Legality of ICC Action against Sudan President

 

 

Legality of ICC Action against Sudan President

Ali Asghar Kazemi

March 7, 2009

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On March 5, 2009 the International Criminal Court issued a writ of arrest against General Omar al Bashir, the incumbent Sudanese president, for war crimes and crimes against humanity. Although the matter was on the agenda of the court for some time and several month ago the prosecutor of the Court had announced the completion of preliminary investigations and gathering of evidences for possible criminal prosecution of the “Darfur Case,” public announcement of the warrant of arrest against the Sudan president came as a shock to those who may be liable for similar deeds.

Indeed, such court order for the arrest of a sitting president is a formidable event and “will further erode that sense of impunity shared by dictators the world over” as one human right activist said. In the past several years we had similar proceedings against Slobodan Milosevic of Yugoslavia and Charles Taylor of Liberia by ad-hoc criminal courts. The news of the Sudanese president warrant sparked throughout the globe and alarmed authoritarian regimes that did not hesitate to condemn the matter as a political action and challenged the legality of the court order.

What is the legal foundation of the case? Who should be scared from this precedent and what are the ramifications of the case for repressive regimes? What are the prospects of bringing into justice heads of oppressive regimes in the future?

In July 2008, the prosecutor of the court (Luis Moreno-Ocampo) had charged Omar al Bashir with ten counts in total, including genocide, war crimes and crimes against humanity. After several months of deliberation and thorough examination of evidences provided to them by the prosecutor, the pretrial panel made up of three judges from Brazil, Ghana and Latvia finally decided to issue the warrant. They rejected charge of genocide against Mr. Bashir and only affirmed his “essential role” in the murder, rape, torture, pillage and displacement of large numbers of civilians in Darfur.

Although a number of states and organizations like China, the African Union and the Arab League had warned the warrant would be counter-productive and could destabilize the region; peace loving states and human rights activists welcomed the action as an historic victory for victims of repression, tyranny and subjugation. In issuing the order, the judges deliberately disregarded eventual political ramifications and social backlash that could aggravate the situation for innocent people in Darfur.

It is well to remember that about 2.5 million Darfur residents have been evicted from their homes and some 300,000 have died over the past five years in a ferocious conflict between non-Arab rebel groups and the Arab-dominated government and its allied militias. The court issued warrants for two other Sudanese citizens in 2007 — a government minister and a former militia leader — but neither has been arrested.

Iran along a number of Arab states have condemned the warrant of arrest against Sudanese president and Mr. Larijani, speaker of the parliament, paid a visit to Khartoum for expressing sympathy to Mr. Bashir. Iran accused the court to be under the influence of “Zionism and Imperialism;” whereas we know that neither the United States nor Israel is member of the International Criminal Court.

Article 63 of the Statute of Rome regarding the proceedings of the International Criminal Court, requires that the accused person be handed over to the court for trial. Yet there is no reason to believe that Sudanese ruler will voluntarily appear before the ICC or, for that matter, travel outside the Sudan and risk arrest. Accordingly, Bashir is likely to escape justice.

Sudan has always claimed that it has no effective control over feuding tribes; which is a self-indicting declaration of guilt. Since, it puts the raison-d’être of the government under serious doubt. The prosecutor believes that state support and coordination have been behind the outrages in Darfur.

The Sudanese government has repeatedly asserted that the human rights violations that have occurred were the work of independent forces, the so-called “janjaweed”” militia. It is true that these irregular units have committed many of the bloodshed, but the warrant application explains that they have done so “at the behest of the government.” While the warrant application acknowledges the right of a sovereign nation to respond to insurrection with armed force, but it also makes plain that Al Bashir has directed attacks specifically against civilians.

Sudan’s supporters, including the African Union and Arab League, have called for the UN Security Council to suspend any indictment. But France, Britain or the United States would probably use a veto to block such a move. The United Nations Security Council can postpone the prosecution against Mr. Bashir, but so far it has remained largely divided on the matter.

It is too early to conclude that the bold action of the International Criminal Court against the Sudanese president will create a deterring impact on the way of dictators and totalitarian rulers around the globe. Legal and criminal sanctions alone cannot bring justice, peace, democracy and human rights to a society. It may even worsen the situation for those under subjugation. Since, the international community still lacks an efficient police force to put into effect court orders. In rare occasions the United Nations Security Council may intervene under Chapter VII of the Charter (Article 42), but that also depends on a number of political factors which are not easily accessible.

Yet, as it is the first time that the tribunal in The Hague charges a sitting head of state with crimes against humanity, the case represents a major step by the court to implicate the highest level officials of a government for atrocities committed against innocent people. Certainly, it is hard to believe that the Sudan government would pay attention to the ICC warrant, but the case has a symbolic value and will create an important precedent in international humanitarian law. /

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Ali Asghar Kazemi is professor of Law and International Relations at IAU, Science and Research Center. Tehran, Iran

Strategic Games in the Middle East

Strategic Games in the Middle East

Ali Asghar Kazemi

March 5, 2009

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On March 4, 2009 the Islamic Republic of Iran hosted a two-day international conference on Gaza and Israeli breach of humanitarian law and war crimes against Palestinians during the recent armed conflict between the two hostile parties. The conference took place after a similar meeting in Egypt backed by the United States for the reconstruction of Gaza Strip that endured severe material and human losses during the 22-day conflict. While the two conferences had more or less similar themes, they followed diverse objectives. The Gaza conflict can be visualized as a set of strategic games in which actors involved pursued different aims in the Middle East political arena.

