Posts Tagged Darfur

Shedding Light on Tensions Between the African Union and the ICC

The current tensions between the African Union and the International Criminal Court are often the object of international criminal lawyers’ discussions, and are particularly seized upon by skeptics and critics of the Court. For the Court and its supporters however, it has also been the subject of much reflection and concern, and this up to the highest levels (see ICC President Song’s opening remarks at the ICC-NGO biannual meetings a few weeks ago). Tensions and frustrations are flaring, and there seems to be no end to the standoff between the UN Security Council and the ICC on one side, and the African Union and Sudan on the other.

In the midst of these frictions that clearly threaten the ICC’s credibility in Africa, the Institute for Security Studies published last week an excellent Position Paper titled “An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC”, written by three African international law experts, namely Dapo Akande, Max du Plessis and Charles Chernor Jalloh.

As the title very clearly suggests, the authors give a very detailed analysis of the African Union’s position towards article 16 of the Rome Statute, in particular as it relates to the current tensions arising from the ICC’s involvement in Darfur.

Before giving some of my personal thoughts on the study’s findings, I first have to say that this report is brilliant and enlightening. It takes a very clear and rigorous approach to the raised questions on the role article 16 has to play, and makes the case for the African Union’s position without falling into the usual anti-West postcolonial political rhetoric that I find too often pollutes the debate and makes the real legal case inaudible. Although some would say there’s nothing new in the study for anyone who has followed AU-ICC relations closely, I still find that it puts a fresh perspective and offers a coherent analysis that puts the difference pieces of the puzzle in order.

I would recommend the reading of this report to anyone interested in understanding the state of ICC-AU relations, and more specifically, the legal aspects of the AU’s position towards the ICC.

I won’t summarize and go over the entire report, but briefly mention three main ideas that I think structure the paper and that particularly shed light on the ongoing conflict: Read the rest of this entry »

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A Rapid Follow-Up to the al-Bashir in Kenya Saga

So al-Bashir did not go to Kenya today. Instead, the IGAD summit that was initially supposed to take place in Nairobi will take place instead at a date still to be determined in Addis Ababa, in Ethiopia, which is not a State Party to the Rome Statute and therefore is not bound to execute the arrest warrants. At the insistence of the United States, Security Council Resolution 1593, which referred the situation of Darfur to the International Criminal Court, makes that very clear at paragraph 2 (emphasis is mine):

2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

Kenya did respond to Pre-Trial Chamber I’s request (see my previous post) by merely stating that there was no plan for the Sudanese President to come, which was, once the summit was moved to Ethiopia, true.

There’s not much to say here, and perhaps the saga ends here. The Pre-Trial Chamber’s “warning shot” probably did, despite (former) Kenyan Foreign Minister Wetangula’s claims, dissuade Kenya from holding the summit and receiving Bashir.

I did particularly enjoy Mr. Wetangula’s arguments in that article, not only claiming that Kenya did not push for the summit to be held in Ethiopia because of the ICC Judges’ request (to be fair, only the Kenyan authorities know for certain, but that’s very unlikely), but also said some pretty ludicrous things, such as “We have no demands from the ICC and we are not the arresting agents of the ICC so that is not an issue” (oh, really? Just imagine what people like Moses Wetangula would say if ICC investigators conducted an arrest à la Eichmann), and “ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to” (to be honest, I’m not really sure what that means).

As for the “former” in front of Foreign Minister, Mr. Wetangula resigned last Wednesday over allegations of corruption.

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The al-Bashir in Kenya Saga Continues

Sudanese President al-Bashir present in Nairobi on August 27, 2010 for the promulgation of Kenya’s new constitution (photo by AFP)

The International Criminal Court, in a press release published today, announced that Pre-Trial Chamber I (PTC I) rendered a decision in which it requested that Kenya informs the Chamber by the 29 October about “any problem which would impede or prevent the arrest of Omar al-Bashir in the event that he visits their country on 30 October 2010.”

There has been rumors of late about a potential visit by the President of Sudan, subject to two different arrest warrants issued by the ICC for having allegedly committed war crimes, crimes against humanity and genocide in Darfur, to Kenya again in order to attend an Inter-governmental Authority for Development (IGAD) summit on Sudan, which is supposed to take place on 30 October.

