtaining evidence in order both to clarify the true extent of the atrocities, but also to obtain evidence linking an individual to a specific crime in order to establish accountability. Once such evidence has been obtained, it will be a question of whether the UN and the international community will have the necessary political will to bring the perpetrators to justice.
There is strong evidence of mass human rights atrocities in Burma. In May 2009 the International Human Rights Clinic at Harvard Law released the report, Crimes in Burma, which highlighted the fact that for fifteen years, numerous UN actors, such as the Special Rapporteur for Burma, the General Assembly and Commission on Human Rights had raised considerable concern over the perpetration of grave human rights violations in the country. A former Special Rapporteur for Burma reported that he had received information indicating the military regime had destroyed, forcibly displaced, or forced the abandonment of over 3,000 villages in eastern Burma where ethnic minorities predominate. Further, that at least one million people fled their homes because of the attacks, escaping as refugees and internally displaced persons.
Reports of mass human rights atrocities have continued since the release of the Crimes in Burma report. Just one of the many examples available is provided by the Special Rapporteur’s comments on the situation in the Shan state in his report of March 2010:
“The Special Rapporteur is alarmed by the dire human rights situation in Shan State. Since 27 July 2009, it is reported that the military have burned down over 500 houses and scores of granaries, and forcibly relocated almost 40 villages, mostly in the Laikha township. According to reports, over 100 villagers, both men and women, have been arrested and tortured. At least three villagers have been killed. This would be the largest forced relocation since 1996–1998, when over 300,000 villagers in southern and central Shan State were displaced.”
UN actors have also highlighted the pervasive culture of impunity that perpetrators enjoy, observing a general failure to investigate allegations of abuse, the threat of reprisals for those who report abuses, the failure to prosecute those responsible, and the lack of an independent judiciary.
However, NGOs and UN actors face tremendous difficulties in obtaining the evidence from victims and others in Burma, which would establish the full extent of the atrocities committed and allow for the identification of, and obtain evidence against, individual perpetrators. For example, the Special Rapporteur’s last visit to Burma on 15 January 2010 was limited to a mere five days, and he was provided with his programme on a daily basis by the government. Such a limited and controlled investigation cannot hope to establish the true extent of the situation. Further, it is unable to provide the detailed evidence directly linking a perpetrator to an alleged crime, which is required to establish individual responsibility.
This reality has been recognised by two former Special Rapporteurs for Burma, who have come out in support of the call for a Commission of Inquiry into the issue of international crimes in Burma, as well as the current rapporteur, Tomas Ojea Quintana. He stated in March this year that:
“Given the gross and systematic nature of human rights violations in Myanmar [Burma] over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.
The mere existence of this possibility obliges the Burmese government to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, UN institutions may consider the possibility to establish a Commission of Inquiry with a specific fact-finding mandate to address the question of international crimes.”
Thus, on the issue of whether the reported mass violations amount to international crimes, the Special Rapporteur’s statement that the evidence he has received of the incidents of sexual violence, extrajudicial killings and torture suggests that they are widespread, systematic and part of a deliberate strategy to terrorise and subjugate civilians, clearly supports such a conclusion.
Although such statements may in of themselves be insufficient to bring individuals to trial, it should be recognised how strong the supporting evidence for war crimes and crimes against humanity actually is in the Burma context. In addition to the assessments by the various reliable UN bodies referred to in the ‘Burma Report’ much information has been provided by various NGOs, not all of whom are dependent upon second hand sources for what they report (however cautious they may have to be about explaining how they obtain first-hand ‘in-country’ intelligence and providing anonymity to the victims and witnesses spoken to).
There has been no effective counter from the regime to the allegations made and no effective and independent inquiry of any kind has been published that suggests the allegations reported by the UN and other bodies are wrong. It is, of course, a reality that those applying the (international) rule of law and who therefore proceed on the basis of evidence are at a disadvantage in comparison to those who resist the provision of information about crimes, supported as they may be in this approach by the political interests of patron states.
We have little, if any, doubt about the strength of the underlying evidence and thus of the fact that very serious crimes have been and are being committed in Burma. This is the reason we – and many others – are pressing for political action that will render impossible the continued blocking of truth by political action or inaction.
It is therefore imperative that a Commission of Inquiry is established by the UN. Such a Commission could be established directly by the UN Secretary General, which was the route adopted in the case of the Bosnian war crimes commission in the early 1990s. It could also be established by the Security Council, though this procedure is obviously susceptible to a veto by permanent members such as China.
The necessity of such a step has been recognised by some members of the international community. These include the USA, Canada, Australia, Slovakia and the Czech Republic. It is to be hoped that other nations, in particular those on the Security Council, will adopt the same stance.
In the event that a Commission of Inquiry was established there is every reason to believe that it would obtain evidence of mass international crimes. Moreover, a properly functioning commission should be able to gather evidence establishing the accountability of both the perpetrators in the field and those exercising command and control over the strategy of terror.
The inevitable question that would arise once the Commission identified the perpetrators at all levels of command and obtained sufficient evidence against them would be: will the international community bring the perpetrators to justice? It is impossible to answer this question conclusively. Whether the perpetrators of the mass human rights atrocities would be brought to trial is entirely dependent upon the will of the international community.
