sudan
Senior Member
- Oct 17, 2012
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Are African Leaders Being Unfairly Targeted by the ICC?
The Sudanese ambassador, the High Commissioner of Rwanda, a Human Rights Watch Representative and several students took part in a major debate, organized by the Law Society at the London Compass of Coventry University.
Sudan Vision publishes below the full text of Ambassador Mohammed Abdalla El-Tom's contribution to the debate:
Are African Leaders Being Unfairly Targeted by the International Criminal Court?"
I am sure that there is no one in this room who would not agree that the pursuit of justice in the face of wrongdoing is at the heart of human values. Many African actively participated in the negotiations leading to the establishment of the International Criminal Court hoping it was a court that would dispense justice without fear or favour.
Africa and the rest of the world were wrong. The ICC has proved to be deeply flawed institution, racist and deliberately choosing to focus exclusively on Africa. The very institution that African voluntarily and actively contributed to create, and joined en masse, has let them down immensely.
From over 9,000 complaints the court has received about alleged crimes in over 139 countries on several continents, the ICC's indictments to-date are all, exclusively, in Africa: 36 African indicted within eight African countries.
A court is only as credible as its independence. Far from being an independent and impartial court, the ICC's own statute grants special "prosecutorial" rights or referral and deferral to the Security Council. Political interference in the legal process was thus made part of the Court's founding terms of reference. The fact that the ICC has exclusively focused on Africa reflects the power relations inside the SC where the permanent five do shield the nations they favour from any prosecution. In the few cases were the prosecutor was forced to open investigations in countries outside Africa, (Afghanistan and Colombia are just few examples), he did not issue any charges even though the investigations have been going on for (6 years). Even when an African member state refers a case to the ICC involving a non-African state, no action is taken. The court received a State referral from the Government of Comoros for the Israeli attack on the flotilla that was sailing to Gaza to break the unlawful blockade in order to deliver humanitarian aid, but the prosecutor refused even to open an investigation into this situation.
The case of Sudan exposes some of the serious flaws of the court. Some are related to the structure and others to the operation of the court, in particular the misconduct of the former chief prosecutor, whose main concern was, apparently, to secure as many arrest warrants as possible against Africans, committing, in the process, serious violations of international law.
I will go briefly below over these flaws as far as Sudan's case is concerned:
First: The referral by the Security Council
1. The ICC's intervention into the Sudan situation by way of referral in Security Council resolution 1593 is unlawful. The ICC is a treaty-based court, reliant on the consent of the nations which agree to be subjected to the Court's jurisdiction. The Security Council, (whose three of its five permanent members are not parties to Rome Statute and do not recognize the court), is not legally empowered to subject non-State parties of that Statute to the jurisdiction of the Court.
2. The ability of the Security Council to refer and defer prosecutions to the ICC highlights the politics that are central to the court. Sudan's case presents a situation whereby non-member states of the ICC are able to refer another non-member state, the Sudan, to a court they have neither joined nor recognized. The iniquity of this situation is clear for all to see. It is also a situation which goes against international law. A country cannot be held to account to a treaty, in this case the Rome Statute, it has not signed. The ICC has no jurisdiction over Sudan. This quite simply means that the Security Council referral is illegal, and therefore everything following on from it is null and void.
3. There are also procedural shortcomings in the Security Council's Sudan referral. The Council failed to give Sudan, neighbouring States, and regional organizations the chance to submit observations and evidence – and to challenge the evidence and views submitted by others – before the Security Council made its determination. The State to be affected by the Security Council's decision – Sudan – should have3 been given a chance to respond to the potential Security Council action as the Council must make its determination based on all relevant facts, Further, the Security Council has taken no steps to re-evaluate the situation or the evidence, on which it initiated the referral.
Second: The prosecutorial misconduct, and lack of evidence:
1. The ICC prosecutor is not accountable to any separate authority. The way the former prosecutor handled the cases proved to be very unprofessional and incompetent, to say at least.
