Another [previous] head of state in trouble, but this time not from Africa

Radovan Karadzic, former President of Bosnia Serb, was finally arrested, 13 years after the International Criminal Tribunal for the former Yugoslavia (ICTY) issued a warrant of arrest against him. I have to admit that he was a bit of a smart one. Hiding in Serbia and pretending to be a orthodox priest is much better than living in an underground hole, like his Iraqi counterpart. Karadzic's arrest should definitely send a strong message out to everyone else who is planning to commit one of the international crimes, that one can run (even for 13 years), but one cannot hide.

I am interested to see the effects this case will have, on the already heavy case load of the ICTY. The ICTY's mandate comes to an end in 2010 and should Karadzic plead not guilty, his trial will probably continue way beyond 2010. Also, should his partner in crime, Ratko Mladic, be apprehended before 2010, will this tribunal then ask for an extension of its mandate? Alternatively, would the case load be handed over to the International Criminal Court (ICC), considering that both Bosnia-Herzegovina and Serbia are state parties to the ICC Statute?

On the other hand, presuming that this trial is finished before the tribunal's mandate comes to an end, it will be interesting to see the jurisprudence created by this tribunal, especially with regards to the genocide charges against Karadzic. Although this tribunal has the competency to hear cases involving genocide, it has only once convicted an accused (Jelisic) of committing genocide. Although 'ethnic cleansing' is not seen as another form of genocide, the academics have critised and indirectly placed pressure on the ICTY to convict ethnic cleansing as a form of genocide. Should Karadzic be found guilty of committing genocide, then such a verdict and the consequential jurisprudence thereof will definitely be welcomed.

The arrest of Karadzic and previous arrest of Milesovic really shows that its not just Africa's presidents or previous presidents that are always in trouble for committing war crimes, crimes against humanity and genocide. This statement is not meant to defend African leaders who committed these crimes, it is meant to show that its not just Africa's leaders who commit these crimes.

Just as another point of interest (that has nothing to do with legal/ political/ international relations issues), who of my readers have ever watched a movie of the conflict in the former Yugoslavia? I have watched one, but it was not directly on the atrocities committed, but more on capturing a 'war criminal' in the aftermath of the conflict, which was solely based on fiction. Now, who of you have watched a movie on atrocities in Africa? I have seen 'The last King of Scotland, Hotel Rwanda, Shooting Dogs and Blood Diamond' which was movies that tried to stick to facts as far as possible. The latter were really good movies, but if the people are made more aware of the atrocious conflict that also happened in the former Yugoslavia, they will be able to truly understand the positive development the arrest of Karadzic has on the victims of this war (being mostly Muslim people).

Is the USA justified in throwing its weight around to impose sanctions against Mugabe?

If you are a true follower of my blog, you would probably think that I have this immense hatred towards the USA. Surprisingly, that is wrong. I consider the USA as my second home. A beautiful country with so much different character. Miami is definitely not the same as Greenfield, NH or even Huddleston, VA. The only 'problem' (this word portrays too much emotion) I have is with the failing foreign policy of the Bush administration and the war on terror, which includes the way in which Guantanamo Bay is run.

After reading an interesting editorial in today's (21 July 2008) New York Times called 'Failing Zimbabwe' I thought about the USA involvement in international peace and security, especially relating to the situation in Zimbabwe. The author of this article states that the USA's suggested sanctions against top officials is definitely the route to go and that although the Bush foreign policy is a failure, that he (Bush) is justified in asking for sanctions against Mugabe and his top Zanu PF officials. I have to admit, that I still do not see how increased pressure for sanctions against Mugabe would aid such a wonderful country like Zimbabwe and its people. Robert Mugabe is really not concerned about Western efforts to put pressure on him. Thus, sanctions might not serve as an effective tool towards getting Zimbabwe out of the crises it is currently in. Even though Mugabe is to blame for the current state Zimbabwe is in, I think that the USA Government and especially the UN should rather place more focus on Zimbabwe and not so much on Mugabe.

The editorial in the NYT also highlighted the 'cunning' ways in which President Bush tried to persuade Russia and China not to veto future resolutions against its proposals to place sanctions against Mugabe. I think that it will take a bit more than getting friendly with Dmitri Medvedev and agreeing to attend the opening of the Beijing Olympics for Russia and especially China not to veto against such proposals. China has more to lose by allowing sanctions against Mugabe, as one of the proposed sanctions include an arms embargo. China provides arms to the Zimbabwe Defence Force, therefore such sanctions would directly affect its dealings with Zimbabwe.

I sometimes wonder what if sanctions from another country in the Security Council, except the USA and the UK, were proposed against Mugabe. A country like Russia for example. Would the reaction have been different? Would Mugabe have responded more positively (not that one can ever respond positively to sanctions against you)? In other words, Mugabe would then not have been abled to justify himself by blaming the West for the situation the country is in. His current reasoning is that its the West's fault for the situation the country is in and therefore he will not consider any proposal coming from West. However, Russia is not governed by a 'neo liberal capitalist' regime. In fact the opposite, Russia is governed by way of Communist principles. So therefore, if the West (the USA and UK) is really to 'blame' (and I mean this in the lightest possible form, as we all know that its not true) for the crises in Zimbabwe, would they be justified in imposing further sanctions against Robert Mugabe?