How various actors perceive the games they are playing in the Middle East? What are the objectives, gains and losses pursued by rival states? What are the plausible outcome and implications of the games?

The United States under Obama appears to continue the traditional American policy of previous administrations in the Middle East namely: the unequivocal support of Israel and the establishment of a comprehensive and durable peace which would promote the stability of the region and interests of moderate Arab states and Israel. This policy can be characterized as a non-zero-sum benefiting all parties directly involved in the game.

The United States however perceive some obstacles on the way of this policy emanating from the Islamic regime of Iran.

Not long ago, on February 12, 2009, US Director of National Intelligence, Admiral (Ret) Dennis C. Blair provided a wide ranging assessment of threats involving the American security before the US Senate Select Committee on Intelligence. Referring to Iran, Admiral Blair stated the following remarks:

· “Hezbollah is the largest recipient of Iranian financial aid, training, and weaponry, and Iran’s senior leadership has cited Hezbollah as a model for other militant groups. We assess Tehran has continued to provide Hezbollah with significant amounts of funding, training, and weapons since the 2006 conflict with Israel, increasing the group’s capabilities to pressure other Lebanese factions and to threaten Israel.”

· “Iran’s provision of training, weapons, and money to Hamas since the 2006 Palestinian elections has bolstered the group’s ability to strike Israel and oppose the Palestinian Authority.”

Tying together the Middle East peace process with Iran’s nuclear undertaking, Admiral Blair observed:

· “With Hamas in control of Gaza and Hezbollah growing stronger in Lebanon, progress on a Palestinian- Israeli accord is growing more difficult. With Iran developing a nuclear weapon capability and Israel determined not to allow it, there is potential for an Iran-Israeli confrontation or crisis on that issue as well.”

· “Moderate Arab states fear a nuclear-armed Iran, want progress on Palestinian settlement—the absence of which deprives US Arab allies of crucial political capital to defend strategic ties to the US and wish to sustain a moderate, state-centered politics for the region.”

The testimony further predicted that:

· “Progress on the Israeli-Palestinian peace track would increase opportunities for the US to broaden its engagement with Arab publics, including those aligning with the growing ideology of Islamic nationalism.”

· Israel and Iran are liable to enter into a confrontation or a crisis sometime this year (2009) “due to Tehran's progress in its nuclear weapons program and Jerusalem's determination to thwart it.”

This is to say that Israel fearing an Islamic regime with nuclear capability would not allow Iran to reach the point to threaten its survival and therefore there is potential for a clash between the two states. Israel has already shown its resolve in similar cases in Iraq and more recently in Syria.

With respect to varying intentions and perceptions behind rivalry in the Palestinian issue, they can be tentatively identified as follows:

Egypt, representing the pro-West moderate Arab states, tries to isolate Iran from the Middle Eastern issues related to Palestine and the peace process. Egypt seems to pursue a zero-sum-strategy which would exclude the Islamic regime from the game. To that end it intends to:

1. Strengthen Arab unity vis-à-vis Iran’s undesired interfering in the Palestinian problems;

2. Support the position of Mahmud Abbas as the legitimate Authority in all Palestinian territory including Gaza Strip;

3. Build a strong coalition of pro-West Arab states against the Islamic regime’s growing influence in the Middle East;

4. Take the initiative of the peace process by neutralizing all internal and external encumbering forces;

5. Ensure the continuity of incumbent moderate conservative regimes in the Middle East;

6. And finally, pave the way for a comprehensive peace settlement with Israel including all Arab states.

Iran also seems to be following a zero-sum strategy in a different direction with the intentions to:

1. Bring together all revolutionary movements in the region in a unified resistance front as leverage against the United States and its close ally Israel;

2. Demonstrate that it is the only true supporter and caring power for the Palestinian cause;

3. Show that no problem in the Middle East can be solved without its help;

4. Press on the Western powers that they should recognize Iran as an influential actor not only in the region but throughout the world;

5. Continue its nuclear undertaking without encumbrance from the 5+1 states, the Security Council or any other world bodies;

6. Consolidate and ensure its power grip in domestic affairs so that no opposition group could envisage challenging the regime.

Gaza crisis had already its impact over the elections in Israel and paved the way for the resurgence of the right wing to assume power. This means that reaching a just and equitable solution for the Palestine has become more difficult than ever. With respect to Iran’s nuclear venture, given President Obama’s reluctance to curb the presumed threat, Israel is susceptible to perceive still greater danger and may contemplate to engage in a real conflict with Iran.

With this somber and gloomy picture in the horizon of the Middle East political landscape, it does not seem that there would be a satisfactory outcome of the games in the foreseeable future, unless the parties involved change their rigid and uncompromising attitudes. In order to reach a mutually acceptable saddle point, actors are have to review their assessments and try to optimize their trade-offs in a non-zero-sum game with positive outcome which would benefit all parties concerned./

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Ali Asghar Kazemi is Professor of Law and International Relations at the IAU, Science and Research Center, Tehran- Iran. For detail see: www.aakazemi.blogspot.com