Bashir Indictment Opposed by Half of the World

October 28, 2008

By Lenka Andrysova

Nearly half of the countries in the world are demanding that the International Criminal Court postpone prosecution of the Sudanese President Umar Hassan Ahmad al-Bashir according to an October story in the Economist. To reach this end, these countries call for the United Nations Security Council to declare that the actual arrest of Mr Bashir is a threat to the peace, breach of peace or an act of aggression as stated in the UN Charter. However, what is at stake if the current situation in the region could not be described as peaceful and stable at all.

What is more, it is President Bashir who has partially contributed to the disastrous state in Sudan. Bearing this in mind, the International Criminal Court (ICC) charged him with most serious crimes. Mr Bashir is facing the accusation of committing the crimes of genocide, crimes against humanity and war crimes in Darfur, which makes his case unprecedented. That is to say, nobody before him stood in front of the ICC wearing a burden of triggering genocide. As a result of his decision, 98 percent of the villages inhabited by the Fur, Masalit and Zaghawa people are said to be attacked and destroyed. According to ICC prosecutor Luis Moreno-Ocampo, the Sudanese president should be held responsible for internal displacement of 2.7 million Sudanese during five-year conflict, out of which estimated 300,000 lost their lives. Despite these serious claims, 53-member African Union (AU) and 57-member Organization of the Islamic Conference (OIC) stand by him.

These Afro-Arabic organizations representing a remarkable part of the world population suggest that the arrest of the Sudanese leader would undermine the stability in the region. They are right as to that fact, as the removal of Mr Bashir would definitely alter the situation in Sudan, one of the most unstable countries in the entire world, where unfettered warlordism flourishes. Clearly, as Bashir is the top man in his country, his prosecution would fundamentally shatter the Sudanese political pyramid. The Sudan’s president is not only chief of state, but also head of government. He even substitutes for the legislative body, since the Parliament has not been absent since 1999 when Mr Bashir himself dissolved both chambers. Hence, putting the most powerful man in the country into jail would mean that Sudan would lose all the political leadership over night. This would lead, according to heads of member states of the AU and OIC, to a catastrophe.

However, having arrested the Sudanese president, political changes in Khartoum could spark much needed reforms in the country. If Mr Bashir was convicted, the power would be likely transferred into the hands of the existing First Vice President Salva Kiir, who is in favor of independence of the Southern Sudan, or to the Second Vice President Ali Osman Mohamed Taha, who would probably initiate some changes, too. As a result, Sudan could start a new era of development with thus far virtually unknown leaders. If the ICC does insist on arresting the Sudanese president, this failed state in the third world could be given a chance for a much desirable change.

The argumentation of the African and Arabic nations which lies in retaining status quo should not convince the UN Council since it also did not take into account that Sudan would soon undergo some changes anyways. By July 2009 Sudanese people are slated to hold elections for their president and representatives. If the choice of new governing elites were to turn democratic, a wind of change would surely blow off the president who seized power during a 1989 military coup.

Similarly, Human Rights Watch, an organization following development of this case since 2001, strongly believes that demands of the AU and OIC are irrelevant. According to their report, a deferral of an ICC investigation risks legitimizing political interference with the work of a judicial institution and could set a dangerous precedent for accused in other situations. Therefore, any exception must be extremely rare, which should be valid for the Sudanese case as well.


ICTY Case Against Karadzic Moves Forward

October 28, 2008

By Simone Pereira

Much excitement was generated earlier this year when Radovan Karadzic, former Bosnian Serb leader was arrested in Belgrade and charged by the International Criminal Tribunal for the former Yugoslavia with war crimes and genocide. Since his arrest in July, Karadzic has pleaded Not Guilty to these charges, and is now claiming that genocide never occurred in Srebrenica. According to Goran Petronijevic, Karadzic’s chief legal advisor, the accused will attempt to show how the killings occurred in response to an escalation of events, rather than being pre-meditated, as the charge of genocide implies. Although his chances of getting acquitted are a long shot, Stephane Bourgon, a lawyer working on Karadzic’s defense, has said that such an argument should not be easily dismissed. Witness bias and the nature of political speech – purposely inflammatory and deterministic – may be argued as coloring the case against Karadzic. However, the prosecution remains positive that the case against Karadzic is strong enough to withstand such frivolous attempts by the defense.