As the eternal optimist that I am, I do hope for a better outcome after the talks which started this week in Pretoria between Zanu PF and the MDC party leaders. Transition takes place in stages, therefore I do hope that a lot of thought is placed into South Africa's option for the future of Zimbabwe, by allowing for a Prime Minister to be included in the Constitution of Zimbabwe and for Tsvangirai to fill that position. I certainly also hope that by now other regional political bodies (like SADC and the AU) have seen the seriousness of constantly monitoring elections, to make sure that its free and fair. Let us hope that its the case of 'third time lucky' and that the next elections in Africa does not end in violence.

A Birthday Tribute to South Africa's hero!!

Tomorrow (18 July 2008) old President Nelson Mandela will celebrate his 90th birthday! A man who dedicated his life and sacrificed 27 years of that same life (in detention) to fight for freedom in South Africa, deserves more than just a Nobel Peace Prize. Nelson Mandela strived to create utopia, even though it seems as a completely relative concept and foolish ideal. He deserves the world's praise!

I have seen countless examples (especially in Africa) where heroes turned into villans. Leaders who have done wonders in liberating their country from European colonial ties and today they are remembered as power hungry dictators. Idi Amin and Robert Mugabe are but two examples of this.
However, even though he was quite old when elected as South Africa's first democratic president, he still upheld the Constitution in all its progressive glory. He led South Africa into a peaceful transition from Apartheid and by signing the Truth and Reconciliation Bill into a Act, he painted the wonderful picture of forgiveness. Nelson Mandela surely portrays an excellent example of what the spirit of Ubuntu is all about.

May the Gods, where-ever they might be, keep signing their light on you!
Happy Birthday Madiba! Happy 90th Birthday!

"You can't arrest Bashir. Who's going to arrest him?"

This was the South African Ministry of Foreign Affairs response to the arrest warrant that the ICC prosecutor is seeking for Sudan's president, Omar al-Bashir. This statement by the deputy minister of foreign affairs, Aziz Pahad, does not do anything to boost South Africa's image (in the international world) especially as far as prosecuting prominent political leaders.

Firstly, it should be noted that the UN Security Council instructed the ICC prosecutor to investigate the atrocities and crimes committed in the Darfur region of Sudan. By way of the Security Council, the ICC obtained the jurisdiction to deal with Sudan, even though Sudan is not a state party to the ICC statute. The Sudanese government has stated that they will give their full cooperation to the UN, but they do not recognise the ICC as a court having jurisdiction over their nationals. What constitutes full cooperation? It was the UN who in the first place gave the ICC a mandate to investigate. Therefore by supporting the UN, does that not mean that the Sudanese government must also cooperate with the ICC, should they issue a warrant of arrest against al-Bashir? In the past the Sudanese government refused to cooperate by not delivering two prominent government ministers to the Court, for whom warrants of arrest have already been issued. The likelihood that they will cooperate now, is wishful thinking.

Back to the South African Ministry of Foreign Affairs' response. Firstly, it should be noted that this response portrays a bad picture of South Africa's response to the prosecution of high government officials. This is not surprising, considering that the leading political party of the country (the ANC) wants fraud, corruption and money laundering charges dropped against their party leader, Jacob Zuma. It should be remembered that in all probability Jacob Zuma will be elected the country's next president. This paints the picture that South Africa is in support of full immunity against criminal prosecution for prominent political leaders, even if they committed crimes which could taint their reputation in negative light, as president.

Secondly, who's going to arrest him [al-Bashir]? As stated above, the Sudanese government does not recognise the jurisdiction that the ICC holds over it as far as international criminal law is concerned. They refuse to deliver to other accused for whom warrants of arrest has been issued. However, I want to respond with another question, which could possibly open the floor for debate: Who arrested Slobodan Milosevic? Who arrested Charles Taylor? Who arrested Jean-Pierre Bemba?

Of self-incrimination by way of torture and national security: Next [challenge] for the Guantanamo detainees

I read an interesting article on today's 'Weekender' media site. This article reported on the admissibility of evidence obtained through torture against the detainees at Guantanamo Bay. It is a known fact that detainees are tortured for information to convict others and themselves as taking part in terrorist activities and also providing information to the USA government on other detainees that are taking part in such heinous activities. However, should this evidence be admissible in a competent court?

The Bush regime seems to be of the view that in the interest of national security such evidence should be admissible against detainees. However, when comparing national security to international humanitarian law principles against torture, what should take preference?

This blog will deal with the situation where an accused incriminated himself, because he was tortured to give such evidence.

Surprisingly, when it comes to national security, the USA seems to forget about the precedence the Supreme Court set in the famous case of Miranda v Arizona. This case dealt with the constitutionality of the privilege against self incrimination. The court stated: "We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege... no evidence as a result of interrogation can be used against him". If the USA wants to deal with these detainees domestically, they should either (1) uphold the values placed within their Constitution, especially those relating to the rights to a fair trial or (2) uphold basic international human rights law, which also provides for fair trial rights. Self-incriminating evidence obtained by way of torture should not be admissible in court, according to the precedence set in the Miranda case.

