ICC and Sudan, a risky legal precedent

Injustice in Globalization of Criminal Law: Risky Legal Precedent on the President of the Sudan

By James Solomon Padiet

January 29, 2009 — As the lightnings and thunders of the Israelis mass destruction missiles have stopped killing, wounding, destroying properties and displacing Palestinians in Gaza, and as the world’s focus on inauguration of Obama as the spectacular new USA President has already gone into the archives of history, it seems that the next world’s attention is going to be on the President of the Republic of the Sudan. This attention will be between two possible outcomes from a sharp sword (that is being held by three Women Justices of Pre-trial Chamber I of the ICC) to cut either H.E. Omer Hassan Al Bashir or the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo. If the sword flashes back on to the side of the overambitious Ocampo, then it will discredit him and his deputies from international jurisprudence. But if the sword flows straight to direction of the President of the Sudan, thereby, is a possibility that its edge shall never cut him because he wears a strong armour of sovereignty and immunity from Sudan Interim Constitution that was born by the Comprehensive Peace Agreement (CPA), signed on 9th January 2005 in Nairobi between the Sudan Government and the Sudan Liberation Movement/Army and witnessed by the international and regional communities who pressured Mr. President Al Bashir and the rebel Dr. Garang to stop the war and make peace. The achieved peace between the South and North is now at its fourth year but it is being risked to get dishonoured because of the unfortunate demand of the ICC Prosecutor for an arrest warrant on Mr. President whose office is vested with upper responsibility of overseeing the implementation of the CPA within the collegial Presidency.

1. WHAT IS THE ICC PEOPLE TALK ABOUT THESE DAYS?

The International Criminal Court (ICC) is an ‘independent’ global judicial institution with the power to try and punish individuals for the most serious crimes of international concern: genocide, crimes against humanity, crimes of aggression (which is not yet defined conclusively), and war crimes. The Rome Statute defines “Genocide” as the commission of certain acts with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The acts listed are killing members of the group or causing them serious bodily or mental harm; forcing the group to live in conditions calculated to bring about the group’s physical destruction in whole or in part; and using forcible measures to prevent births within the group or to transfer children out of the group to another group. It defines “Crimes Against Humanity” as certain acts committed as part of a widespread or systematic attack against any civilian population. The acts include murder or extermination; slavery; deportation or forcible transfer of a population; imprisonment and other severe deprivations of physical liberty; torture; violent sexual offenses, such as rape, sexual slavery, and forced prostitution; forced disappearance; and apartheid. The statute leaves open the possibility of prosecuting other, unnamed inhumane acts of a similar character. Its list of “War Crimes” is extensive. It includes acts prohibited by the 1949 Geneva Conventions on the Laws of War: willful killing, torture, intentionally causing great suffering, hostage taking, extensive destruction and looting of property, depriving prisoners of war of a fair trial or forcing them to serve in the military of a hostile power, and unlawful deportation or confinement. The statute also defines as war crimes 26 other serious violations of the laws and customs of war, such as pillage, intentionally directing attacks against civilians, using poison weapons or poison gas, and subjecting individuals to mutilation or scientific experimentation. Finally, the statute contains special rules that extend the court’s war crimes jurisdiction to civil wars, which historically were not regulated by international law.

The ICC was first approved in 1998 by a treaty known as the Rome Statute (adopted by a vote of 120 countries in favour, 7 against, and 21 abstaining), and it officially came into being on July 1, 2002, after 60 countries ratified the treaty, 30 of whom are African countries. The court has its headquarters in The Hague, The Netherlands. Individuals from countries that are not parties to the Rome Statute may be subject to the court’s jurisdiction under certain circumstances. However, the ICC is supposed to be complementary to national criminal procedures, meaning that it may not exercise jurisdiction if a nation is adequately prosecuting accused criminals. The ICC is not an organ of the United Nations (UN), although it maintains a relationship with it. The ICC handles cases involving individual criminal responsibility, unlike the International Court of Justice (an Organ of UN), which mainly adjudicate legal disputes between nations or countries.