The Court, which was taken by surprise and humiliated in consequence when Bashir was allowed by the Kenyan authorities to visit the country at the end of August 2010 without being arrested – despite the fact that Kenya is a State Party to the Rome Statute (and a situation country to boot) – appears this time to take all necessary precautions to make sure that the same problem does not happen twice. Read the rest of this entry »

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When International Justice Meets “Foreign” Cultures (Part I) – The ICC & Zaghawa

I just had a full and very interesting day, and I felt like I needed to share some thoughts here on the blog in two different posts – relating to two different events – but that share the same theme: the problems international justice encounters when its meets “foreign” culture.

There is of course a certain amount of irony in the title, as it can be discussed whether “international” justice can encounter a “foreign” anything – that is, until we meet extraterrestrial cultures – but it is hard to deny that for all its international-ness (and it does try to accommodate different legal cultures), international justice, and international criminal justice in particular, rests on Western-standards and concepts of procedure, law, and justice.

Hence, when international justice encounters and has to work with non-Western cultural paradigms, problems prop up. Part II will be particularly more on-topic in this regard, but I feel like Part I relates as well, and so now comes the time that I actually tell you what this is all about. Read the rest of this entry »

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The “Peace versus Justice” Debate: Views From the Darfurian Refugee Camps

I apologize for not having posted anything in what appears to be way too long, even though from my perspective it feels as if it was just yesterday. I have been busy here and there, with work, The Hague, and finishing my LLM dissertation. Now that most of that is behind me, I can get back to this blog, and boy, there’s been plenty to talk about these past few weeks: the UN Mapping Report regarding crimes committed in the Democratic Republic of the Congo in the 1990s, a delicate political situation in Sudan, and some worrisome news from the front lines of the global struggle against terrorism. And let’s not forget the Pope’s visit to the UK, and the temptation by a certain number of people to put him on trial for crimes against humanity.

I will write on some, if not all, of these issues in the following days (again, forgive me for my lateness in reacting to these events), but I want to start off with a post on a NGO project called Darfurian Voices that I came across a few weeks ago. Read the rest of this entry »

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I’m inviting Bashir to the next family picnic.

There’s been a media firestorm in response to Sudanese President Omar al-Bashir’s trip Friday to attend the promulgation of Kenya’s new constitution, despite the ICC warrant for his arrest (see Xavier’s post below). A quick response:

In a press release, Michelle Kagari, Amnesty International’s Africa Deputy Programme Director, said, “It is disturbing that the Kenyan government is celebrating a new constitution – the national centrepiece of the rule of law – while obstructing justice for victims of such serious human rights violations in a neighbouring country.” Apparently the whole ‘neighbor’ part is being used by the Kenyan government to defend al-Bashir’s attendance: Foreign Affairs Minister Moses Wetangula stated, “[al-Bashir] was here today because we invited all neighbors and he is a neighbor.” Well, thanks, Mr Wetangula, for that priceless bit of social precedent. Next time I have a barbecue, I’ll be sure to invite the serial killer down the block, even though I promised my friends that I wouldn’t associate with him.

I don’t know where Wetangula is finding these gems, but he keeps them coming: “[Bashir] is a state guest. You do not harm or embarrass your guest.” Yes, Mr Wetangula, it seems the only thing Kenya is embarrassing lately is itself. To be fair, there is some hope for the sanity of select Kenyan government officials. Deputy Defense Minister David Musila stated, “Kenya has brought shame to itself by allowing President Bashir to visit the country. If he is still in the country he should be arrested immediately and handed to the ICC.” Unfortunately, Kenya’s apparent war crimes poster boy is already safe and snug back in Khartoum.

My apologies for the tone of this post. If I sound bitter, that’s because I am.

But do follow me on twitter @cminall.

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An Intolerable Affront

Sudanese President Omar Al-Bashir in Nairobi today, photo by AFP

Cate and I have been monitoring this since the news that Sudanese President Omar Al-Bashir would be visiting Kenya today broke yesterday evening (Central European Time), and have been tweeting about it since (follow us @cminall and @xrauscher_, respectively), but I was holding out to see what was going to happen today, and notably what the Court’s reaction would be, before posting. Now that the day is coming to an end, and the Court has reacted, I have no more reasons to wait.