At this time, there is no indication that the Burmese government will take any genuine and effective steps to end the prevailing culture of impunity in Burma. Further, Burma is not a State Party to the International Criminal Court, and so for alleged perpetrators to be tried by this institution the Security Council would have to refer the situation to the Court. It must not be under-estimated how difficult this would be to achieve. Again, such a procedure is susceptible to a veto by a permanent member of the Security Council – the most obvious concern of course being China. It must be hoped that the political will demonstrated by a future establishment of a Commission of Inquiry would carry through to prosecution of those it identified.
It seems clear, therefore, that if a UN Commission of Inquiry was initiated it would not be a lack of evidence that would prevent trials of alleged perpetrators of mass human rights atrocities in Burma; rather a lack of the necessary international political will by the UN and its member states.
Sir Geoffrey Nice QC is co-Commissioner of the Harvard International Human Rights Law Clinic Report Crimes in Burma. Sir Geoffrey worked in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and was the lead trial attorney in the prosecution of Slobodan Milošević.
Julianne Kerr Stevenson is co-author of the Harvard International Human Rights Law Clinic Report Crimes in Burma and Member of the Bar.
They write on behalf of the Burma Justice Committee.
source: Democratic Voice of Burma
Posted by LUCAS BARASA on 20 09 2010 | Leave a comment
A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.
Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.
The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”
But the Minister’s proposal, raised in an interview with the Sunday Nation, drew immediate opposition from the Law Society of Kenya and Government Chief Whip Jakoyo Midiwo.
Law Society chairman Kenneth Akide also disagreed with Mr Kilonzo, saying the new Constitution requires that Kenya respect agreements it had signed, including the Rome Statute that created the ICC.
“The ICC has not been replaced because of the new Constitution,” Mr Akide told the Sunday Nation by phone from China.
He said the judiciary and police were yet to be transformed to effectively deal with post-election violence suspects. He added that, contrary to Mr Kilonzo’s assertion, the judiciary “has always existed, but the country sought ICC intervention because of lack of political will to prosecute the suspects.”
In an exclusive interview, Mr Kilonzo said the administrators of the Hague-based court should know that Kenya now has a “new prosecutorial system and a new police under a new Constitution.
“I’m totally convinced. One million per cent convinced. The case before the ICC has not yet been admitted. It can only be admitted after (ICC chief prosecutor Luis Moreno) Ocampo finishes his investigation.
“I advocate a local tribunal partly because I’m a Kenyan, and I cannot entertain the idea of a foreign court having to investigate a fellow citizen on offences committed against fellow citizens,” Mr Kilonzo said.
“Under Articles 2, 4, and 5 of the new Constitution, we can now tell the world: If we appoint a new director of public prosecution, a new broom will sweep clean,” he said.
He said the Bill on vetting sitting judges and recruiting new ones, which would also look at “their temperament, their history and everything else”, was in place.
Mr Kilonzo, who has been at the forefront of pushing for the prosecution of post-election violence suspects, said the panel conducting the vetting of judges could have access to advice from intelligence services, the police, the office of the Attorney-General, and the Advocates Complaints Commission.
An ICC delegation is expected in the country next week. Mr Kilonzo’s comments come at a time when a more robust ICC process is at play as Mr Moreno-Ocampo appears keen to complete his investigations of key post-election violence suspects by the end of the year.
He is expected in the country in the next few weeks to bolster the ICC investigations. The ICC process was for some time overshadowed by the August 4 referendum, but it is now in high gear after the signing two weeks ago of an agreement to allow the court to set up an office in Kenya.
A section of the Cabinet is unenthusiastic about the ICC, while other ministers are pushing for charges against perpetrators of the violence that left 1,133 people dead.
The ICC’s actions could dramatically affect the country’s political scene as some of those mentioned in connection with the violence harbour plans to run in the 2012 General Election.
Mr Kilonzo said potential witnesses have been given protection in several places, but any trials could be carried out locally.
“My challenge to Kenya is this: You gave yourselves a beautiful gift on August 27. Give yourselves another one by telling the world through the institutions that we created to keep off,” Mr Kilonzo said.
The minister said he was personally unhappy with the way the country had dealt with the thousands of Internally Displaced Persons and that he would have liked a special division of the High Court to deal with the matter.
“Ocampo and ICC cannot solve that. It’s a Kenyan issue,” he said.
Mr Kilonzo has twice presented a Bill to the Cabinet to establish a special tribunal to deal with post-election violence cases, but it was not approved.
Another effort to establish a local tribunal in Parliament was similarly defeated, opening the way for the International Criminal Court to step in.
Having served on the National Dialogue and Reconciliation Commission, popularly known as the Serena Team, Mr Kilonzo also expressed concern that some politicians had rushed to announce their interest in senate seats and governorships “without realising that a huge number of Kenyans are living in deplorable conditions”.
Mr Midiwo said victims of post-election violence want resettlement and justice.
“The ICC was not coming here to force us to do a new Constitution. It came because the government failed its people. What am I supposed to tell my people whose relatives were killed,’’ he said.
Mr Kilonzo’s comments are likely to rub civil society the wrong way as well as other proponents of the ICC who wanted it to speedily deal with the Kenyan case.
Kenya National Commission on Human Rights chairperson Florence Jaoko-Simbiri said the country still needs the ICC, the new Constitution notwithstanding, as Kenya is a signatory to the Rome Statute.