There has been substantial criticism of the Prosecutor's competence and conduct, in addition to his lack of evidence to support the charges in Sudan's case. He did not bother to visit the scene of the crime to investigate such seriously alleged charges! He has never set a foot in Darfur. He admitted that he had to investigate the situation in Darfur without going to the region for security reasons! This meant that he gathered all his information, for the case, from second-hand sources!
Western NGOs arranged for him to see some alleged witnesses – including elements from the rebel groups – outside the country, on whose stories he built his case! In particular, the Prosecutor's decision to pursue charges of genocide has been seriously questioned as the UN itself had dismissed it way before the flawed referral to the ICC. Even some of the die-hard supporters of the ICC, such as Kenneth Roth, executive director of the HRW, were so critical of his conduct. "The chief prosecutor, for the ICC's first nine years, Luis More3no Ocampo of Argentina, seemed more interested in issuing arrest warrants than undertaking the tough, less glamorous work of conducting rigorous criminal investigations".
2. The prosecutor was actually acting like an activist. He had acted unprofessionally in assuming the guilt of the President without respecting the rights to the presumption of innocence.
3. Many prominent lawyers and experts questioned the timing of the charges of the President of Sudan. There were reports about serious personal matters he was facing then within the organization Joshua Rozenberg, a leading UK legal correspondent, highlighted this matter and other in observing the political posturing and "grandstanding" of the prosecutor for targeting the President, and calling on the Prosecutor to resign. Alex De Waal of Harvard University (Dept. of Government) and Social Science research Council, commented, on the Guardian, following the Prosecutor's press conference on the application for an arrest warrant against President Al Bashir
"I came out of the press conference in a state of shock .. He pointed a picture no scholar would recognize. He was basically calling for regime change, making a political statement, which is surprising coming from the chief prosecutor of the ICC."
4. The prosecutor breached the international law by ignoring the immunity of President Al Bashir. Under international law, this immunity is the right of the head of State's State. Given than Sudan has not ratified the ICC Statute, there can be no question that the immunity is preserved in respect of any ICC action.
5. Ironically, article 98 of the Rome Statute itself recognizes that without the consent of Sudan (non-state member), other States cannot seek to arrest Sudanese officials on the request of the ICC. Article 98 reads as follows:
"(1) The court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity."
6. This position has been augmented by the AU General Assembly which has decided that Head of State immunity applied in respect of President Al Bashir, holding that: "The AU member States shall not cooperate, pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omer Al Bashir of The Sudan."
7. This is worth mentioning that in other cases, like Thomas Labanga of the DRC, the prosecutor tried to hide hundreds of items of exculpatory evidence from both the defence and the bench. In others, the ICC had witnesses recanting their testimony when in the witness but, admitting that they were coached by non-governmental organizations as to what false statements to make.
Generally speaking, the intervention of the ICC in the Sudan had a devastating impact on the peace efforts in the country. The flawed referral of Sudan to the ICC coincided with one of the mostly significant developments in the modern history of the country, the signing of the CPA which was expected to bring peace to all the country, Darfur included. The ICC intervention derailed the peace process and sent the wrong message to the rebels in Darfur, contributing, therefore, in prolonging the war and adding to the misery of the Sudanese people, especially with the prosecutor acting like an activist, selling to the rebels an unrealistic dream of regime change which they have been waiting for so long!
And so to conclude, it is unfair for anyone to be subjected to the legally flawed and procedurally corrupt demands of such a so-called court. It is manifestly unfair on so many levels to subject Africa to any aspect of the ICC, not least of which because it is a so-called court to which the Europeans and North Americans so clearly will not subject themselves.
The Sudanese ambassador, the High Commissioner of Rwanda, a Human Rights Watch Representative and several students took part in a major debate, organized by the Law Society at the London Compass of Coventry University.
Sudan Vision publishes below the full text of Ambassador Mohammed Abdalla El-Tom's contribution to the debate:
Are African Leaders Being Unfairly Targeted by the International Criminal Court?"
