Al Bashir and the International Criminal Court: Skillfulness or Ineptness?
By Kamal Al-Gazooly
Translated from Arabic by Center for Arab Progress
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Colonial General Zein Al-Abideen, the former president of the Political Committee for Transitional Military Council of Sudan, did not succeed before his dismissal at his own press conference on Friday afternoon, April 12 2019. He presented a number of issues in manner that created confusion, for example when asked about the possibility of submitting the ousted Sudanese President Omar Al Bashir to the International Criminal Court, who have been requesting his surrender for the past decade, Colonial General Omar regurgitated in a tone akin to that of the previous twiddled regime;
We are in a time where we will not hand him over. These are our values as military. We will trial him. Yet, to hand him over, we will not do. We are the military and the children of this land, we will judge on this land. No one should tell us to submit a Sudanese outside of the country whilst we could conduct a trial ourselves, for what are we lacking?! The judiciary is present, and the laws are present. For let us judge him ourselves instead of doing something ugly in our Sudanese history. Even the rebel we will not hand him over to prove to you that we are not biased to the president, yet biased to Sudan. The laws exist, and everything exists. Let us hold him accountable yet we will not submit! (Sudanese TV Channel through Al-Hadath Channel, on April 12th 2019).
Hence, away from the determinants of Sudanese nationalism in contemporary international relations map, or the superiority of the nationalism of the “Military” over the “Civilians, or whether there was a report regarding submitting the “President” as part of the powers of the transitional military council or the transitional council of ministers. Or else, whether the council will trial the civilians since the “laws are valid” and this is according to the Colonial General Zein Al-Abideen. Perhaps no one will trial the ousted president, according to Jalal al-Deen al-Sheikh, who is a former deputy director of security, and a colleague of Zein Al-Abideen in the council and the Islamic movement. Jalal Al Deen announced on television that the elected government will decide on the trial, not the council.
“I state apart from this and that, the matter is crucial here and is summarized as whether it is correct to state, as what Zein Al-Abideen did, we do have “laws” that are sufficient for the request of trial of the ousted president inside our country. For there is no justification whatsoever in accepting the jurisdiction of the International Criminal Court.
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To accurately answer all these question, one has to take the following into consideration:
A. The International Criminal Court is not a superior instrument used by the international community, as many of the facets falsely claim. Instead it is a permanent body of justice that resulted from a dauntless struggle waged by various nations to put an end to “crimes against humanity”, “war crimes”, and “genocide”. These crimes were continuously witnessed during armed struggles locally and internationally. This has occurred in the line of continuous and interrelated development of international human rights law, international humanitarian law and international criminal law, creating the need for an international criminal court to enforce such laws.
B. This journey went through various historical events in the course of the controversies of laws and politics. In a sense it developed an international law platform from the mere limitations of the rights of the “nation state”. It was set up in the framework of the Westphalia Convention of 1648, to safeguard the rights of individuals and nations. This is a feature of contemporary international law with its various divisions especially in terms of international criminal law.
C. One of the most important attempts that happened under the pressure of the people was in the aftermath of WWI (1914-1918). It was when they trialed the Russian Czar for his responsibility of war crimes against the German military during the war. At the time it didn’t go through given the opposition of the United States and the Czar himself escaping to Holland.
D. Afterwards came the Second World War (1939-1945) with the horrors of its crimes which shook humanity. This led to a higher calling for applying the rules of the international Criminal Courts on the perpetrators such as top accomplices of Hitler and Mussolini. At the time, there was a sense of failure in applying the laws or in the applicability of the provisions of the international criminal laws, especially in the aftermath of the First World War.
E. Consequently, even after the end of the war, the conference for the governments of those countries that had been occupied by Germany was held in London in 1942. They published a declaration for persecuting those who ordered the crimes, committed them, carried them out, or those who participated in them, in front of an international criminal justice court. It was then that there was the first international decree on “crimes against humanity against civilians” and it adopted international criminal responsibility laws for natural persons. It also created a distinction between those who participated, versus those who ordered, or those who executed.