The functioning of the ICC is structured among the judges, the registrar, and the prosecutors offices. The number of the judges is 18, elected by the Assembly of States Parties in a secret ballot. The candidate must be an expert either in criminal law and procedure or in relevant areas of international law, such as human rights law or the law of armed conflict. Judges serve a single term of nine years. The judges are led by the Presidency, a group of three judges who are responsible for the judicial administration of the court. The Presidency consists of a president, first vice president, and second vice president. Judges in the Presidency are elected by the court’s judges and serve three-year terms. The judges are assigned to Pre-trial, Trial, and Appeals chambers. The Pre-trial Chamber has the power to authorize investigations by the prosecutor, and it may issue orders, warrants, and summons during an investigation. It also has the responsibility to protect the rights of victims and witnesses during pre-trial proceedings and to ensure due process for the accused. The Trial Chamber’s function is to conduct a fair, speedy trial, to convict or acquit the accused, and to sentence those convicted. The Appeals Chamber has the power to reverse or amend convictions and sentences and to order new trials.

The Registry is the administrative arm of the court and oversees non-judicial matters. It is headed by a Registrar who is the principal administrative officer of the court. The Registrar is elected by the judges to a five-year term.

The Office of the Prosecutor is responsible for conducting investigations and prosecutions. It consists of a Chief Prosecutor elected by the Assembly of States Parties in a secret ballot, as well as one or more deputy prosecutors. Deputy prosecutors are nominated by the Chief Prosecutor and elected by the Assembly. Both the Chief Prosecutor and the deputy prosecutors serve a term of nine years and are not eligible for re-election. The Chief Prosecutor may initiate investigations independently based on information he or she has received about crimes within the court’s jurisdiction. Alternatively, cases may be referred to the prosecutor by the UN Security Council or by a state that is a party to the Rome Statute. The Prosecutor evaluates the information and investigates to determine whether or not there is a sufficient basis to prosecute. If the Prosecutor decides to proceed with the investigation, he or she must first obtain authorization from the Pre-trial Chamber.

The ICC formal prosecution begins when a Pre-trial Chamber issues an arrest warrant or summons for an accused person to appear based on the charges filed by the Prosecutor. When the accused appears, a hearing is held to determine whether sufficient evidence exists to proceed to trial. Nations that would normally have jurisdiction over the crimes committed may appear to challenge the ICC’s jurisdiction or the admissibility of the case. Once the Pre-trial Chamber has confirmed the prosecutor’s charges, three judges of Trial Chamber conduct the trial in public proceedings with the accused present. The court may convict if at least two of the three judges are convinced of the suspect’s guilt beyond reasonable doubt; the decision need not be unanimous. The court can fine or imprison those convicted and order reparations to victims; it may not impose the death penalty. The maximum sentence is life imprisonment. Sentences of imprisonment will be served in The Netherlands or in another country that voluntarily accepts the prisoner. Either the Prosecution or the Defense may appeal against the verdict or the sentence to the Appeals Chamber.

The Rome Statute gives the court jurisdiction over the most serious crimes of international concern if they are committed after July 1, 2002, either (1) by a citizen of a nation that accepts the statute, or (2) by a person of any nationality on the territory of a nation that accepts the statute. The latter type of jurisdiction means that citizens of nations that have not accepted the treaty may be arrested and tried for international crimes if their actions take place in the territory of a nation that adheres to the statute. Nations that are not parties to the statute may voluntarily accept the court’s jurisdiction on a case-by-case basis. Furthermore, the UN Security Council can grant the court jurisdiction for a specific situation even when the nation in which the crime occurred is not a party to the statute. In any criminal case, the ICC may only exercise its jurisdiction when a national court is unwilling or unable to carry out the investigation or prosecution. For example, the ICC might intervene when a government’s judicial system has collapsed or is actively shielding a person from criminal responsibility. The court may hold accountable any person aged 18 or older at the time of the crime without regard to the individual’s official duties or functions. Therefore, heads of state, legislators, and other high-ranking government officials are not exempt from criminal responsibility.