“The country has not only domesticated the Rome Statute; the government has also made commitments to the ICC. I don’t see how the new Constitution prevents the ICC from coming,” she said.“Judicial reforms will take a while before being enacted. It will also take time before changes in police take place to facilitate credible investigations,” Simbiri said.
Nairobi lawyer John Mureithi Waiganjo said the government was mandated to cooperate with the ICC.
“The ICC has to continue with investigations and prosecute the culprits. It is wrong for the minister in charge of Constitutional Affairs and Justice to relate the new Constitution to the post-election violence. It was criminal and an offence against humanity,” he said.
In February last year, Parliament shot down a government Bill to set up a local tribunal to investigate the violence. The Bill sought to entrench the tribunal in the Constitution but was supported by only 101 MPs, far short of the 145 required to amend the law.
In opposing the Bill, MPs cited a lack of confidence in the judiciary and the potential danger that a local tribunal could spark ethnic tensions.
source: The Daily Nation
Posted by JAMES TRAUB on 20 09 2010 | Leave a comment
Team Obama has just offered Sudan’s genocidal tyrant one last olive branch. A hickory switch might work better.
This past Tuesday, when the punditocracy was raptly focused on the electoral results in Delaware and New Hampshire, the U.S. State Department quietly issued a policy statement on Sudan that offered the government of President Omar Hassan al-Bashir a path to escape sanctions and restore normal relations with the United States.
Why no fanfare? Perhaps an administration highly sensitive to accusations of equivocation in the face of evil was reluctant to call attention to a policy that emphasized carrots rather than sticks—or rather, to use the splendidly mangled metaphor of one administration official, offered to the regime in Khartoum “a carrot painted with a finer degree of granularity.” Bashir, who has been indicted on genocide charges by the International Criminal Court, doesn’t deserve a carrot. But the Obama administration has rightly concluded that absent strong inducements, deserved or not, from the United States and other key actors, the regime in Khartoum could well plunge Sudan back into a horrendous civil war.
In January 2005, the regime and the breakaway government of the south put an end to almost 40 years of war by signing the Comprehensive Peace Agreement. The CPA gave southerners the right to choose independence or greater autonomy within Sudan. The referendum in which they will make that choice is scheduled for Jan. 10, 2011, and no one doubts that voters will overwhelmingly choose the former—if the referendum is held, and conducted honestly. But Khartoum appears to have no intention of permitting that. Oil has turned Sudan into a boom economy, and 80 percent of the country’s oil is located in the south. Moreover, the regime fears—with good reason—that granting independence to the South would embolden other regional insurgencies.
Suliman Baldo, a Sudanese scholar with the International Center on Transitional Justice, says that the Bashir government has been orchestrating a domestic media campaign to promote the fiction that all Sudanese seek national unity—and thus that a vote for independence is intrinsically illegitimate. Baldo and others fear that if Khartoum blocks or refuses to recognize the election, provoking the government of the South to unilaterally declare independence, the decades-long civil war that led to the deaths of two million people will resume.
The Obama administration has responded to this apocalyptic prospect with a belated, but very concentrated, diplomatic surge. Both Secretary of State Hillary Clinton and National Security Advisor James Jones have spoken with Salva Kiir, the southern leader, and Ali Osman Taha, Sudan’s vice president, urging them to make progress on the terms laid out in the CPA, which they have so far failed to do. President Obama announced last week that he would personally attend a U.N. Security Council session on Sudan chaired by Secretary-General Ban Ki-moon during the upcoming General Assembly meeting; that in turn has persuaded other heads of state, as well as Kiir and Taha, to attend. The administration has beefed up its diplomatic representation in Sudan, in part by naming Princeton Lyman, a veteran diplomat with long experience in Africa, to work with the two sides. And last weekend Scott Gration, Obama’s special envoy to Sudan, went to Khartoum to deliver the administration’s new offer.
That offer is at the heart of the strategy document released earlier this week. Gration presented the regime with four ascending “stages” of granularized carrot. The administration will immediately change the rules governing the export of agricultural equipment to Sudan, now tightly controlled by sanctions. “Previously there had been an assumption of no,” a White House official explained to me. “Now we’re going to shift to an assumption of yes.” This is, in effect, a gift for showing up—no strings attached. If the regime permits the referendum to proceed and respects the outcome, the White House will lift further trade restrictions (though not on the all-important oil sector). If Khartoum also reaches agreement on key North-South issues, including the drawing of boundaries and sharing of oil revenue, Washington will appoint an ambassador (the last ambassador, Timothy Michael Carney, was withdrawn in 1996 after Sudan was declared a state sponsor of terrorism). Only, however, if Khartoum also resolves the Darfur conflict does the administration promise to seek full normalization and the lifting of sanctions.
Administration officials present the package as an “intensification” of existing diplomacy, but that is slightly disingenuous. After long, and reportedly heated, arguments inside the White House over the proper balance between carrot and stick, officials have produced a document that is highly specific about inducements and carefully vague about threats. Despite veiled references to “accountability,” the statement is silent on the ICC indictments. And after much discussion over whether it’s acceptable, or effective, to address the North-South conflict separately from Darfur, the administration plan will allow Khartoum to profit from compliance on North-South issues, though Bashir wins the jackpot only for restoring peace to Darfur.