As you may or you may not yet know, Sudanese President Al-Bashir made a surprise visit to Kenya today as Kenya celebrated the signing into law of its new Constitution, and was able to enter and leave the country untouched. Omar Al-Bashir is indicted by the International Criminal Court for war crimes and crimes against humanity since March 2009, and for genocide – the crime of crimes – since last July.

By inviting him into the country and not arresting him, Kenya failed to meet its international obligations, and this on two different planes:

First of all, the situation in Sudan was referred to the International Criminal Court by the United Nations Security Council. In its Resolution 1593 referring the situation in Sudan to the ICC, the Security Council, at §2,

recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

It could be very well interpreted that Kenya is in breach with its obligations as a UN member. However, some could argue that the use of the word “urge”, preceded with the “recognizing that States not party to the Rome Statute have no obligation…” (thank you John Bolton for that one), makes it non-binding. Read the rest of this entry »

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Gaddafi’s Son Supports The ICC Against Bashir

This is going to be a short post, as I’m short on time, and I don’t really know what to think about this anyway. The Sudan Tribune reported yesterday that Gaddafi’s son, Saif Al-Islam, through the intermediary of his human rights group – the Arab Alliance For Democracy Development and Human Rights – expressed support for the prosecution of perpetrators of mass atrocities in Sudan, “irrespective of their positions“.

Here’s an excerpt from the article:

“August 11, 2010 (WASHINGTON) — A Libyan human right group headed by the son of Muammar Gaddafi has issued a statement last week calling for prosecuting perpetrators of war crimes in Darfur “irrespective of their positions” in what appears to be a subtle reference to the indictment of Sudanese president Omer Hassan Al-Bashir by the International Criminal Court (ICC).

The Qatar-based Al-Jazeera website said that the statement by the Arab Alliance For Democracy, Development and Human Rights (ADDHR) coincided with a visit made by Bashir to Tripoli last Wednesday for talks with his Libyan counterpart.

Bashir is wanted by the International Criminal Court for war crimes and genocide during Darfur’s seven-year conflict

“The Arab Alliance For Democracy, Development and Human Rights continues to monitor and follow the grave humanitarian situation in Darfur and the resulting suffering and serious violations of human rights and crimes against humanity,” said a statement by the group on their website.

“The continuation of humanitarian violations against the citizens of Darfur and subjecting them to the suffering, killing and displacement is a serious situation that requires condemnation and working to stop it,”.

“[The world] cannot continue to turn a blind eye to crimes committed against innocent people in Darfur by parties to the conflict [including] government and rebel factions. [The world] cannot continue to postpone the realization of justice and offering compliments to offenders irrespective of their positions. This requires all states, governments, organizations and human rights activists to show solidarity with this humanitarian issue and not siding with the devil’s advocates so that each party faces the results of their own actions,” the statements reads. (…)”

The article further explains that this is really a message sent by Tripoli to Bashir, as the relationship between Sudan and Libya has been rather tense lately.

I honestly don’t know what to think about this. Should I take it seriously or is this hypocrisy at its best? Or am I missing something?

You tell me.

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Putting Article 16 of the Rome Statute to Good Use?

The Siege of the International Criminal Court, in The Hague

I had a “discussion” this morning on Twitter with Jon Hutson, of the Enough! Project I wrote about a few days ago, concerning peace in Sudan and Darfur following an article he posted. Although the discussion was necessarily limited by the format of Twitter (no more than a 140 characters per message), I thought it raised interesting questions especially relating to how to use article 16 of the Rome Statute efficiently in peace negotiations.

The conversation started off when Mr. Hutson posted this op-ed article published in the New York Times. The article, ‘In Sudan, War is Around the Corner’, is written by Dave Eggers – the author of the novel What Is the What – and John Prendergast – the co-founder of the Enough Project.

The article is an interesting call for vigilance from the international community and the United States in particular at the outcome and consequences of the future referendum in 2011 concerning South Sudan’s eventual secession. As the authors of the article point out, should this referendum be cancelled or manipulated by Khartoum, fighting will break out once more in the South and in Darfur. They call for “developing a more robust package of carrots and sticks” which would “strengthen America’s diplomatic hand.