In August Karadzic attempted to court more controversy by requesting former U.S. Secretary of State Madeline Albright, Richard Holbrooke and former chief war crimes prosecutor Richard Goldstone to appear as defense witnesses in his case. He claims to have struck an agreement with the U.S. State Department in 1996, wherein he agreed to “keep quiet” and “disappear” in exchange for immunity from the current trial. This, he said, was violated when news of the deal surfaced and he was prosecuted by the Tribunal. Holbrooke has vehemently denied the passage of any such deal. Karadzic is using this as another reason for why he believes this entire case against him should be dismissed.

Of his own accord, Karadzic is set to appear as a witness in the re-trial of another Bosnian Serb indicted and convicted of war crimes, Momcilo Krajisnik. Krajisnik, the former President of the Republika Srpsika Parliament, is set to appeal his 2006 conviction by the Hague Tribunal where he was sentenced to 27 years imprisonment for his involvement in the atrocities at Srebrenica (a region of Bosnia). His lawyers are hopeful that Karadzic will provide crucial testimony; evidence which was not available at the time of the original trial because of the latter’s fugitive status.

All these developments display the desperation and fear of Karadzic as the Tribunal proceeds in its case against him. After finally being caught, Karadzic will be held accountable for the events that took place under his leadership. The prosecution is determined in their attempt to bring justice and closure to the many victims and to the international community as a whole, all of whom have been witnesses to the horrors that took place in Srebrenica.

Significant Progress for Court over Summer

October 27, 2008

By Simone Pereira

Summer 2008 proved to be an effective and productive term for the ICC. After thirteen years on the run, former Bosnian Serb leader Radovan Karadzic was arrested by the International Criminal Tribunal for the former Yugoslavia in Belgrade on July 18, 2008. A few days earlier, ICC chief prosecutor Luis Moreno-Ocampo issued an indictment to Sudan’s President Omar Al-Bashir on war crime charges for the latter’s role in the country’s civil war. Although both cases can arguably be charged as taking too long in the making, it is safe to say that such results go a long way to re-affirming the reasons why a court like the ICC is necessary in today’s world.

Karadzic faces fifteen charges against him, including several counts of war crimes, crimes against humanity and genocide. Along with Ratko Mladic, it is believed that Karadzic orchestrated and planned the persistent attacks against individuals of different national, political and religious bases other than the Serbs. This culminated in the murder of over 8000 people during his four years in office. After the arrest and trial of Slobodan Milosevic, that of Karadzic is the second major arrest of political leaders associated with the breakup of the Former Yugoslav Republic.

It is believed that Karadzic lived for many years within Belgrade itself before finally being captured. His disguise – a full and heavy beard, long hair and some loss of weight – was convincing enough to have fooled authorities during their previous encounters. It is not until the political changeover in government to the more pro-West leadership under Boris Tadic that significant breakthroughs in the case have been achieved. The case now stands before the International Criminal Tribunal for Yugoslavia.

In the mean time, chief prosecutor Moreno-Ocampo has issued an indictment for Omar Al-Bashir’s arrest. Reasons for doing so include Al-Bashir’s apparent attempt to brutally marginalize the three minority groups in Sudan. If the Court’s pre-trial judges approve the indictment, Al-Bashir will be the first sitting president to be charged with crimes against humanity. Not only is this a bold move on the part of the court, but it is also a powerful deterrent to potential offenders against committing such heinous acts.

The indictment against Al-Bashir comes at a time when the ICC’s raison-d’être comes into question. Clearly an action of this nature against an imposing dictator is noticeable and brings to light the plight of the Sudanese people. To date, Al-Bashir’s regime has been responsible for the murders of over 300,000 people, and it is about time they stood accountable for their actions. An intransigent leader like Al-Bashir cannot be allowed to continue in power while his regime stops at nothing to get their way.  Because of the limits of a nation’s sovereignty, foreign states are unable to indict or prosecute leaders of different nations. This is why the ICC, with its largely universal jurisdiction can take charge and adopt those cases which other nations are unable to pick up on. The upcoming months will be key in determining the pace and direction that the court will adopt with respect to both these high-profile cases. With ten years under its belt, the Court now seems to have adopted a more proactive approach against offenders.

ICC Not Ready to Consider Lubanga Release

June 25, 2008

Following a hearing earlier this week, the Trial Chamber judges at the International Criminal Court stated that it is premature to consider the release of alleged war criminal Thomas Lubanga. The statement comes a week after the Court indefinitely stayed proceedings after the Office of the Prosecutor (OTP) refused to disclose potentially exculpatory materials because of confidentiality agreements with the document providers, namely the U.N. That decision is being appealed by the OTP, and the trial Court has decided to await the result of the appeal before any discussion of releasing Lubanga.

