THE likelihood and possibility of bringing the Sudanese leader Omar al-Bashir to the International Criminal Court for genocide has sparked a lot of debate. If it goes ahead it would set a precedent in international law which could open a ‘floodgate’ of possible indictments that could disrupt many governments across the world.
The Prosecutor, Luis Moreno-Ocampo, filed genocide charges Monday, accusing al-Bashir of masterminding attempts to wipe out African tribes in Darfur with a campaign of murder, rape and deportation by government-backed Janjaweed militia.
On the face of it, and given the extent of atrocities in Darfur, it seems a clear-cut case and the indictment, from a layman’s point of view, would seem almost inevitable.
A closer look at the relevant international law, it seems an uphill struggle for al-Bashir to be tried at The Hague, under the Rome Statute (the statute which founded the ICC).
Bringing a case to the ICC is no easy task.
A close look at the process of indicting a sitting Head of State or anyone for that matter, under the ICC Statute will shed some light.
Step One
For the Rome Statute to come into effect and establish the ICC, it had to be ratified (accepted as law) by at least 60 states under Article 126(1). This was the easier task.
Currently the Statute has 139 Signatories and 107 Ratifications as of July 2008. Signatories give weight to the general importance of the law, but ratifications are more significant.
10 countries deposited their instrument of ratification simultaneously at a special UN ceremony on 11 April 2002, crossing the threshold of 60 ratifications needed for the Rome Statute to enter into force. Due to their concerted efforts, each country was designated the 60th State Parties member.
African countries that have not ratified the Statute include Angola, Cameroon, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Libya, Mozambique, Sudan, Zimbabwe, among others. In Europe, Bulgaria, Cyprus, Hungary, Poland and Russia are some of the countries still to ratify the Statute.
The United States has not signed or ratified the Statute; i.e. it is not a member of the ICC. The current U.S. administration does not intend to join the ICC, according to Wikipedia.
Then U.S. President, Bill Clinton, signed the Rome Statute in 2000, but President George W. Bush "unsigned" it on May 6, 2002 — a month after the Statute reached the threshold number of ratifications required to establish the ICC.
It is important to note that the ICC will only have jurisdiction over crimes committed after 11 April 2002, when the Statute entered into effect, according to Article 11(1).
Step Two
According to Article 12(2), before the ICC can act, its jurisdiction has to be accepted by the ‘TerritorialState’ (where the crime was committed) or the ‘State of Nationality of the Accussed’. The country has to be Party to the Statute or must have ratified the Statute. That means all countries not party to the Statute are outside its jurisdiction, cannot be tried under the ICC.
Individuals do not have to be resident in the State party, but must have committed the crime in that country, after 11 April, 2002. They can be arrested anywhere in the world.
Step Three
A case at the ICC can be initiated in one, or all of three ways according to Article 13. Firstly, a state that is Party to the Statute can initiate an investigation by the ICC Prosecutor. This is their basic right after having ratified the Statute, so for instance the U.S. cannot initiate an ICC investigation because it is not party to the Statute.
But the U.S. can do so as party to the United Nations Security Council. This is the second way in which a case can be brought before the ICC Prosecutor – through the U.N. Security Council. At least nine members of the Council should vote in favour, and none of the five permanent members should veto that vote, for the investigation to pass. The Council members need not be signatories to the Statute – it is not a precondition.
This mandate is based on the special role of the Council under the U.N. Charter to maintain international peace and security. Under Article 87(7) the Council could be requested by the ICC to enforce cooperation from state – party or not to the Statute.
The third way is for the ICC Prosecutor to initiate investigations him(her)self, on ICC authority. Under Article 15, this has to be proprio motu i.e. on his own, (a document issued by the Prosecutor on his own initiative and personally signed by him).
In this case a Pre-Trial Chamber of the ICC should be convened to establish “reasonable basis to proceed with the investigation” and the “case has to fall within the jurisdiction of the ICC”. To fall within the jurisdiction of the ICC the case has to satisfy the following conditions: (1) it has to be classified as genocide, crime against humanity, and war crime only, (2) committed in a Territorial State (i.e. a State that signed and ratified the Statute) or (3) the Security Council should allow it to be investigated by a 9 member non-veto vote.
Step Four
Article 1 refers to the admissibility and complementarity of the case in national courts. The ICC will not proceed if the case is already being dealt with in national courts, or a state has decided not to proceed with it, or a person has already been tried for the same crime, or the case has no sufficient grounds to be further investigated.
