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?
Showing posts with label Omar al-Bashir. Show all posts
Showing posts with label Omar al-Bashir. Show all posts
Thursday, July 17, 2008
Monday, July 14, 2008
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.
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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