According to one source, the U.N. and the OTP offered a compromise where the judges would be able to review the documents under U.N. supervision. However, the U.N. refused to allow any note taking during such review, and the proposal was wholly rejected by the Court. In a statement, the judges maintained that both the trial and appeals chambers must be able to study and retain the potentially exculpatory documents in order for proceedings to continue.

Still, the OTP is “confident” that there will be a solution, with U.N. cooperation at the heart of it. Chief prosecutor Luis Moreno-Ocampo reassured that “there will be justice for Lubanga’s victims.” The defense, meanwhile, continued to push for Lubanga’s release and reaffirmed their position that there cannot be justice “without strict interpretation of the law.”

Caught in the middle of the controversy are the alleged victims. Luc Walleyn, representing the victims at the ICC proceedings, recognized the need for justice but also expressed wariness that the Court was being too rigid, asking the Court to act so that “an excess of justice doesn’t lead to injustice.”

Practical concerns regarding Lubanga’s potential release have also put considerable pressure on the ICC. According to Carine Bapita Buyangandu, another lawyer representing the victims, setting Lubanga free would “set fire” to the Ituri region in the DRC. Fears of unrest and violence are yet another factor the Court must weigh in making its decision.

To be sure, the concerns of the victims and their representation are understandable. If the Court stayed the trial because of a procedural technicality then there would certainly be questions about an “excess of justice.” But the issue here – the failure of the OTP to disclose potentially exculpatory documents – is not a minor procedural snag. It bears on the most fundamental rights of the accused, the ability to provide a complete defense. Allowing the proceedings to continue with the defendant stripped of that right would seriously question the legitimacy of the ICC as an institution.

Thus far, the Court has carefully balanced the need for justice against the need for a system that adheres to the highest standards of justice. Even if Lubanga is ultimately released, the Court has set a high standard of integrity in its first trial that should assuage U.S. concerns over the legitimacy of the ICC.

— Dennis Doyle

The ICC and Sudan

June 24, 2008

Lately there has been disagreement as to whether the ICC’s imminent arrest warrants for certain Sudanese leaders, which could possibly include Omar al-Bashir, the current president of Sudan, will help or hinder the situation in Sudan.  Two experts in the field, Alex de Waal, an expert on Sudan, and Jerry Fowler, president of the Save Darfur coalition, met last week at the Holocaust Museum to present a lecture and discuss the current situation in Sudan, which was sponsored by the Committee on Conscience.  Both agreed that they support the ICC in that the Sudanese leadership needs to be held accountable for its atrocities, but they also agree that the current timing of the future indictment of the leadership in Sudan could present problems.  De Waal made the point that indicting a head of state while he is still the current head of state could have possible negative repercussions such as the government lashing out even more because it is humiliated by the indictment or impeding the international community from giving humanitarian assistance.

De Waal, Fowler, and others are rightly desperate over the plight of Darfurians, whether refugees or those civilians still left hanging on.  The suffering in Darfur is growing while the humanitarian assistance is being spread thin.  Meanwhile European and other countries continue to procrastinate to establish a multi-national force that will help protect Darfurians yet, at the same time they support the ICC in its prosecutions.  Fowler and his colleagues view the European nations’ actions as hypocritical, and they view the ICC as being used as a venue of that hypocrisy instead of purposefully and effectively doing what those nations can to help Sudan.  Fowler argues that arrest warrants by the ICC that have little chance of being enforced are not worth inciting the Sudanese leadership to take out the repercussions of the arrest warrants on the Darfurians.

De Waal and Fowler also blame the bad timing of the ICC’s future indictment of the Sudanese leadership on the lack of seriousness on the part of the U.N. Security Council.  Fowler believes the Security Council referred the case of Sudan to the ICC in 2005, not to seek justice or accountability, but rather because it was politically expedient.  And now the Security Council and the international community are reaping the consequences of the Security Council’s short sightedness because of the poor timing of the upcoming indictments.

Whether European countries will form a multi-national force to protect Darfurians or whether the Security Council has taken the crisis in Sudan seriously is not at issue here as much as the arrest warrants that are to be issued for Sudanese leaders.  The key issue is how Sudan and the world will handle the ICC’s indictment of the Sudanese leadership.  If the timing truly is not right now, when WILL the timing be right to indict the corrupt Sudanese leadership? There are no indications that the Sudanese leadership would stop their present atrocities in Darfur if the ICC prosecutor, Luis Moreno-Ocampo, stopped investigating and prosecuting. If Ocampo has evidence against the Sudanese leadership, he must proceed in the case against them. In any case he cannot allow the impression that a perpetrator can escape accountability by a (probably temporary) suspension of his or her atrocities. The Sudanese leadership will stay in power as long as they can maintain their power, which they will do by continuing to incite violence as long as possible.