Some, though not all, members of the advocacy community are appalled at the decision to, quite literally, let the regime get away with murder. John Norris, a Sudan expert at the Center for American Progress and former head of the Enough Project, calls the package “unseemly.” Norris points out that in 2005 Western diplomats made a calculated decision to bless the North-South peace agreement even as the regime perpetrated mass slaughter in Darfur. Indeed, from the very beginnings of the killings in Darfur, in 2003, Bashir responded to pressure from the West by threatening to scuttle negotiations over ending the civil war. “Once again,” Norris says, “you’ve got a bunch of diplomats saying that this current situation is so serious that we need to ignore all this other stuff.”
So there is both a moral case and a strategic case against offering Khartoum goodies in exchange for behaving itself on the referendum. But if the derailing of the referendum really would lead to mass killing (and some experts I spoke to are skeptical on this score), then it’s patent that the moral imperative is to give Bashir incentives to behave himself, and to leave the issue of just deserts to a future date. The only real question is effectiveness. A number of studies (pdf) have concluded that marginalizing Darfur to get the CPA signed was a disastrous mistake that sent Bashir a signal that he could do as he wished with the people of Darfur. Why is it correct now?
Gration was foolish enough to say earlier this year that what remained in Darfur, seven years after the killing broke out, was only “the remnants of genocide.” He was quickly forced to retract the comment in the face of outrage from activists. But he was right. Civilians in Darfur still live in a state of terror, and millions remain displaced; but much of the killing now pits rebel groups, or Arab tribesmen, against one another. On the other hand, the steadily rising levels of violence in the South, much of it probably instigated by Bashir and his colleagues, could explode into the kind of mass ethnic reprisals provoked by the partition of India and Pakistan in 1948. As a State Department official puts it delicately, “There is a sense of urgency on both Darfur and the CPA, but there is a growing sense of immediacy on North-South issues.” The situation in 2005 was the exact opposite.
That said, Bashir must be made to feel that there is a powerful, and imminent, “or else.” So far, the Obama team has hesitated to make threats. Gration in particular has been far too willing in the past to accept the regime’s bona fides, as if unaware of the bland reassurances and bald-faced lies that frustrated his predecessors. Even now, he and his team may be putting too much stock in the influence of “moderates” inside the ruling National Congress Party, whom Western officials have been banking on—fruitlessly—for years. Bashir is likely to “accept” the State Department’s proposal, and then add onerous conditions of his own. A White House official insists that the administration is prepared for that eventuality, and adds that the ability to marshal an international response in case of rejection is “a very important part of the thinking” that went into the new offer. As with Iran, that is, the regime’s rebuff of what is seen as a fair offer will help the United States build the case for tougher sanctions than those Sudan now faces.
Will Bashir be suitably impressed by that prospect? Over the years, he has blithely ignored Security Council resolutions, sanctions, threats of prosecution, and global public opprobrium. He has learned all too well how to exploit the weakness of international diplomacy. Now he holds a lit match over a vast bonfire. Perhaps he fears the consequences of flicking it on to the pyre, but the irresolute response of years past have ensured it’s his choice—and his alone.
source: Foreign Policy
Posted by alejandro on 20 09 2010 | Leave a comment
September 16, 2010 (KHARTOUM) – A meeting of the Arab league foreign ministers today endorsed a resolution reaffirming its position in rejecting the arrest warrant issued by the International Criminal Court (ICC) against the Sudanese president Omer Hassan Al-Bashir for war crimes and genocide allegedly committed in Darfur.
An Arab Ministerial Committee on the affairs of the Sudan expressed solidarity with Sudan and face of the ICC’s decisions and called annulling the warrants noting that Sudan is not a member of this Court.
The committee which is comprised of Egypt, Algeria, Saudi Arabia, Sudan, Libya, Qatar, Sudan, UAE, Oman and Syria slammed “attempts to politicize the principles of international justice and used in the erosion of State sovereignty , unity and stability”.
The ICC’s first-ever warrant against a sitting head of state was issued for Bashir in March 2009 on charges of war crimes and crimes against humanity. The second was issued in July 2010 on charges of genocide.
The United Nations says up to 300,000 people have died since conflict broke out in Darfur in 2003, when ethnic minority rebels took up arms against the Bashir’s Arab-dominated regime for a greater share of resources and power.
Posted by Rebecca Hamilton on 15 09 2010 | Leave a comment
KHARTOUM, Sudan - A referendum on whether oil-rich southern Sudan breaks away to become Africa’s newest nation is scheduled to take place in less than four months. But with negotiations between north and south stalled over border demarcation, and preparations for the vote lagging perilously behind, the likelihood of the referendum proceeding as planned appears slim.
Analysts fear that any delay could trigger a return to the decades-long civil war that resulted in the deaths of an estimated 2 million people, primarily southerners.
Sudan’s Islamist government, headed by President Omar al-Bashir, appears reluctant to let go of oil fields that have helped it survive U.S. economic sanctions first imposed in the 1990s after Sudan was designated a state sponsor of terrorism. The loss of territory in resource-rich southern Sudan would have grave economic consequences for the north, analysts say.
According to Fouad Hikmat, the International Crisis Group’s special adviser on Sudan, the government says the referendum cannot take place until agreements are reached on issues related to its economic future.
“If these negotiations fail for whatever reasons, the referendum will be in jeopardy,” Hikmat said.
