Indicting President Al Bashir

Transcription

1 Mehari Taddele Maru Executive Director African Rally for Peace and Development Indicting President Al Bashir What implication for human security in Sudan and Beyond

2 The ICC and Africa: Complementarity or Incompatibility? Mehari Taddele Maru Pro-Bono Executive Director African Rally for Peace and Development

3 Brief Introduction I. Introduction to ICC and Rome Statute II. Justice and Peace: What linkage and Whose Priority? III. What Precedence? Accountability, Immunity and Impunity IV. Public Perception: Double Standard V. AU Position and ICC State Parties VI. Way Forward

4 I. Introduction to ICC and RS Rome Statute (RS) and the ICC ICC established in June-July 1998 in Rome by UNGA The Rome Statute: Yes 120, No 7 China, USA, Abstain 21 Entered into force in July 2002 with 60 ratifications: Temporal Jurisdiction begun

5 Brief Introduction to ICC States Parties to Rome Statute in green [June 2008: Wikipedia]

6 Introduction to ICC and RS All EU and Latin America, 30 African Countries 40 Signatures: Object and Purpose of RS has to be adhered USA and Israel unsigned post facto

7 Introduction the Rome Statute Universal Jurisdiction: defined by solely the nature of Crime States Duty to prosecute Regardless of 1. Location of crime 2. Nationality of suspect or victim Of certain crimes...

8 Introduction ICC Jurisdiction over 1. The Crime of Genocide 2. Crimes Against Humanity 3. War Crimes 4. The Crime of Aggression: To be defined in 2010 Hierarchical Nature of the Crimes

9 The Case: The Prosecutor v. AL BASHIR Referred by UNSC Resolution The Parties to the Case ICC Prosecutor: Mr. Accused (defendant): Omar Ahmad AL BASHIR Sitting President of Republic of Sudan

10 The Charge The Alleged Universal Crimes The Crime of Genocide Crimes against Humanity War Crimes Against The Fur, Masalit and Zaghawa ethnic groups

11 The Charge The Period and Location After 1 July 2002 In Darfur Sudan Not directly by Al Bashir: Through State Apparatus Masterminded the alleged crimes

12 The Evidence Prosecutor s evidence are almost similar to the US government s evidence collected from 1,200 Darfuri refugees in neighboring and other 17 countries USA based on this evidences label the attacks by Sudan s government and its militias as genocide Four villages - Bindisi, Mukjar, Arwala and Kodoom in west Darfur

13 The Evidence The Pre-Trial Chamber I of the ICC UN commission of Inquiry on Darfur requested observations of Antonio Cassese the head of the Commission Louise Arbour the UN High Commissioner for Human Rights

14 II. Justice and Peace: What linkage and Whose Priority? 1. Eminent Jurist: Prioritize Peace, then provide justice of varied kind The Princeton Project Imprudent or untimely exercise of universal jurisdiction could disrupt the quest for peace and national reconciliation in nations struggling to recover from violent conflicts or political oppression

15 Justice and Peace:.The Princeton Project Prudence and good judgement are required here, as elsewhere in politics and law. [And universal jurisdiction should be used] in a reasonable solicitude for the quest for peace.

16 Justice and Peace: Immunity Prosecuting a Sitting president A famous British jurist Lord Browne- Wilkinston He said: It is naïve to think that, in such cases, the national state of the accused would stand by and watch the trial proceed: resort to force would be more probable. In any event the fear of such legal actions would inhibit the use of peacekeeping forces when it is otherwise desirable I believe that the adoption of such universal jurisdiction without preserving the existing concepts of immunity would be more likely to damage than to advance chances of international peace.

17 Justice and Peace: What linkage and Whose Priority? 2.The UNSC and AU PSC Peace today, justice tomorrow Justice necessary for lasting peace But as the same time for Darfur: UNSC and AU said: Promote healing and reconciliation Create Institution to that effect

18 Justice and Peace What linkage and Whose Priority? 3. The International HRts Organizations Justice today.peace will follow tomorrow Justice requisite for lasting peace Regardless of the consequences Prosecute Al Bashir Prosecute Joseph Coney and others

19 Justice and Peace: Local priority What linkage and Whose Priority? 3. Local Community Peace and Justice today.peace must come first Different researches: in Uganda Example Akena, Marek, Benda and Darfuris in Darfur

20 Justice and Peace in conflicts Transition, Conflicts and Justice B. Is Justice Delayed for the sake of peace, justice denied? Cases of South Africa, Uganda, Kenya, Zimbabwe Imagine Apartheid and all involved were taken to ICC

21 Justice and Peace in conflicts Transition, Conflicts and Justice Uganda: GOU referred it to ICC Joseph Coney requested immunity for an end to war In cases of Mass Amnesty: peace is prioritized Philippe Kirsch, President of ICC said Limited Amnesty

22 III. What Precedence? Accountability, Immunity and Impunity Accountability to ICC? What will happen if ICC always removes a sitting president? What is the implication for democracy? Advent of ICCio-cracy?

23 ICC-Fear Factor: Deterrence? March 12, 2007 Cabinet of GoS was divided on the ICC indictment of Haron and Ali Kushaby Salva Mini Acor Minawi The Sudan Tribune Al-Rai Al-Aam, Will indictment on Al Bashir unify the government: GoSS

24 IV. Public Perception Double Standard: Public and AU All four investigation by ICC in Africa Sudan, Uganda, DRC and CRA Why not Iraq War, The Sunni Killings, Chechnya, Afghanistan ICC manipulated by supper powers

25 AU Position Between Impunity and Solidarity PSC July : Indictment may lead to further suffering of the people of the Sudan and greater destabilization with far-reaching consequences for the country and the region

26 Brief Introduction I. Requested UNSC to defer the prosecution II. Independent High-Level Panel Examine the situation Para 5 of the UN Resolution 1593 Justice together with reconciliation and healing

27 AU Position in detail PSC July : 1. Reaffirming the previous stands of the AU Balancing Peace and Justice Misuse of indictment 2. Support for truth and reconciliation process 3. Support to complementarity 4. Concerns on Double Standard 5. Threat to stability and national institutions 6. Threat to DPA, CPA, Abyei Protocol

28 AU Position: This is inline with its previous decisions 1.El Sheikh AU Summit Sharm: 30 June 2008 AU s concern with the misuse of indictment against African Leaders

29 AU Position 2. July and 19 July 2008: AU PSC Expressed its concerns to ICC Justice should not Impede or Jeopardize efforts aimed at promoting peace

30 AU Position 3. Panel of the Wise: Complementary goals of combating impunity and promoting peace and reconciliation and healing in Darfur

31 Some Concluding Remarks J. F. Kennedy: What then? 1. Let s Assume Bashir is sentenced; what then? 2. Let s assume Bashir is arrested; what then?

32 The Role of Prosecutors Factors in prosecuting: The deterrence effect Retribution considerations Contribution to peace and stability Timing

33 Remarks 1. Management Oversight by State Parties on ICC Art AU Position VS. 30 African State Parities to ICC