F. In 1943, the allies issued the “Moscow Declaration” which defined the scope of the “Criminal Responsibility” for the German officers and members of the Nazi Party for their war crimes. They then decided to send them to the countries where they committed such crimes so as to be persecuted under their own national laws. Those who were classified as “war criminals” with an undefinable geographic location where left to be persecuted through a collective decision by the allies- from the “Trials of War, 1951”.
G. In Potsdam in 1945, the Allies including France decided to persecute the “war criminals”. A few days later, the same decision came at the London Conference, with the participation of the United States, the Soviet Union, the United Kingdom, Northern Ireland and the French Interim Government. For the first time, they adopted an agreement to establish a supreme international military tribunal to persecute presidents, leaders and senior officials of the Axis countries of Europe.
H. Based on that, the Nuremberg Trial was the first international criminal court in history for persecuting the war criminals in Europe. One of the strongest justifications for establishing it was that those accused were “not specified for in the national laws of the allies” as needed according to the rules of internal criminal laws. Therefore, it was impossible to assess the accomplice’s’ liability according to international criminal laws. Nevertheless, according to international law expert Sherif Bassiouni; humanity was ready for a new international criminal law system. Further, one of the most important provisions for establishing the court was “documenting crimes against peace, against humanity, or criminal wars”, as well as “criminal courts taking full responsibility for the criminal heads of states and their military commanders”. Furthermore, the goals is to “not regard those in high power position such as heads of states or any senior officials as exempt from punishment or having the options of receiving reduced sentences”.
I. On the other hand, the “Tokyo Court” established another system for persecuting “war criminals in the Far East”. However, for the most part is did not differ substantially from the Nuremberg Trials, neither in terms of charges, procedures, or personal international criminal court responsibility, nor in providing exceptions for presidents or leaders, or in refusing the excuses of those exempted. The difference between the two courts was in terms of how they were established. Where the Nuremberg Court was founded under the London Agreements of 1045, while the Tokyo Court was based on a special command from General Douglas Mcarthur, who was the commander in chief for the allies, in June 19, 1946. As such, Tokyo has led to charges and crimes not discussed at Nuremberg, such as “start of unlawful hostility” and “attacking countries without warning or declaration of war”.
J. The United Nations General Assembly in its first session in November 1946, adopted a resolution on the basis of a US proposal to codify the principles of the Nuremberg Trials into the principles of international criminal law. Some of which include that the international criminal court responsibility is personal, that the immunity of the head of state or members of his government are negligible, and that payments may not be ordered by the president or the leader to waive their liability or responsibility. Moreover, the laws of the international criminal court are above domestic criminal laws, international crimes must be specified and participation in international crimes will be accounted for, and that the principle of fair trials must be respected.
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In theory, both courts constituted a historical turning point for international criminal court law, leading many to believe that this will not happen again. According to Kofi Annan, the former Secretary General of the United Nations, even though the international community has vouched never again to be involved in this many conflicts, simultaneously, the world is now involved in more than 250 armed struggles on the local, regional, and international levels. As a result of that, as well as human right violations perpetrated by repressive regimes, the murdered victims of these conflicts are estimated at anywhere between 70 to 170 million civilians. This is primarily due to the international community witnessing a tragic reaction to the efforts that culminated at the Nuremberg and Tokyo trials. It is where the regimes have often applied a realistic policy (analyzed as opportunistic), where they compromise their criminal liability for the lives of the victims and their sufferings, and the principles of justice International Criminal Court, in exchange for mutual political favors!
As a result, international crimes such as murder, torture, rape, displacement and disappearances, coercion, genocide, various war crimes and crimes against humanity during armed conflicts, internal and civil, have been increasing throughout the world, given that there are chances of escaping punishment and growing impunity.
There is no doubt that the best environment exists when the state is either “unwilling” or “unable” to track, prosecute and punish the perpetrators de facto or de jure. The genocide in Rwanda, for example, which has been under the eyes of the world for a whole year, has provided the most compelling evidence not only of this internal situation, but also of negativity and the complicity of states!