So far, no problem. But then something caught my eye (emphasized). And I quote:

“For this diplomatic effort to be effective, real incentives should be on the table as well: If — and only if — true peace comes to Sudan, we could offer conditional, one-year suspensions of the International Criminal Court warrants and normalization of relations between Khartoum and Washington. And experienced American negotiating teams should be deployed immediately to support African Union and United Nations efforts already under way to end the war in Darfur and prevent one between the north and south, just as we did with the 2005 deal.”

This, I thought, is particularly interesting. Offering one-year suspensions of the International Criminal Court warrants as a carrot for peace. Well, why not?

Let’s go back to law for a moment. The 1998 Rome Statute that created the International Criminal Court includes a provision that states:

Article 16: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The provision is self-explanatory: the UN Security Council has the power to defer any investigation or prosecution by the ICC for one year, with the possibility of renewing the deferral. However, it only takes one veto, or a 8 out of 15 majority (it is little-known rule, but for a Security Council resolution to pass, a 9 out of 15 majority is required), for the deferral to be blocked, limiting the Security Council’s power over the Court.

To give a little background information on the importance of this article, it is interesting to note that it had been the subject of much debate during the negotiations, and is probably the most important reason why the Americans have refused to this day to ratify the Statute. I will not get too much into the details, but basically the Americans wanted a much larger control of the UN Security Council over the ICC’s actions, and in particular the Prosecutor’s. They wanted the Prosecutor to require authorization from the Security Council to being an investigation, which would, of course, be subject to American veto. For more info, see William A. Schabas, “United States Hostility to the International Criminal Court: It’s All About the Security Council” (2004) 15 EJIL 701-720.

In any case, under the Rome Statute, the Security Council can only suspend one year (renewable) the procedure against – in this case – Sudanese President Omar al-Bashir.

The question is: what can the Security Council do with this in order to secure peace?

I’m going to put on the side my own belief that justice is not an impediment to peace but a requirement. In the words of Mark Kersten, I fit more in the “moral imperative camp,” coupled with the idea that for people to find peace they “psychologically” need a form of justice and recognition. However, I am not an ideologue, and if an article 16 deferral can save lives, I certainly will not complain.

But can it? Dave Eggers and John Prendergast write that it should be considered as an incentive, a “carrot,” for al-Bashir to negotiate peace. My skepticism is aimed at the one-year limit. Is the UN Security Council going to renew the deferral every single year until al-Bashir dies (genocide and crimes against humanity are imprescriptible)? If not, then is al-Bashir really going to be interested by a single year suspension? Sooner or later, the ICC will catch up.

On the Enough! Project blog, John Prendergast writes about how he sees article 16 being used:

Article 16 was specifically included in the ICC charter to give countries leverage where there might appear to be none, and only in support of peace. The Article 16 deferral only lasts a year, and is conditioned on fulfilling the terms of the original deferral. So if the condition for deferment is a peace deal in Darfur, full implementation of the CPA, no support for violence or conflict in the South, respect for the referendum process and its results, and respect for human/civil rights in Sudan – certainly monumental hurdles when we consider the past 21 years of NCP rule – that bar has to be met and re-met every year. This means that the leverage inherent in an Article 16 deferral isn’t a one-off instrument, but rather an ongoing point of influence, which, if we utilize it, actually lends further credence to the ICC.

In many ways, that is an interesting view on article 16, and it could work. I have two reservations to make, however: first of all, as I have already said, even if the Security Council renews it every year under the condition that the Sudanese regime respects the peace process established since 2005, I don’t see it renewing it until al-Bashir’s death (in the hypothesis that al-Bashir all of the sudden gets the message and accepts the peace process, with all the carrots involved), and the Sudanese President is bound to know that. Secondly, and this relates more to principle and a form of idealism, I am uncomfortable in seeing the ICC, and Justice in general, used as a simple political tool of pressure. It is rather frequent in common law systems, but much less so in civil law systems.

That being said, if it works, I won’t let my idealism stand in the way of peace and of saving lives.

