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.

A Truth Commission the answer to war crimes after 9/11?

I just read an interesting column in today's [6 July 2008] edition of the New York Times. In this column Nicholas Kristof suggests that a truth commission be set up to investigate the atrocities committed by the Bush Regime post 9/11. The question which I would like to debate is whether we can grant amnesty to people who have committed war crimes in the form of torture and detention without a trial or a charge?

Coming from South Africa, I witnessed the success of a truth commission, as we had one set up under the Truth and Reconcialition Commission Act. However, the commission had its cons as it never had enough time to address and grant redemption to all the victims and their families of the Apartheid regime.

A truth commission for the USA will only be effective if lessons can be learnt from it. Lessons not to go back to commit grave breaches of international humanitarian law. It should be remembered that torture and detention without trial was not the only violations that the USA defence force and Bush Administration committed. There is also the destruction of religious buildings and other property protected under the Geneva Conventions, which the military tore down. Truth and Reconcialition would be all fine and dandy, but who will pay for the restruction of these buildings? Who will pay for the countless innocent detainees who are still tortured and detained in Guantanamo Bay?

Another option that should also be investigated is the possibility of criminal and war crimes charges against the perpetrators and those who aided and abetted these crimes. However these also raise important questions as the USA is not a party to the ICC Statute and therefore the ICC does not have the jurisdiction to try those who were involved in committing war crimes in Iraq, Afghanistan and Guantanamo Bay. Would the USA courts be objective in trying these offenders?

These atrocities cannot be ignored. Therefore I do agree with Kristof that a Truth Commission would be a good option. However I will only agree subject to the consequence that the USA government learn an important lesson from this. One cannot take away peoples basic civil and political human rights, on the suspicision that they are a risk to national security. If they they are charged with terrorist activities and receives a due process, fair trial then such a consequence [like forming a Truth Commission] could possibly be negated.