Therefore, the international civil community protests have not ceased, and many of the democratic governments were under the pressure of the people who did not halt over expressing their extreme opposition towards these violations. Moreover, these forces did not stop asking for tracking of the perpetrators and persecuting them internationally. After a decade of adjourning of Nuremberg and Tokyo, the international consciousness was shaken again in the wake of the terrible tragedies in the regions of Bosnia and Rwanda during the first half of the 1990s. At this time again, the two ad hoc tribunals were established. The first was the former Yugoslavia Tribunal in The Hague, under Security Council resolution 827 (1993), to prosecute those responsible for the violations of Bosnia in January 1991. The second was the Arusha Tribunal in Tanzania in accordance with the Council Resolution 995 for year 1995 to persecute those responsible for the violations in Rwanda during the period of January 1 until the end of December 1994.
On the other hand, given that these applications were temporary, they have been proven to be ineffective. Therefore, the international voices were raised for creating a permanent international tribunal. At the Italian capital, a United National Diplomatic Conference was established from July 15-17 in 1998, which adopted the Rome Statue for the establishment of the International Criminal Court (ICC). Then it entered into full force on July 1, 2002 as a full court specialized in the most dangerous crimes of international concern, particularly genocide, war crimes, and crimes against humanity. Additionally, the definition of crimes of aggression were deferred to 2011, yet were not identified until today.
Taking a quick glimpse at the Roman Statute reveals that it contains similar principles to the Nuremberg court, especially in terms of rules of procedures, rules of evidence, as well as the rules of the non-falling of crimes within the jurisdiction of the court. Furthermore, Sudan has participated at the Rome Statue with one of the largest and most active delegations. On September 8, 2000, their distinguished participation was crowned by signing the Rome Statute during the United Nations’ Third Millennium Conference (see list of signatories under Mahmoud Sherif Bassiouni, Court, I, Dar El Shorouq, Cairo 2004). On the other hand their signature was not ratified, and was withdrawn years later.
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As the Darfur issue was worsening to a degree of alarming the entire world, at the request of the Security Council Kofi Anan, established an international commission headed by the Italian Judge Antonio Cassese on the first of October in 2004. This was done to investigate the events of the territory during the first period of July 2002. Then in January 2005, the committee completed its work and submitted a report to the Secretary General, which concluded that there was no reason to believe that there were “crimes against humanity” or “war crimes” committed by the government forces or by its supporting Janjaweed Militias and factions of the Liberation Movement. The report also included a confidential listing of 51 persons accused of the crimes, and it recommended their referral from the Security Council to the International Criminal Court based in The Hague. Nevertheless, the commission ruled out the crimes of genocide, but conversely, it did not rule out “acts of genocide” by some government officials, which created a material element of this crimes. However it also questioned the existence of the element of “mens rea” which formed a criminal intent, and this was left for the court to decide on its own accord.
Based on these recommendations, the Security Council passed a resolution 1593 on March 31 2005, using its powers under article 13/B from the Roma Statute in light of Chapter VII of the Charter of the United Nations. It concluded that the regional situation is posing a threat to international peace and security, and then it requested from the Sudanese government along with the State members of the international organization to cooperate with the Court. Regarding the “genocide” aspect, the Security Council decided to leave the matter to the court itself. This was in accordance with the committee recommendations during the visit of Juan Mandez to Khartoum in late September 2005, who was the special advisor to the Secretary General of the United Nations on the Prevention of Genocide (Al-Ayyam, 27 September 2005).
Afterwards, Luis Moreno-Ocampo, the Prosecutor of the Court, at the time, declared that all the initial legal requirements have been met, and he took his decision, on 6 June 2005, to open the case, calling on the Sudan and all parties concerned to cooperate with him. This was done after he received and studied the file containing the archives and documents of the Commission, without being restricted by the list of the 15 accused. Ocampo made his recommendation after an independent investigation, and in addition to receiving information from thousands of documents from other sources, and questioning more than 50 independent experts.