All nations that are parties to the Rome Statute must cooperate with the court in investigation, prosecution, and enforcement of the court’s judgments. The ICC is financed primarily by dues from states that are parties to the Rome Statute. Other funds may be supplied by the United Nations, if the General Assembly approves, and from voluntary contributions of governments, international organizations, businesses, and individuals.

2. HAGGLING OF THE ICC WITH THE SUDAN GOVERNMENT

How did we come so far up to where our attention has been drawn by the ready sword in the hands of the three women Justices of the ICC who have been mandated by the UN Security Council to decide the fate of the sitting Sudanese President? In my analysis, the answer lies in the deep rooted injustice and unfairness of the International Criminal Law on the powerless countries like the Sudan who has no say in the Security Council.

The ICC has been mandated by the Security Council to investigate the alleged criminal cases in Darfur crisis when it is very clear that the Sudan has nothing to do with the ICC because it has not ratified the Rome Statute for this international legal system; the same way the USA, China and Russia have refused to endorse the powers of this court on their citizens. In this unprecedented case, someone is left to wonder why USA, China and Russia failed to veto the recommendation of the Security Council for referral of Darfur alleged crimes to the ICC in the first place if these powerful world governments are just and fair in their international dealings?

The failure to veto the referral is the first mistake of the three permanent members of the Security Council who do not believe in the powers of the ICC (with the exception of France and UK who have ratified the Rome Statute). Abstaining of some Security Council members from voting was ineffective when they already knew in advance that the majority were going to vote for the referral. This is like masking your skin to look different from outside.

The funny thing that somebody does not know whether to weep or laugh at is that China and Russia have run to the Sudan, pretending to be on the side of the Sudanese President when actually they were part of the construction of the ICC crisis with the government of the Sudan.

This hypocrisy my suggest their ulterior motives of seeing the Sudan back to the undesirable ‘Square One’ of the war, where China and Russia will be happy to generate good income from arms and fighting-jets sale to the country. Their ‘Rush Hour Intention’ in the Sudan is highly suspected and so China and Russia must be told to search their souls and apologize to the government of the Sudan for the wrong start of their diplomacy on the plight of the Sudan by giving Ocampo power to gamble with the peaceful future of this country. At least the hidden agenda of the USA had been known because the former Bush’s Administration was after the ‘Regime Change’ in the Sudan, using the CPA tool or any other shortcut tool that it could place its hands on for achieving American interest (not Sudanese interest) in the Sudan. This was clear in the language of justification of USA sanctions on the Sudan. The USA knows very well that the very reservation expressed by the government of the Sudan against the ICC is the same as the one expressed by USA diplomats in Rome in 1998 when they voted against the Rome Statute because of suspicion that this court could become politically motivated to target USA soldiers and peacekeepers. And together with China, the USA knows that they objected to the court power to arrest and try citizens of countries that have not signed the Rome Statute, yet USA is pushing that the citizens of the Sudan be prosecuted in ICC when Sudan has not ratified it.

Another injustice of the global criminal legal procedures on the Sudan is the manner the alleged evidences filed by the ICC prosecutors has been supported tacitly or openly by the governments of France, UK, USA and other new members of the Security Council, when they know it pretty well that Ocampo has not seen the real Sudan (leave alone Darfur) beyond the drawn map in his office at The Hague. With the assurance of this support, Ocampo was not ashamed to copy all the supposed crimes that are prosecute-able by the ICC and paste them in his application without considering rules of evidence and procedures. His evidences were from the secondary sources, especially the report of the International Commission of Inquiry that was tasked by UN to find out exactly what had gone wrong in Darfur. It is well known in legal procedures that the ‘Inquiry’ is nothing but a signpost for a road to a full ‘Investigation.’ Unless the ICC does not follow the traditional legal practice, then it could get excused to set a new precedent of use of ‘Inquiry Materials’ as ‘Investigation Materials’ to build a legal case!