Earlier this month, the Obama administration boosted its efforts to mitigate the looming crisis, dispatching veteran diplomat Princeton Lyman to join U.S. special envoy Scott Gration in Sudan.
The U.S. government has long been committed to the right of self-determination for the predominantly animist and Christian population of southern Sudan.
In 2001, pushed by an advocacy coalition led by U.S. evangelical and African-American churches, former President George W. Bush made bringing peace to the region a foreign policy priority. His administration helped secure a 2005 peace agreement, which established a power-sharing government that was supposed to lead Sudan from dictatorship to democracy. After a six-year interim period of semi-autonomous-rule, the south was to vote in 2011 on whether to remain part of Sudan or secede.
But with international attention on a separate crisis in the Darfur region of Sudan, and relations between north and south marked by mistrust, the benchmarks set out in the agreement fell behind schedule. In April, a national election that had been delayed twice, and that most opposition parties boycotted, handed Bashir—who had been indicted by the International Criminal Court - an electoral victory.
The ruling National Congress Party now says the referendum cannot take place until the border has been demarcated. But members of an 18-person Technical Border Committee representing both sides have been unable to reach a final agreement on the boundary.
Battle over resources
Stretching from the Central African Republic in the west to Ethiopia in the east, the 1,200-mile border region between north and south is among the most resource-rich and ethnically diverse areas of Sudan. Predominantly Arab pastoralists from north of the border who journey southward each year to graze their livestock fear that demarcation will prevent their seasonal movement.
The border committee has agreed on about 80 percent of the border, the Sudanese minister of cabinet affairs, Luka Biong, said in an interview in Khartoum. But the parties have reached an impasse regarding five areas where the majority of Sudan’s oil wealth lies, he said.
One of the contested areas encompasses the Heglig oil fields outside the border town of Abyei, where tensions between resident southern Ngok Dinka farmers and northern Misserya pastoralists are particularly high.
“Heglig belongs to the south. It is in Unity State,” said Edward Lino, a Ngok Dinka and former administrator of the Abyei area.
Gen. Babo Nimer, brother of the paramount chief of the Misserya people, was equally adamant: “Heglig belongs to Kordofan, to the north. Full stop.”
Oil exploration in Sudan began in the 1970s. According to a 2010 survey by BP, Sudan is the third-largest oil producer in sub-Saharan Africa, currently producing 490,000 barrels per day. The Sudanese minister of petroleum, Lual Deng, said that more than 80 percent of Sudan’s current oil reserves lie in the south.
Under the peace accord, the parties agreed to split the proceeds from the oil fields until the 2011 referendum. According to figures published by the Sudanese government, oil revenue accounted for about $2.8 billion of its budget last year and an estimated 60 percent of this year’s budget.
Deng, one of the few southerners with a ministerial position in the post-election government, said he fears that an immediate budget cut for the north would ignite a war. “In order to avoid conflict, we could look to a phase-out arrangement whereby you provide the north some [oil] until they get an alternative,” he said.
The pipeline to export southern oil currently cuts through the north, and the south has not begun construction on a pipeline that would avoid that route. But an interim agreement could help both north and south, Deng said.
“We can have a win-win,” he said.
Delay in vote preparations
On the logistical front, officials say that planning for the referendum is far behind schedule.
“We have not started,” the referendum commission’s head, Mohamed Ibrahim Khalil, 85, said in his dilapidated law office in downtown Khartoum.
Khalil was appointed only in July because the north and south had been unable to agree on the composition of the commission. The secretary general of the commission, responsible for its budget, was appointed this month.
In the short time left before the referendum, the commission must organize voter registration across southern Sudan, a vast area desperately lacking in basic infrastructure. Khalil said that in addition to overseeing voter registration in south Sudan, his commission must ensure that voting centers are established in all areas where more than 20,000 southern Sudanese reside.
During the war years, those who could flee the fighting did. Many headed to the relative safety of northern Sudan. Others relocated to countries around the world, including more than 150,000 in the United States. The commission must ensure all of these people get the chance to vote.
Khalil said preparation for the vote does not fit in the remaining time frame. But rather than push for a delay, he said that for now at least, his role is to make it work.
Hamilton is a special correspondent in Sudan on a grant from the Pulitzer Center on Crisis Reporting.
source: The Washington Post
Posted by ERIC SHIMOLI on 03 09 2010 | Leave a comment
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
Posted by ALAN COWELL on 27 08 2010 | Leave a comment
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
Posted by AFP on 15 07 2010 | Leave a comment
KHARTOUM — Darfur’s rebel Justice and Equality Movement said Tuesday it was locked in fresh fighting with Sudan’s army, a day after the International Criminal Court charged President Omar al-Beshir with genocide.
“Early this morning… 60 four-wheel drive vehicles of Sudan’s army and militia obstructed JEM patrols near Kuma, North Darfur, JEM spokesman Ali Alwafi told AFP.
“The genocidal forces lost the battle and fled to Kuma. Our forces pursued them into the town and destroyed their military camp and captured 34 well-equipped vehicles,” he said.
The United Nations and African Union peacekeeping mission in Darfur, or UNAMID, said it was aware of reports that clashes had broken out between JEM and the Sudanese army.
“UNAMID has received as-yet unconfirmed reports of clashes between government forces and the Justice and Equality Movement in North Darfur. Verification missions are planned to confirm these reports,” it said.