On the other hand, any court of law that deems itself as an institution that upholds justice would not admit evidence obtained by way of torture, unless some valid evidential exclusion can be deemed justified to admit such evidence. I am still not convinced that 'national security' serves as an appropriate measure to admit evidence against others and the 'accused'. The International Tribunals have not admitted such evidence against accused persons who have actually committed of the most heinous crimes in the world, similar to that of 9/11.

My next question is thus the following: Is the Bush Regime exploiting the detainees and robbing them of their basic fair trial rights, because according to this regime 'They are criminals that do not deserve these rights'? That's the question I leave open to debate!

Another African head of state in trouble

I might seem a little late on this one, as speculation around the possible prosecution against the Sudanese President, Omar al-Bashir for war crimes, genocide and crimes against humanity has been publicised since Friday past. However, as a good researcher, I first waited for the International Criminal Court (ICC) to make a media statement on this one before I go ahead and write a blog about it.

Today the prosecutor of the ICC presented evidence to this establishment which would be reasonable enough to indict the current president of Sudan for war crimes, crimes against humanity and genocide committed in three regions (Fur, Masalit and Zaghawa respectively) of Sudan by militia and the Janjaweed, which he had, allegedly, ordered them to do. The court will now study this evidence and find if there indeed is a probable case against Omar al-Bashir, then a warrant of arrest will be issued against him.

It should also be noted that the court had previously issued two warrants of arrest against two militia leaders from Sudan who committed war crimes, crimes against humanity and genocide in the Darfur region. However, the government of Sudan refuses to hand these accused over to the court. If a warrant of arrest is issued against al-Bashir there is a good chance that he will refuse to be handed over to the court.

This case has also sparked a debate around the prosecution of a national of a state party who is not a signatory to the ICC Statute, like Sudan. Does this mean that the ICC has no jurisdiction to deal with cases emanating from The Sudan? Not necessarily. The principle of 'universal jurisdiction' for (1) grave violations of international humanitarian law; (2) crimes against humanity and (3) war crimes forms part of the ius cogens which means that the violation of these crimes (which forms part of customary international law) can be tried by any domestic court (in the world) where the accused might be found. Normally in these cases state parties to the ICC Statute would ensure that the accused be delivered/ extradited to the ICC in The Hague, Netherlands. In other words, should al-Bashir find himself in another country that is known to cooperate with the ICC he might then be turned over to the ICC by that country. This is obviously all subject to a warrant of arrest being issued against him.

I have to admit though that I am still concerned about the security situation in The Sudan should al-Bashir be delivered to the ICC facility. Even though the country finds itself in peace right now, the security situation in this country is still volatile and the arrest of the President might just light the fuse to the conflict continuing again.

On the other hand, the ICC is quite brave to seek a warrant of arrest against a sitting head of state at this early stage of cases being brought to this court. The Court was established in 2002 and yet still not one judgment has been delivered. With the possible striking off the roll of the Lubanga case, the ICC has not really established itself as a noteworthy institution. Therefore, the case against al-Bashir will definitely 'make or break' this court.

Even though there are so many odds against the possible prosecution of al-Bashir (the fact that Sudan is not a state party to the statute and the fact that Sudan has refused to deliver two accused for whom warrants of arrest have been issued), I still have faith that the prosecution indeed have a good case against him. In his submissions made to the court today, Moreno-Ocampo (the head prosecutor) seemed quite sure of himself that they have enough evidence against al-Bashir.

China and Russia says no!

The New York Times reported on the happenings at the UN Security Council [SC] on voting for sanctions against Robert Mugabe and other leaders of his Zanu PF party. Both, China and Russia exercised their veto rights against sanctions for these leaders. They argue that these sanctions would go beyond the SC's prerogative powers and China added that sanctions would impede on South Africa's efforts of negotiation between the two opposing parties.

Needless to say, the USA seemed furious at this decision, as it was the one who proposed sanctions against Mugabe in the first place and worked hard to get the backing of other countries in the SC.

Even though China might have a conflicting interest when voting (as they supply Zimbabwe with arms and ammunition) I have to agree with them and Russia. As I have argued in my previous blog, negotiations for a unity government seems as the better option for Zimbabwe's future. Sanctions only serve as a temporary resolution and does not address the violation of human rights effectively in this country.

Yes, violence has erupted in the country preceding the run off election. This can be addressed in the aftermath of the negotiations either by way of criminal trials or by establishing a truth and reconciliation commission. Yes, the run-off election was highly suspicious and reeked of fraud, but this is currently being addressed by the negotiations in Pretoria.

I also have to admit that the USA government's reactions to Zimbabwe has not surprised me at all. They are the first to call for the international community's aid and the SC's help, because according to them Zimbabwe's situation constitutes a serious threat to "international peace and security". However, when it comes to waging the war against terror (which includes invading Afgahnistan and Iraq) and detaining nationals of other countries in Guantanamo Bay (without any charges), they want to circumvent the international community's involvement. Talk about hyprocracy.