There are exceptions to this rule though.
As a ‘safety net’ the ICC will have jurisdiction in ‘exceptional cases’ to prevent impunity for serious international crimes. Such ‘exceptional cases’ are cases where states turn a blind eye to the crimes (are unwilling to prosecute) or have no capacity to prosecute (in material and manpower terms).
However, there is a legal loophole.
Under Article 19(4) admissibility can be challenged at various stages, but only once by one person or state. Under this Article any State (which is Party to the Statute) can “assert its superior right to exercise that jurisdiction”. In laymen’s terms, any State that has ratified the Statute, and proves jurisdiction, can block a case being investigated.
The Prosecutor must notify all States with jurisdiction of any investigations commenced. This is why it is difficult to try a sitting Head of State, because his government can effectively block the case being investigated by claiming jurisdiction, and especially if that State has not signed and/or ratified the ICC Statute.
Other challenges could emerge from: the person being investigated, and the State can refuse, under Article 12, the jurisdiction of the ICC.
Sudan at the ICC
Given these conditions it would, not only be very difficult to bring Sudan’s Omar al-Bashir to the ICC, but near impossible, without the Security Council endorsing the indictment.
Firstly, Sudan is neither a signatory nor has it ratified the Rome Statute. The country (State) is also likely to effectively block the indictment as al-Bashir is still the sitting President. He will not accept his own indictment, unless he loses his mind.
A vote on the Security Council is unlikely to pass as China could effectively veto it, given the cordial relations between the two countries.
Besides, if the case is tried, it could open a floodgate of cases brought to the ICC and many other Heads of States like President G.W. Bush and Gordon Brown (and Tony Blair) could be investigated.
Omugabe • Dziva@sanandresano.com Subject: Look Inward & Look East for Self-development, Zim Patriots! Sun, 20 Jul 2008 16:53:56 • Itayi
The selfish aims of Europeans in African are NEVER in the best interest of Africans!
Let's not delude ourselves.
Any 'floodgate' to the ICC would be directed against NON-EUROPEANS!
Brown, Blair and Bush slaughtered more humans UNPROVOKED in Iraq than all the atrocities in Sudan many times over.
Where is the cry for these European mass murdering criminals in Iraq to be tried by the so-called international criminal court.
The eurocentric international criminal court was CONCEIVED BY EUROPEAN COLONIALIST CRIMINALS in order to promote another version of evil European world domination.
Only Self-hating Africans will support any organization create by the evil Europeans for the evil Europeans.
The arab-muslim criminality taking place in Africa since the 7th Centuries needs to be eradicated.
However, Africans should take the lead in ridding the Continent of the evil emanating from the Arabian Peninsula and ignore the Europeans who have their own plunderous aims in Africa.
In the fight between the twin evils of arab-islam and european-christian, Africans should maintain a neutral position. Let those invading foul influences destroy themselves.
Africans should not give any active support for the eurocentric ICC Court of racist Criminals.
Africans interest in Sudan should be to destroy arab-islamic influence on the Continent.
The selfish aims of Europeans in African are NEVER in the best interest of Africans!
Omuhle • n/a Subject: n/a Sun, 20 Jul 2008 16:02:58 • It's amazing how youu can present an article based on fact and it is so unbiased it is the first article of yours we enjoyed reading - educational even.
Al-Bashir should have nothing to hide if he believes he is innocent. Simply prepare a legal defense team and fight the accusatios. But interestingly we know he is guilty as sin.
In the same light, George Bush would have the same crimes to answer to for what is going on at Gitmo and Iraq.
Once again, who would come to the aid of Sudan? China. Is it any coincidence that they are the main beneficiary of Sudanese oil contracts? This world cannot sustain this much longer. Playing us Africans off, watching us kill each other, supporting one side simply for access to our resources. Have you ever wondered why there are wars in basically poor countries like Somalia? They can't afford piped water, streetlighting or any other facet of functional government but they never seem to run out of weaponry for war. Who supplies them? In exchange for what? When we answer these questions we will wake up and realise we are been used. We are fighting proxy wars on behalf of eastern and western protagonists who not only get to use our people as cannon fodder but are also getting the resources (which are at the centre of the fight) for practically nothing, except merely defending illegitimate governments in the UN. It's sickening!
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