Statements of the witnesses mentioned by Ocampo also pose another legal incompetency questions as it is known that all of these witnesses were interviewed outside the scenes of the alleged crimes. They may be witnesses who have not witnessed the mentioned alleged crimes. It should not be ignored that the world is full of liars and people who are full of their own opinions, especially when the issue is about war atrocities. Everybody will tell his/her own story for achieving a selfish interest. Even if the witnesses were on the ground in Darfur before they took refuge abroad where Ocampo met them, the wisdom of Heraclitus, the ancient Greek philosopher who said “Eyes are bad witnesses when the soul is bad” should have been taken into consideration when examining their statements.

It is well known beyond any reasonable doubt that Ocampo has not even exerted effort to record statements from the accused Sudanese. He went ahead to file his case based on accounts from the one side of the accusers. Where is fairness of international law here even if the Sudan had to be a ratifier of the ICC and gave it an approval to go ahead with the criminal legal proceedings against the accused Sudanese citizens like what the government of Uganda did with the leaders of the Lord Resistance Army; a situation which is understandable for a government that is fateful enemy of the rebels.

Other documents that Ocampo received from the NGos are also suspected since it is well known in the world that emergency NGOs and humanitarian bodies (including UN agencies) do not compile positive reports of any area of their operations. The reports from these sources have been proven in most cases to be unreliable and inflated because they are mainly aimed to create sympathy within the donors so that they could urgently give out funds and other requested materials. Also documents from the opposition figures could be bias since opposers do not wish any thing good for a ruling government. The Sudanese agents who were used by Ocampo to obtain some documents that are supposed to supports the alleged charges could not be trusted not to have forged their proofs.

Now, if the ICC Women Justices tried to ignore the loudening alarms about the repercussions of the issuance of the arrest warrant on the Commander-in-Chief of the Sudan Army and blindly go by the ancient Greek saying that judges must “fight for the law [even if it is unjust law] as for the city wall,” then they will not feel ashamed to announce the issuance of the arrest warrant and tell Mr. Al Bashir to go to the ICC in The Hague and proves himself innocent before the international criminal law if he thinks the charges (genocide, crimes against humanity, and murder as an attempt to get rid of African tribes in Darfur: Fur, Masalit and Zaghawa) against him are unfounded. They will just do what the Chairman of Electoral Commission of Kenya did in December 2007 when he announced that Mr. Kibaki worn the elections when the Kenyan populace expected Mr. Raila to be the winner. The consequence of that unwise announcement was so bad to enter the dark chapter of history of Kenya. Not only should the ICC Women Justices listen to alarm bells of those who are concerned about the goodness of the Sudan, but also they should pay greater attention to what comes from horse mouth.

The whole world has heard it from President Al Bashir that no single Sudanese is going to be handed by the Sudanese government to the ICC even if he is a rebel who does not believe in his government. Al Bashir is a Sudanese and so he is not going to be handed by the government of the Sudan to the ICC. If any attempt is made by any other country to do this, Mr. Al Bashir has also stated it publicly that he shall fall dead “standing straight like a palm tree” and will never hide in a ‘Sewage Tunnel’ like Saddam Hussein of Iraq since death must come to every mortal being once in a life time. So, should the ICC think of going to a battle which is already lost if it had to protect its integrity and continuity!