The ICC’s imminent indictment of Sudanese leaders may not stop the violence and power struggles that are occurring daily in Sudan, but the indictment will send a signal to the Sudanese leadership that they will be held accountable by the international community rather than given impunity in the wake of committing mass atrocities. In the end, the effect of the ICC’s indictment of Sudanese leaders will be a positive one. As Jordanian ambassador Al-Hussein has stated, “The ICC is the only institution that keeps the Sudanese government awake at night.”

-Ashley Diaz

ICC Halts Lubanga Trial

June 18, 2008

The first ever trial of the International Criminal Court may be over before it starts. Last Friday the Court issued a decision staying the trial of Thomas Lubanga, citing serious concerns over the Prosecution’s non-disclosure of potentially exculpatory documents. According to the Court, the Prosecution interpreted Article 54(3)(e) of the Rome Statute “broadly and incorrectly.” Under that provision, the Prosecution may withhold confidential information if it is used solely as a “springboard” to gather other evidence. The Court held that the Prosecution exceeded the limits of 54(3)(e) by using the confidential evidence itself to build the case against Lubanga. Because of the confidentiality agreements with the information providers (primarily the U.N., which provided 156 of the 207 controversial documents) the Prosecution cannot disclose these potentially exculpatory materials to the Court or the defense.

Currently, the Prosecution is working with the U.N. and the other document providers to obtain consent to disclose the materials, but it has been a slow process. Security concerns have the U.N. reluctant to permit wholesale disclosures of the documents. Whether the providers consent to partially redacted disclosures, and whether any such redactions would diminish the probative value of the potentially exculpatory material remains to be seen.

As a potential solution, the Prosecution submitted “alternatives” to the withheld documents, which allegedly contain the same evidence as the withheld documents. However, without access to the non-disclosed documents, the Court has no basis to determine whether the evidence in the alternative submissions is comparable to the evidence in the withheld documents. Allowing the Prosecution, instead of the Court, to rule on the adequacy of the alternative submissions would compromise the rights of the accused. As a result, the Court rejected this plan and put a stay on the proceedings, which could soon evolve into a complete discontinuance. A hearing to consider the release of Lubanga is scheduled for Tuesday, June 24 at 9:00 p.m. ET.

Releasing Lubanga, an alleged war criminal accused of forced conscription of children under the age of fifteen, would no doubt be a major blow to the international community and the people of the DRC. At first blush, it looks like a complete disaster for the nascent ICC, an institution whose legitimacy has been called into question by its major opponent, the United States. However, while it would be tragic to release a suspected war criminal like Lubanga because of a procedural error, it would represent a resounding declaration that the ICC is committed to justice at the highest costs. The Court acknowledged the gravity of excluding the victims, citizens of the DRC, and the international community from justice by halting the proceedings. Nevertheless, it reasoned that the loss of justice in one particular case does not outweigh the need to preserve the overall integrity of the ICC. Such a determination was courageous given the pressure to get it right during the Court’s inaugural case.

The last thing the ICC wanted was to have a major hitch in its first ever trial. The irony, as it turns out, is that a seamless trial could not have pronounced the same commitment to justice that the Court demonstrated by staying the Lubanga proceedings. There was a high price to pay to solidify the integrity of the Court – a war criminal may be set free. Critics like the U.S. may characterize this as an embarrassment, that in its first ever trial the ICC botched the case and justice was not served. But in reality, the Court shined in its first true test by accepting the consequences in exchange for a long-lasting prospect for international justice. And while the Prosecution deserves blame for its procedural error, there is hope that the Court’s decision will form much needed precedent in otherwise uncharted territory.

At the end of the day, the Court’s decision to stay the Lubanga proceedings, while unintended and unfortunate, should nonetheless come as a forceful message to the United States that the ICC is not some politicized kangaroo court – it is a court of integrity, committed to justice at the highest level.

— Dennis Doyle

ICC issues fourth DRC arrest warrant

April 29, 2008

The ICC has just made public an arrest warrant originally issued in 2006, against Bosco Ntaganda, a former senior officer with the Patriotic Forces for the Liberation of the Congo (FPLC).  Ntanganda is also a former associate of militia leader Thomas Lubanga, whose trial in The Hague is set to begin in June.  He is charged with recruiting child soldiers to fight in the devastating civil war in the DRC.