RIGHTSView, By EMMANUEL ONWUBIKO: ICC, Sudanese President and global jurisdiction

Posted by News Express | 16 September 2015 | 3,172 times

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According to recent media reports, Judges at the International Criminal Court (ICC), The Hague, have asked South African authorities to explain why they failed to arrest Sudanese President Omar al-Bashir in June when he attended an African Union conference.

Correspondingly, former Chadian dictator, Mr Hissene Habre, was reportedly carried into court and restrained by masked security guards on Monday, as charges were read out to his hearing at the recommencement of his prosecution over war crimes and crimes against humanity during his brutal regime: 1982-1999. According to recent reports monitored from Lagos, the suspected Chadian war criminal’s prosecution suffered an adjournment, after his lawyers in July failed to appear before the Special African Union-backed court. This case in issue would be a landmark one because it would be the first time a former head of state of a sovereign nation within the African continent would be subjected to the judicial process of another African nation: Ethiopia is the location of the African Union. Observers stated that should there be a successful prosecution that meets global best practices, that will be a watershed and further strengthens the position of African continental political body that political leaders who commit atrocities during their regimes can be made to face justice in Africa, without necessarily moving the accused to the ICC in The Hague, Netherlands, for prosecution over crimes against humanity. 

Habre is facing trial over charges of being responsible for the killings and cases of torture during his eight-year tyrannical regime.  He does not recognise the jurisdiction and legitimacy of this whole African trial. Habre is not alone. Erstwhile Ivorien leader, Mr Lawrent Gbagbo, is facing war crime charges before the ICC. The global court just rejected his application for bail on health ground.

In another related matter, the ICC asked South African authorities to submit by October 5, 

reasons for “their failure to arrest and surrender Omar al-Bashir.” The tribunal, according to foreign agency report, said the South African authority has to give full explanation on how al-Bashir was able to leave an AU Union summit in South Africa and flew home. ICC, as currently managed, is largely seen as lacking, with regards to the principle of sovereignty, when matters connected to serving African leaders are concerned. Questions have been asked why, for instance, the USA that has no regard for ICC is interested in campaigning that African dictators who have blood in their hands should appear before ICC, when the same United States can't surrender their top Generals accused of war crimes in some conflicts that the US has been involved of recent.

The Sudanese President had been accused of masterminding genocide in Darfur. Sudan isn't a signatory to the Rome Statute, but most African countries recognised the ICC, of which South Africa was among the first to sign on to the treaty. Nigeria is a party to the Rome statute. The United States of America does not recognise the ICC, but even if they do, their position alongside five other permanent Security Council members of the UN means that each of them can veto the decision of the ICC, should the tribunal seek to arrest any military Generals from these five nations irrespective of the gravity of the charges hanging on their necks. This lacuna has seriously posed credibility deficit for the ICC. Now, that has made most African nations to question the validity of the arrest warrants from this international forum.

The Sudanese president's flight back home was in defiance of a ruling by a South African court ordering his detention under a warrant from the International Criminal Court. But obviously, South Africa couldn't have surrendered the Sudanese leader since as a sovereign head of a member country of the African Union attending a summit of the body, he enjoys diplomatic cover, at least, within the venue of such a meeting. Besides, in Africa, it is immoral and a cultural crime to surrender your visitor to outside forces, because of the cultural value of hospitality. Nigeria violated that African cultural value during the regime of Olusegun Obasanjo, when it handed over ex-Liberian President Charles Taylor, who ran to Nigeria for refuge when his forces came under relentless attacks from rebels who battled to take over his dictatorship, which also came about through blood bath. Taylor has since been sentenced to 50 years in prison, to be spent in England, in a landmark verdict from The Hague, Netherland-based ICC, for using blood diamonds derived from Sierra Leone to fuel the killings in both his country and their next door neighbour, Sierra Leone.

South Africa, a member of the ICC, is obliged to enforce warrants from the Hague-based tribunal. But Nigeria violated similar warrant of arrest when this same Sudanese President attended an AU meeting in Abuja few months back. In Africa, Kenyan president, Mr Uhuru Kenyatta, gave up his immunity from prosecution as a sitting president to hand himself over together with his vice-president to the ICC, to face charges of war crime which happened during the post-election killings in that East African nation few years back.