The Sudanese army could not be reached to confirm or deny the reports.
On Monday, the army reported clashes involving JEM, one of the most militarised groups in Darfur, and its soldiers in the strategic Adula region between South Darfur, North Darfur and nearby North Kordofan province.
The fighting came as the International Criminal Court announced it has decided to add genocide to the charges against Beshir, who is already wanted since March 2009 for war crimes and crimes against humanity over his role in Darfur’s war.
Darfur, an arid desert region the size of France, has been gripped by a civil war since 2003 that has killed 300,000 people and displaced another 2.7 million, according to UN figures. Khartoum says 10,000 people have died.
Posted by Colum Lynch and Rebecca Hamilton on 14 07 2010 | Leave a comment
The International Criminal Court’s judges on Monday charged Sudanese President Omar Hassan al-Bashir with orchestrating a bloody campaign of genocide against Darfur’s three main ethnic groups, the first time the Hague-based court has accused a sitting head of state of committing the most egregious international crime.
The three-judge pretrial chamber issued a formal arrest warrant for Bashir—the second time it has done so—on three counts of genocide. They include the crime of targeted mass killing, the causing of serious bodily or mental harm to members of a target group, and deliberately inflicting conditions of life calculated to bring about the group’s physical destruction. “There are reasonable grounds to believe that Mr. al-Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups,” the judges concluded.
The decision provided a degree of vindication to the United States, which has stood largely alone in characterizing the killing in Darfur as genocide. It also gave a boost to the court’s Argentine prosecutor, Luis Moreno-Ocampo, whose pursuit of the Sudanese leader has generated intense opposition from other African and Arab leaders. Moreno-Ocampo suffered a setback this month when his case against another alleged war criminal, the Congolese warlord Thomas Lubanga, was suspended for a second time.
Sudan’s U.N. ambassador, Abdalmahmood Abdalhaleem Mohamad, dismissed Monday’s ruling as a politically motivated effort to undercut prospects for peace in Sudan and vowed never to surrender Bashir. “We condemn this in this strongest terms; it will only harden our resolve,” he said in an interview. “This court’s objective is to destroy chances for peace in Sudan; we’re not going to be bothered by it.”
Moreno-Ocampo said he welcomed the decision, which essentially reverses a previous ruling by the pretrial chamber to reject the genocide charges. He said the new ruling honors the victims of the mass killing in Darfur, a vast region in western Sudan. It may impose new obligations on states that have signed the Genocide Convention, including the United States, to cooperate with the court in its effort to arrest Bashir, Moreno-Ocampo added.
The court issued a previous arrest warrant against Bashir in March 2009, on seven counts of war crimes and crimes against humanity. Sudan, which has never ratified the treaty establishing the criminal court, has refused to surrender Bashir, who was reelected this year in a U.N.-backed election to a five-year term.
The violence in Darfur began in early 2003 when two rebel groups took up arms against Sudan’s Islamic government, citing a legacy of bias against Darfur’s ethnic tribes. In response, Khartoum organized local Arab militias, the Janjaweed, to help crush the resistance and its followers. The United Nations estimates that as many as 300,000 civilians died as a result of violence or hardships brought on by the forced displacement of nearly 2 million Darfurians.
source: The Washington Post
Posted by Aaron Gray-Block; editing by Philippa Fletcher on 11 06 2010 | 1 comment
June 12 (Reuters) - Member states at a Kampala review conference of the International Criminal Court have agreed on how the court could investigate crimes of state aggression, such as an invasion or an attack on another nation.
Below are questions and answers on the move and what it means for the ICC, the world’s first permanent war crimes court.
HOW IS SUCH A CRIME DEFINED?
The crime of aggression was included in the 1998 Rome Statute which set up the court, listing aggression crimes along with genocide, crimes against humanity and war crimes as one of the four grave crimes the ICC has jurisdiction over.
It is broadly defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation.
WHAT WAS DECIDED?
Delegates decided that the Security Council, the ICC and states should all have a role in deciding whether an investigation into an act of aggression should take place.
But the compromise deal gives the court at least seven years before it would gain the authority to prosecute the crime of waging an aggressive war and it depends on further agreement between ICC member states before taking effect.
That agreement cannot take place before January 1, 2017.
WHAT ARE THE DRAWBACKS?
Allowing the ICC to prosecute state aggression risks involving the court in political disputes between states because a decision to go to war can be an inherently political decision.
Observers also say allowing ICC jurisdiction over aggression could arm critics who say the court is a political jurisdiction.
The United States, which is not a member of the court, is also wary its troops could be prosecuted for the use of force in trying to end war crimes the ICC is mandated to prosecute.
It has argued that there are uncertainties and ambiguities in the definition of the crime of aggression and that judges would find it difficult to reach a ruling.
Japan warned that the deal amending the Rome Statute that set up the court is based on a “dubious legal foundation” and raised concerns non-member states are shielded from being investigated.
Some critics say the court is too young to take on the political risks as it is still trying to fully establish itself.
WHAT ARE THE BENEFITS?
The deal gives a limited extension to the court’s reach by allowing it to prosecute the crime of waging an aggressive war.
Proponents said the deal avoided giving control to the U.N. Security Council over the court’s authority in respect to aggression crimes after earlier warning that giving the council control over such probes could reduce the court’s independence.