Moreover, the independent investigations conducted by the International Prosecution resulted in the indictment of a number of officials. The investigation included 17 countries, along with more than 100 testimonies, as well as the report of the National Commission of Inquiry that the Government of the Sudan had previously established, headed by Dafallah Al-Haj Yousif, a former Chief Justice. This included the prosecution of Ahmed Harun, who was the Minister of State in the Ministry of the Interior, Ali Kushayb, who was leading the notorious Janjaweed militia in relation to the crimes of the region, and it also included Omar al-Bashir, the President of the Republic and the Supreme Commander of the Armed Forces and National Congress Party. Furthermore, the two charges against Harun and Kushayb involved “war crimes” and “crimes against humanity”. On the other hand, the charges against Bashir, involved also the two charges plus “genocide” against ethnic groups such as Fur, Masalit, and Zaghawa.
Despite the cooperation initially shown by the Sudanese government with the investigations team from the office of the International Prosecutor, it did not continue. In the beginning their cooperation subjected investigating the Minister of Defense himself, and allowing the international team to conduct inquiries not only in Khartoum but also in Darfur, and in the refugee camps in eastern Chad. However, the moment the indictment reached the president of the republic and later to Harun and Kushayb, was the time when the government started to renounce its cooperation. It started to exhibit a hostile attitude towards the court, to the extent of making claims that it was merely a tool in the hands of an international arrogant community, even though the evidence shows otherwise, especially in providing the details and facts above. This hostility reached the point of retreat and withdrawal of the signature on the “Rome Statute” rather than ratifying it.
This was followed by extremely confused government statements, at times, it stated that Sudanese legal entities were willing and able to track down the perpetrators to bring them to national justice. However, at the same time they were taking no action. In other instances, they made claims that they were unable to catch the perpetrators for trial because they were escaping to environments where it is difficult to catch them. Furthermore, their other claim was that court houses in Darfur were for ordinary criminal cases and not international crimes.
In addition to these flimsy arguments, the government also engaged in some sort of exposed bargains with some international forces and institutions. This was in order to free its accused from the pursuit of the international criminal court, on the top of them was Bashir. They were under the illusion that they have the ability to withdraw this case from the court in exchange for political deals from under the table! Perhaps this is why the international human rights expert at Human Rights Watch, Richard Dicker, ironically denounced the idea of allowing Bashir to negotiate was for finding a political outlet from accusing him of crimes in Darfur. According to him, this was not an auction at Ebay trading!
Furthermore, the government also attempted to entice many of the regional leaders at their regional conferences, especially the African ones, which proved ineffective. On the other hand, if only the government has considered the advice from William Ruto, the vice president of Kenya, during his visit to the country on April 9-11 on 2018. He emphasized the experience of the Kenyan presidency in dealing with the International Criminal Court, where both himself and President Ohoro Kenyatta were accused. They both chose to present themselves in front of the court in order to be proven innocent.
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The opponents to the government continued to protest and highlight the real reason why the law enforcement agencies were not able to persecute the accused. In the forefront, throughout history the Sudanese criminal laws are not familiar with elements of international criminal law, except for the amendments done in 2010 (Sudan Laws, vol. 13, ed. 8, sect. 18). While international crimes are subject to charges against criminals were recognized in the years 2003-2004, and it is known with no doubt that law are not applied retroactively. Moreover, according to the Rome Statute, which is the foundation of the International Criminal Court, international crimes were promulgated in 1998 and entered into force in 2002. This matter limits the jurisdiction over the Sudanese courts, complicates international criminal laws and makes its mandate imperative.
Based on these facts, it is important for the Sudanese regime to choose between these two routes:
A. Either they will bypass the court, backed up by the council, in an unfavorable regional and national outcome, which is likely to disintegrate its political and military front. The Sudanese regime will put itself and the whole country in an untactful confrontation. Even to the meager balances that the regime has been counting on in its foreign relations, they could lose the support of China and Russia, who represent “cruelty” in the international community. Yet concurrently, they are bound by charters and agreements which are part of the foundation of international legitimacy.
B. Or they will need to maintain their position within the international community, and master dealing with the decisions of the Council and the Court. By taking into consideration that it stands amidst currents of intractable international strategies, which are in accordance with the logic of international relations and laws.