The tribunal said in cases where a member of the ICC fails to cooperate, the tribunal may refer the matter to the Assembly of States Parties, the ICC’s governing body.

It can also take the matter up with the UN Security Council, which established the court and has the power to impose sanctions. African nations lack representation in the UN Security Council, thereby exposing African leaders indicted to forceful kidnapping or arrest by INTERPOL or bounty hunters commissioned by the ICC. But this system of operating ICC seems to be biased against Africa and less developed nations. It is the ICC that clearly demonstrates the proverb that all fingers are not equal.

President Jacob Zuma has defended the decision to let al-Bashir leave the country, saying as a leader, he has immunity as a guest of the African Union. This narrative is shared commonly in Africa. Most member nations of AU that recognise ICC are having fundamental rethink.

Meanwhile, Pretoria has said it would review its membership of the ICC and challenge a high court ruling that the state erred in letting al-Bashir leave. This brings us to the question of the validity and usefulness of the Rome Statute that brought ICC into being in the first place, since the foundation of this international judicial forum is facing serious credibility challenge.

What is Rome Statute? On July 17, 1998, a conference of 160 states established the first treaty-based permanent International Criminal Court.

According to information made available on the official website of ICC, the treaty adopted during that conference is known as the Rome Statute of the International Criminal Court.

Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for states to cooperate with the ICC. The countries which have accepted these rules are known as States Parties, and are represented in the Assembly of States Parties. The website states that the Assembly of States Parties, which meets at least once a year, sets the general policies for the administration of the Court and reviews its activities. During those meetings, the States Parties review the activities of the working groups established by the States and any other issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget.

What then are the issues around the jurisdictional questions around ICC? A Justice of Nigeria Supreme Court who rose to become Chief Justice of The Gambia, Emmanuel Ayoola, wrote in the book, Expanding the Frontiers of Justice: the Challenge of Global Justice, that there are still authoritative queries on the validity of the global jurisdiction of ICC.

In international law, we learnt: "Jurisdiction is the totality of the authority of the state, connoting the authority of the state to subject persons, property and events to its own rule and to enforce those rules. The aspect of jurisdiction, according to the jurist, that is relevant to this discourse is judicial jurisdiction, which connotes the exercise of the judicial power of the state by courts of law or other bodies invested with authority by the constitution to exercise such power."

In his considered opinion, Justice Ayoola submitted further: "International law recognises five bases of jurisdiction. If the frontiers of justice are to be expanded, weight must be given to one or two of these bases as being more essential to such expansion than the others. “

Those five bases in his opinion are: “First, the territorial principle by which jurisdiction is determined by reference to the place where the offence is committed which, extended, includes the place where it is completed. Second, the nationality principle, whereby jurisdiction is exercised by the state over its national, notwithstanding that the offence may have occurred in the territory of another state. Third, the protective principle by which jurisdiction is determined by reference to the national interest injured by the offence and by which a state may exercise jurisdiction over aliens who have committed an act abroad, which is deemed prejudicial to the security of the particular state concerned. Fourth, the universality principle by which each and every state has jurisdiction to try particular offences recognised by the community of nations as of universal concern. Fifth, the passive personal theory which authorises states to assert jurisdiction over offences committed against their citizens abroad.”

But it is practically impossible to so harmonise the global jurisdiction of such important global judicial fora, such as ICC, as long as there is institutional apartheid within the UN, whereby some five nations can individually veto any well-considered judgment that isn't favourable to their national pride and security.

You can’t have global justice, if all fingers, as they say pejoratively, continue not to be the same. The UN Security Council must be reformed for these goals to be achieved. The ball is in the court of World leaders to do the needful to achieve holistic jurisdictional reforms in the international justice mechanisms.

RIGHTSVIEW appears on Wednesdays, in addition to special appearances. The Columnist, popular activist Emmanuel Onwubiko, is a former Federal Commissioner of Nigeria’s National Human Rights Commission and presently National Coordinator of Human Rights Writers’ Association of Nigeria (HURIWA).

Source: News Express

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