3. THE ICC AND HANGOVERS OF COLONIAL HUMILIATION OF AFRICA

If the issuance of the arrest warrant is going to be the case, what would be the position of African Countries to see one of their members in the African Union (AU) being humiliated by the unjust ICC? Are they going to be spectators of the political game between the Euro-American controlled ICC and the government of the Sudan? Are they going to kill their conscience and suppressed to their sub-ego the African principle of Ubuntu: I am because we are and we are because I am? If the Ubuntu principle is not provoked by all African countries to rescue the Sudan from possible undesirable setbacks, then surely the whole Africa is going to be humiliated again by the former colonialists and their immigrants in North America who mistakenly went there long ago and eliminated the indigenous inhabitants (‘Red Indians’) so as to settle in their lands. It is good now that change has come to America with Obama becoming the boss that Africa boasts of. I hope this change is going to be real beyond election campaigns since Obama feels bitter about history of colonialists’ children who called African grandfathers ‘boys’!

Africa must say to the west, enough is enough for the past humiliation of slavery and colonization, and stand together to protect the sovereignty and dignity of the sitting presidents of African countries. Unless African heads of states and governments want to say that the Sudan is not an African but an Arab country to be left alone to struggle against the unjust western globalists as Palestinians have been left alone by their Arab brothers to carry their own cross with Israelis, then I think it is the right time for the thirty signatory African countries to resign from the ICC club if the Sudan President is humiliated. If African countries do not stand with the Sudan now to face the unprecedented challenges of the ICC, then they should go ahead to cut the Sudan and paste it on the map of the Middle East where majority of Arab countries are situated. But if African governments still think that the Sudan is a valuable African country, then they should tell the neo-colonialists of America and the former colonialists of Europe categorically that Africa is no more an infant of the West that needs constant tutelage as a justification that it lacks self-esteem and willpower. Africa must take its own lead in resolving its own problems and restoring its dignity because things have gone haywire since non-Africans took charge of Africa. Non-Africans do not care about Africans except their own selfish interests that they intend to gain from the Dark Continent.

African philosophy suggests that the current humiliation of African countries by the western world is a result of some hangovers of the struggle about the monopoly of ‘Reason’ by the white human beings of Europe and North America who still think that Africans are sub-human beings who are incapable of rationality, science, logic and all kinds of rigorous thinking endowed by God (or Nature) to civilized human person for prudent management of their own affairs and contexts. See the way those of Black E’tto and Drogba are insulted as monkeys in the European Football clubs when they try their best to be more professional in scoring goals than the Whites.

It is said in history of Western Philosophy that Aristotle laid down the justification of Slavery and Subjugation of women by saying that Only The Civilized White Men Are Rational Animals But Not Women Or Un-Freed Slaves Who Are Only Emotional Animals. This biased and prejudiced justification found its way in the English Magna Charta in 1215 that stated that all property-owning white men of England and their friendly white allies are born free, in the American Declaration of Independence in 1776 that stated that all property-owning white men who migrated from Europe to America and their white allies from other countries are born free and equal to pursue their life of happiness, and in French Declaration of Man’s Right in 1789 that stated that all property owning French men and their allies from other nations have the right to be equal, free and fraternal.

Aristotelian philosophy of non-inclusive rationality and humanity was blindly supported by Anthropologists like Lucien Lévy Bruhl who described Africans as savages with primitive mentality that is not sensitive of contradictions. He went further to say that African minds are perceptual only and occupied by magical/mythical ideas. The ideas of this superficial anthropologist were adopted by philosopher Immanuel Kant who thought that all Africans are like the few black slaves that are utilized by the whites in the west. Thus he said that all Africans are a dull “Decadent Race” that is good for nothing except servitude and entertainment of the intelligent superior white race; they are only full of emotions but lacks reason. Also according to Kant, unintelligent women who are married are not rational human beings but emotional subjects for satisfaction of men sexual desires; they are not fit to handle public affairs. Kant ideas were highly developed by Philosopher G.W.F. Hegel who said that Africa has no history because it has no Reason or “Absolute Spirit” that make human life intelligible as a continuum of “Dialectics.” He concluded that for Africa to get civilized it must be attached to the Western World and the Whites must go out to Africa to teach her human “Civilization.”