Unfortunately, the Sudanese government chose to take the first route, with a vague approach in which its legal and political discourse intersect and sometimes coincide with each other. At the same time, they have not succeeded once in establishing any pretext or focus, as required by article 1 of the Rome Statute. Namely, its claim that its elements of desire and ability are available to track and prosecute the perpetrators so as to prevent impunity. Furthermore, it can make a decision from the pre-trial court about the inadmissibility of the case, under the article 17A. Or it can persuade the Security Council to ask the court not to proceed with the investigation or prosecution deferral for a period of 12 months, according to article 16. Needless to say, the only way that would have been able to provoke such legal pilgrims was to set the legal procedures for opening, prosecuting, arresting and prosecuting offenders in order to bring them to fair trials before an independent judiciary. In this sense, they themselves are part of the solution and not part of the problem!
Thus, the government adopted the wrong method of confrontation with the International Criminal Court, in the following ways:
A. In the beginning, it denied any obligation towards the Court, based on the fallacy that signing Rome Statute was not binding. As reported by the Attorney General at the time, Sima Samar, in mid-October 2005; “Sudan is not obligated and is not subject to the laws of the International Criminal Court because it did not sign the Rome Statute” (Public Opinion, October 18, 2005). This is a clear misconception, since Sudan has already signed on September 8, 2000. As well as, it has already contributed actively to the “Rome Diplomatic Conference” held in the Italian capital, in the summer of 1998. Thus, it resulted in the Rome Statute which then established the International Criminal Court.
B. As soon as the government realized that it was difficult to continue this fallacy, they later amended it, to which Sudan signed, but did not ratify. This is an entirely futile argument, given that article 19 of the Vienna Convention on International Conventions of 1969 prohibits the signatory State from exercising any action that would impede the enforcement of its signature. The claim is that the referral of the Darfur file by the Security Council to the Court was made under Article / 13 / b of the “Rome Statute”, which is in light of Chapter VII of the charter. This is a matter that does not require ratification or even a signature.
C. Once again, when the government recognized the weakness of its arguments, their speech again became irrational. It did not protest legally, as it did in the beginning, to merely defer the case to the Court. Yet, it relentlessly claimed on every occasion, every platform, using government officials, all its journalists and media, that the court is purely the result of “international arrogance and superiority”. Furthermore, that it is a tool of domination and base on the outdated sovereignty from the Westphalia era. Moreover, above all the government then declares its unwillingness to cooperate with them, and condemns all those who do not agree as great traitors. In return, this raises two very important observations:
Observation 1: given this discourse, the government has positioned itself in an unsustainable case; either when they signed the Rome Statute they did not know the ascetic nature of international hegemony, or they understood this when they signed and did so out of a sense of defeat.
Observation 2: the government confrontation with the international community has taken a less cautious step on the official and civilian level. In a sense that the international criminal court was not established at the turn of the millennium as a mere act of interstate relations, but also, as a culmination of a supernatural civil effort and a fierce global campaign involving millions of people from different countries over the decades. Moreover, the criminal court establishment also involved political parties and organizations, voluntary and humanitarian organizations, academic and research centers, scientific, cultural and social associations, independent press and media institutions, prominent figures, various schools and intellectual trends of democracy.
At present, the campaign is still being coordinated by the International Coalition for the International Criminal Court (CICC) to push for more adherence to the Rome Statute. It is done by both signing and ratifying, or by completing ratification procedures, as was the situation before Sudan withdrew its signature. More importantly, the attention and awareness of the need for this international criminal justice institution and its “complementary” relevance to peoples, especially millions of ordinary civilians, victims of violations of an essentially international criminal character, whenever national laws cannot be applied for any reason. That is the basic truth that should always be kept in mind, and should not be forgotten for a moment, in any talk about this court, as a universal democratic demand, not merely an international “arrogance” conspiracy!
Therefore, saying that it is a “foreign” institution not permissible for the “patriots” to bow to it, and the claim that we do not need it because we have “laws” to ensure that any accused of an international crime is prosecuted, is merely a joke! Furthermore, it is unacceptable for the Transitional Military Council and its representatives to be a part this joke!
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