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.
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2 comments:
Quite an interesting post.
Indeed our leaders should begin to embrace democracy with all that it brings with it, including transparency, accountability and rule of law. Rule of law in a functioning state would, for instance, mean that if a prosecuting authority says they have a case for a public figure, including a head of state, to answer to then the public figure or head of state should submit themselves to the court system to account for the actions or clear their names if they claim innocence. That would go for Al-Bashir in Sudan, Zuma in South Africa, and Uncle Bob in Zimbabwe whenever he is charged for a catalogue of crimes as he surely must.
A lot of civic education is necessary to secure the citizens appreciation of these vital pillars of a democratic state. These principles should be invoked without fear or favour and regardless of race or creed or even nationality. For instance, I often marvel at the hypocrisy of Zuma’s supporters such a Vavi and Malema who are prepared to “kill” to have the corruption charges against Zuma dropped and yet are so incensed with Mugabe that they would be overjoyed to see him arraigned before the ICC. What is the difference between the two? They would have to answer to different types of criminal charges, yes. The one before a domestic court and the other before an international court. But both men would be accounting for their actions, and both would have violated some or other laws.
I share your security concern in Sudan should Al-Bashir be arraigned. Well, we just have to accept that sometimes things have to get worse before they get better. Examples are the DRC Congo and recently, Liberia. The important thing is that Al-Bashir arrest and prosecution would send a strong message to high-handed rulers like uncle Bob.
Siyambonga, I share your sentiments.
Even though it looks like crimes against humanity were and are being perpetrated in Zimbabwe by Zanu PF supporters against MDC supporters, there is still no evidence that uncle Bob ordered them. It will be interesting to see if uncle Bob actually respond 'positively' to these perpetrators. E.g. By granting amnesty or even calling for the prosecution of the perpetrators. That would sure be one way to get the 'lime light' off him.
I am also quite 'disgusted' (I am only using this word for lack of a better word that I cannot think of) in viewing the hypocracy of Vavi and Malema in their kill for Zuma statements. If Jacob Zuma is innocent as he purports to be, then the evidence will prove it. The evidence which should be brought to court, where the court will make a ruling on it in a fair trial.
Even though Charles Taylor is no longer a head of state, it would be interesting to see the influence his case will have on (1) The people of Sierra Leone and Liberia; (2) The ICC and (3) the proceedings against al-Bashir [should he be prosecuted]. If al-Bashir should be convicted, Africa will definitely be making history and hopefully set good precedence against other leaders who have plans to commit crimes of an international character.
Yes, sometimes things should get worse before it gets any better, but can things really get worse for Sudan [again]?
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