The reaction to these humiliations of Africa led to emergence of Negritude Movement and its determination for the pride about the black race and return to African roots without submission to “Inferiority Complex”, and also to Harlem Renaissance that was determined to restore the dignity of African History through intellectual black consciousness about the fundamentality of metaphysical rhythm with the nature and cosmic forces. It was argued that if emotion is African and Rationality is Western, and if the Westerners are proud of their superior rationality, then Africans should also be proud of their superior emotionality because the most important part of human life is the emotion. A human being without emotion is like a machine that does brilliant work but feels nothing about itself or its surroundings.

The Aristotelian foundation has even influenced the Church for a long time too until one of the Popes came up with a paradigm shift by declaring that All Human Beings Are Rational Persons Regardless of Their Races or Gender. However, despite this new inclusive universal declaration of human dignity, the practice of the Catholic and Anglican Churches up to the day remains to be desired since women are still not allowed to become priests in the Catholic Church and the blacks are still not given opportunity to become Popes in Rome or Head of Anglican Church in Canterbury.

The three Women Justices of the ICC are lucky to have been allowed to decide the fate of men in this 21st Century, thanks to the Declaration of Human Rights by the Catholic Church, Black Civil Rights Movements and the UN without excluding women or the black races from enjoyment of these rights. However, the current hurdle of the ICC with the government of the Sudan could be a sign of time that the UN is nearly getting into a direction of receiving a death certificate like what happened to the League of Nations after the World War II when it was strangled by some powerful countries who refused to cooperate with it under some circumstance.

4. END OF UNITED NATIONS AND BEGINNING OF GLOBAL NATIONS

The defiant of the UN from its mandate of ensuring peace above anything else in the world, and resorting to put justice ahead as the prime virtue in the current case of the Sudan with the ICC, is a possible sign that another international body that care so much for justice without due prioritization of peace is going to emerge as a replacement of UN in future. May be it will be called ‘Global Nation (GN)’ where the strongest nations will eliminate the weakest nations by defeating them in war with unequal battles and in competitions with unequal starts. This sign of time is a saddening moment for the emerging developing countries like Brazil, India and South Africa who have been looking forward to receiving permanent membership in the UN Security Council after its reform. If the ICC over-ambition and hasty decisions is risking the UN to die in peace in future, then the hopes for its future reform are getting thrown into oblivion of nothingness. May be it would look better for Brazil, India and South Africa to forget about their hopes and strengthen their ‘BRICS’ Club – Brazil, Russia, India, China and South Africa – to attract more members and become a new ‘Global Nation’.

The case of the ICC with the sitting President of the Sudan can be interpreted as part of the orchestrated Western humiliation and undermining of Africans to solve their own problems with their own solutions. As it was said long ago before the UN came into existence that Africa is “Incapable of Reason” and so it must be colonized so that it is attached to the civilized West and taught how to be different from wild animals, sadly, it is still said today after the UN has come into force that Africa is “Incapable of Justice” and so it must be neo-colonized by globalizing it in accordance with Western Adjudication and with direction from Westerners who should teach African governments how to avoid Genocides, War Crimes and Crimes Against Humanity. This humiliation and Superiority Complex from Euro-Americans on Africans is the root reason why no single African country is allowed so far to become a permanent member of the UN Security Council. African countries are only given hang-ropes because they are known of rushing to endorse Ideas of their Western Masters without thoughtfulness. If a critical question could be asked here: where do the genocidal African governments get the weapons of mass destruction from? Do African countries manufacture machine-guns, missiles Jet-fighters and other mass destruction arms? If this is how the so-called civilized united world is supposed to be, then Africa should be proud to go back to its so-called primitive roots as long as this will keep it far away from unjust Western interactions and influences. The Civilization imported from Western countries has brought so many curses on African peoples. Hence, it is better for Africans to go back to “State of Nature,” fearing only wild animals, than live in undignifying Westernized “Nation States.”

*James Solomon Padiet is a Sudanese contributor. He could be reached at [email protected]