The deal also gives the court at least seven years to strengthen itself and prepare for its new powers.
Observers say the crime of aggression is based on well-established international law and if the ICC had the power to prosecute aggression this could serve as a strong deterrent.
Enabling the ICC to investigate aggression could benefit both powerful and weaker states by affording better protection against one state from being invaded while protecting a powerful state from being turned into an aggressor by criminal leaders.
While the court has the powers to prosecute war crimes, crimes against humanity and genocide, some observers say the court is incomplete if it does not have the jurisdiction to proseute state aggression, which often leads to war crimes.
HOW WOULD INVESTIGATIONS BE TRIGGERED?
The agreement stipulates that the U.N. Security Council would have first say in whether an investigation into an act of aggression should take place.
Other options at the Kampala conference for triggering an investigation had initially included a vote of the U.N. General Assembly, a ruling at the International Court of Justice in The Hague or a ruling handed down by ICC judges.
Eventually, delegates decided that either the Security Council, the ICC or state referral would have the power to trigger a probe.
Member states will need to decide after January 1, 2017 on the entering into force of the court’s new jurisdiction.
But state parties can also “opt-out” of allowing the ICC to have jurisdiction by lodging a declaration with the court. States that opt-out must reconsider the declaration.
(Reporting by Aaron Gray-Block; editing by Philippa Fletcher)
Posted by Anita Brooks on 08 04 2010 | Leave a comment
Crusading judge who challenged Pinochet could be barred for 20 years after far right bring charges against him
To his supporters abroad, Baltasar Garzón is a hero, a legal crusader who has dared to investigate the abuses of right-wing Latin American dictatorships, starting with the 1998 arrest of Chile’s Augusto Pinochet.
To many in Spain, the 54-year-old high court judge, forever flanked by bodyguards, is his country’s gutsiest watchdog, the nemesis of drug lords, corrupt politicians and violent Basque separatists. But after two decades of crusading, Mr Garzón has also attracted criticism for what some see as his cavalier, headline-grabbing indictments, including one against Osama bin Laden. And now his detractors are having their day.
Mr Garzón was charged yesterday with abusing his powers by launching Spain’s first-ever investigation into Franco-era abuses – namely the forced disappearance of 114,000 victims on the losing Republican side of the war. In a 14-page ruling, Spanish Supreme Court investigating magistrate Luciano Varela charged Mr Garzón with recklessly violating a 1977 amnesty law that shielded members of the Franco regime from legal persecution.
“This is a sad day for justice,” said Emilio Silva, president of the Association for the Recovery of Historic Memory, which has led a volunteer drive to exhume the mass graves of Republican victims. In an interview on national radio, Mr Silva blamed the decision to prosecute Mr Garzón on the ultra-conservative leanings of the Spanish Supreme Court, which, he said, had failed to evolve since Franco’s time.
Mr Garzón is expected to face trial next month. If he is found guilty, he could be barred from the bench for up to 20 years. “I will continue to defend my absolute innocence,” he said last month when an appeal was rejected.
The lawsuit is one of three now pending against the judge, one of which takes aim at his corruption inquiry into the opposition Popular Party. It was brought before the Supreme Court by three extreme-right groups, including the Falange de las Jons, a modern splinter group of the Franco-era fascist party of the same name.
“It’s like the end of a farce,” said Francisco Espinosa, a historian who served on an advisory committee for the investigation. “The same people that participated actively in the failed coup of 23 February 1981 and in the repression under investigation are precisely the ones bringing the complaint, and the Supreme Court, instead of shelving it, gives the green light.”
One of the especially bizarre by-products of the lawsuit, Mr Espinosa added, is that the ultra-right groups now have access to reams of testimony by victims’ families. “There are families who have asked to withdraw their information before it falls into the hands of these people,” Mr Espinosa said.
Mr Garzón is expected to be removed from his judicial post until the verdict – to the delight of the high-ranking members of the opposition Popular Party he had been investigating and the satisfaction of his critics, who sarcastically call him the “super judge”. The conservative daily ABC described the saga as “the chronicle of a professional death foretold” – the logical result of many ego-driven investigations in which the judge supposedly “skidded on ice”. “Garzón isn’t going to get out of this one,” the Falange leader, Jorge Garrido, gloated to El País.
Many in legal circles are outraged, however, by what they consider an orchestrated attempt by the judge’s enemies to remove him from the bench. “If he is eventually suspended, it will be one of the most serious defeats for Spanish justice during the democracy,” Carlos Jiménez Villarejo, a former state anti-corruption prosecutor, said. Mr Villarejo has organised Garzón tributes throughout the country, which have attracted legal scholars, artists and intellectuals such as Nobel winner José Saramago.
Mr Garzón has used Spain’s “universal jurisdiction” principle to take on thorny – and diplomatically awkward – cases ranging from Argentina’s “Dirty War” executions to tortures at Guantánamo Bay. But he embarked on the most perilous investigation of his career in October 2008 when he rattled the ghosts of Spain’s bloody past. The crusading magistrate accused former dictator Francisco Franco and 34 of his former generals and ministers of crimes against humanity in relation to the 114,000 forced disappearances and ordered the exhumation of 19 mass graves.