Sudan is an interesting case for international lawyers, as it seems to be the first of several things: first time the UN Security Council refers a situation to the ICC, and the first time the ICC indicts a sitting head of State. Could it also become the first time the Security Council uses article 16 of the Statute to defer a procedure?

It’s going to be interesting to watch.

What are your thoughts on this? Feel free to comment.

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Good News for the ICC and ICL: Second Arrest Warrant Issued for Omar Al-Bashir

Good news today for any international criminal lawyer interested in the International Criminal Court’s role in bringing perpetrators of mass atrocities in Darfur to justice: Omar al-Bashir, the recently re-elected President of Sudan, has been indicted by the Pre-Trial Chamber I on charges of genocide (here is the document, in PDF).

The Pre-Trial Chamber had refused the first time to charge al-Bashir with the crime of genocide, charging him “only” with crimes against humanity and war crimes, on the ground that the evidence presented by the Prosecutor concerning the crime of genocide did not meet the “reasonable grounds” standard defined by article 58(1)(a) of the Rome Statute. The Chamber considered at the time that the Prosecutor had not sufficient evidence indicating that Omar al-Bashir had specific genocidal intent, a required element of the crime of genocide.

For those unfamiliar with the Rome Statute or genocide as a legal, not social, matter, a brief explanation is I believe necessary. The crime of genocide is a very specific and strictly defined notion. Considered by many to be – in the words of Professor William A. Schabas – the “Crime of Crimes,” it is defined by article 6 of the Rome Statute, which states:

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)     Killing members of the group;(b)     Causing serious bodily or mental harm to members of the group;

(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)     Imposing measures intended to prevent births within the group;

(e)     Forcibly transferring children of the group to another group.

The keyword here which I emphasized is “intent”, which is the subject of much discussion among academics and of much misunderstanding between legal scholars and others who adopt a larger, more “social” definition of genocide. As far as international criminal law is concerned, to be guilty of genocide, an individual must have the specific intent to destroy a national, ethnical, racial or religious group. Destruction of such groups without the specific intent to eradicate is not – legally speaking – considered genocide, but falls into the “crimes against humanity” or “war crimes” categories. The former category is known informally among international criminal lawyers as the “bucket crime,” as anything that falls short of genocide ends up being considered as a crime against humanity.

Perhaps another subject of clarification for some but that should appear as obvious to many: under the Rome Statute just like most democratic Western-style judiciary systems, a Prosecutor must convince a Judge that his evidence is solid enough to justify an arrest warrant. In the case of the ICC, the Chief Prosecutor must convince 3 Judges composing the Pre-Trial Chamber, who may or may not issue an arrest warrant as demanded by the Prosecutor. The Prosecutor may, however, appeal the Pre-Trial Chamber’s decision before the – you guessed it – Appeals Chamber (article 57 and article 82 of the Rome Statute).

To return to the ICC and al-Bashir, the first decision by the Pre-Trial Chamber was hotly contested by certain scholars, such as Opinio Juris’ Kevin Jon Heller, who considered that the court’s interpretation of article 58’s “reasonable grounds” requirement was far too strict. The Appeals Chamber later on also sided against the Pre-Trial Chamber’s position in a decision dated on 3 February 2010, lowering the standard of proof initially required.

This led to today’s decision by the Pre-Trial Chamber I to issue an arrest warrant against Sudanese Omar Al-Bashir, this time on the count of genocide.

Battle’s not over yet, in any case. A lot still needs to be achieved. Although Mr. al-Bashir’s traveling plans have been disturbed, he has still not been arrested, has been recently re-elected (which politically always complicates things), and some still see him as taking part in a peace plan, a sad repeat of the “Milosevic Strategy” adopted by the U.S. State Department in the 1990s which had produced mitigated results.

That being said, it is still good news.

PS: I’m looking forward to read Kevin Jon Heller’s perspectives on the latest decision over at Opinio Juris.

See also Jurist.org’s summary of the news. For a very interesting, but less legal perspective, see Mark Kersten’s Kolumn’s post on this.

Finally, on the arrest warrant and the question of  head of state immunity, see Dapo Akande’s post over at EJIL: Talk!

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