At first, Mr Garzón was merely accused of opening old wounds and violating the so-called “pact of forgetting” that marked Spain’s peaceful transition to democracy. Under pressure from state prosecutors, he eventually passed responsibility for opening the graves to provincial courts (who have largely ignored the matter). But last year, anger at the investigation morphed into concrete form: the accusation of “prevarication,” or ruling with knowing disregard for the law.
Mr Garzón argued that amnesty laws do not apply to crimes against humanity, and several international human rights groups support that view. “We are truly scandalised,” Giulia Tamayo, head of research for Amnesty International in Spain, said. “The UN Commission on Human Rights has repeatedly warned the Spanish government that amnesty laws were not applicable to crimes against humanity, but the Spanish authorities continue to hinder the victims’ quest for justice and reparation. Now the only judge who wanted to abide by international law is being made to pay for it.”
“No other country has gone as far as to prosecute a judge that tried to investigate such crimes,” she added.
Mr Garzón’s defence had lined up a cast of international legal experts, including Carla del Ponte, former chief prosecutor at the International Criminal Court, and Eugenio Raúl Zaffaronni, the Argentine judge who in 2005 voided the country’s amnesty law. But the Supreme Court yesterday ruled that it would not admit their testimony. The defence is appealing against the decision.
But the people most upset are the families of the victims. Mr Silva’s Association for the Recovery of Historic Memory has petitioned the court for the right to participate in the criminal proceedings. “There are many families who are depressed because of what is happening to Garzón,” Mr Silva said. “When he is placed on the stand, thousands of men and women who are awaiting justice will sit beside him.”
source: The Independent
Posted by Rahim Kanani on 25 03 2010 | 1 comment
In today’s International Herald Tribune, Candace Rondeaux and Nick Grono of the International Crisis Group argued that the International Criminal Court (ICC) should formalize their investigation of war crimes and crimes against humanity in Afghanistan, now that the Taliban’s military chief Mullah Abdul Ghani Baradar has been arrested in Pakistan. I believe formalizing such an investigation at this particular stage would be catastrophic in consequence, and would ultimately harm both the development of Afghanistan and the standing and status of the International Criminal Court.
While I support bringing perpetrators of mass atrocities to justice in an effort to end worldwide impunity, there are two critical issues missing from the authors’ analyses. First, the development of Afghan judicial and legal institutions should be seen as an opportunity for justice rather than a mere tragedy unfolding. And second, while the ICC is ideologically apolitical, independent, and led by a fierce Chief Prosecutor, Luis Moreno-Ocampo, the Court of last resort nonetheless operates with very limited capacity in a highly politically-charged world. Therefore, advocating for an official ICC investigation in Afghanistan, based largely on the capture of Baradar and an inexcusable amnesty law granting immunity to warlords and brutal extremists, fails to grasp the true mandate and resources of the ICC, coupled with the wave of complexities that would unquestionably follow such formalization.
The preliminary examination stage of the ICC is a critical moment for actors of all stripes in a nation to capitalize on global attention and advocate for the strengthening of domestic justice systems. Indeed, it is the prosecutorial strategy of the ICC to encourage genuine national proceedings as part of its’ operating principle of positive complementarity—ensuring respect for the international rule of law by creating an inter-dependent, mutually reinforcing international system of justice.
In the case of Afghanistan, and during the limited window of this preliminary examination period, coordinated pressure from both ends of the spectrum has the potential to catalyze massive positive change. Externally, and as part of their efforts to design and develop national judicial mechanisms with the Afghan people, the United States and its’ NATO allies, along with the United Nations, should exert strong international pressure on the Karzai government to repeal the amnesty law and charge Baradar domestically. Internally, an organized grassroots coalition of key NGOs and civil society actors in the business of accountability and human rights should demand justice at the local level, ultimately creating a pressure chamber to spark action. I understand that the system of justice in Afghanistan is more than a tweak away from enforcing or respecting the rule of law, but this moment of ICC intervention should be viewed as a springboard to developing Afghan justice processes domestically, and not viewed as an opportunity to reach for the hand of justice internationally in The Hague.
Equally important, but perhaps least understood, are the inevitable political ramifications to formally opening a case in Afghanistan. Aside from the limited manpower and resources of the Court, if a case is officially opened, the Prosecutor must deal with both allegations against the Taliban and NATO troops. While the former yields no grief, the latter will surely cause a stir. With American and NATO forces in the thick of quelling an insurgency, the ICC would be yet another thorn in the side of international troops in Afghanistan. That is not to say the ICC doesn’t belong—it does—but I fear a formal indictment of the country will do more harm than good, whereas capitalizing on the preliminary examination stage could push for the development and strengthening of domestic justice. It is national proceedings and internal justice that will produce the long-term benefit for Afghanistan and the Afghan people, and not an intensely difficult and futile investigation by the ICC prosecuting a single senior Taliban commander abroad.
The standing and status of the ICC is tested in a country like Afghanistan. Opening up a formal investigation will impeach international troops, including non-parties to the Rome Statute such as the United States. The preliminary investigation must be viewed as a strategic opportunity to catalyze domestic action, bring about international attention for the need to develop national judicial mechanisms, and strengthen relations with involved States who realize the tactical importance of this kind of intervention. We must recognize the pragmatic limits of the ICC’s reach and seek alternative routes that leverage the Court’s attention without over-extending its’ resources—towards the ultimate goal of bringing those responsible for mass atrocities to justice.
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source: Huffington Post