I am sure that there is no one in this room who would not agree that the pursuit of justice in the face of wrongdoing is at the heart of human values. Many African actively participated in the negotiations leading to the establishment of the International Criminal Court hoping it was a court that would dispense justice without fear or favour.
Africa and the rest of the world were wrong. The ICC has proved to be deeply flawed institution, racist and deliberately choosing to focus exclusively on Africa. The very institution that African voluntarily and actively contributed to create, and joined en masse, has let them down immensely.
From over 9,000 complaints the court has received about alleged crimes in over 139 countries on several continents, the ICC's indictments to-date are all, exclusively, in Africa: 36 African indicted within eight African countries.
A court is only as credible as its independence. Far from being an independent and impartial court, the ICC's own statute grants special "prosecutorial" rights or referral and deferral to the Security Council. Political interference in the legal process was thus made part of the Court's founding terms of reference. The fact that the ICC has exclusively focused on Africa reflects the power relations inside the SC where the permanent five do shield the nations they favour from any prosecution. In the few cases were the prosecutor was forced to open investigations in countries outside Africa, (Afghanistan and Colombia are just few examples), he did not issue any charges even though the investigations have been going on for (6 years). Even when an African member state refers a case to the ICC involving a non-African state, no action is taken. The court received a State referral from the Government of Comoros for the Israeli attack on the flotilla that was sailing to Gaza to break the unlawful blockade in order to deliver humanitarian aid, but the prosecutor refused even to open an investigation into this situation.
The case of Sudan exposes some of the serious flaws of the court. Some are related to the structure and others to the operation of the court, in particular the misconduct of the former chief prosecutor, whose main concern was, apparently, to secure as many arrest warrants as possible against Africans, committing, in the process, serious violations of international law.
I will go briefly below over these flaws as far as Sudan's case is concerned:
First: The referral by the Security Council
1. The ICC's intervention into the Sudan situation by way of referral in Security Council resolution 1593 is unlawful. The ICC is a treaty-based court, reliant on the consent of the nations which agree to be subjected to the Court's jurisdiction. The Security Council, (whose three of its five permanent members are not parties to Rome Statute and do not recognize the court), is not legally empowered to subject non-State parties of that Statute to the jurisdiction of the Court.
2. The ability of the Security Council to refer and defer prosecutions to the ICC highlights the politics that are central to the court. Sudan's case presents a situation whereby non-member states of the ICC are able to refer another non-member state, the Sudan, to a court they have neither joined nor recognized. The iniquity of this situation is clear for all to see. It is also a situation which goes against international law. A country cannot be held to account to a treaty, in this case the Rome Statute, it has not signed. The ICC has no jurisdiction over Sudan. This quite simply means that the Security Council referral is illegal, and therefore everything following on from it is null and void.
3. There are also procedural shortcomings in the Security Council's Sudan referral. The Council failed to give Sudan, neighbouring States, and regional organizations the chance to submit observations and evidence – and to challenge the evidence and views submitted by others – before the Security Council made its determination. The State to be affected by the Security Council's decision – Sudan – should have3 been given a chance to respond to the potential Security Council action as the Council must make its determination based on all relevant facts, Further, the Security Council has taken no steps to re-evaluate the situation or the evidence, on which it initiated the referral.
Second: The prosecutorial misconduct, and lack of evidence:
1. The ICC prosecutor is not accountable to any separate authority. The way the former prosecutor handled the cases proved to be very unprofessional and incompetent, to say at least.
There has been substantial criticism of the Prosecutor's competence and conduct, in addition to his lack of evidence to support the charges in Sudan's case. He did not bother to visit the scene of the crime to investigate such seriously alleged charges! He has never set a foot in Darfur. He admitted that he had to investigate the situation in Darfur without going to the region for security reasons! This meant that he gathered all his information, for the case, from second-hand sources!
Western NGOs arranged for him to see some alleged witnesses – including elements from the rebel groups – outside the country, on whose stories he built his case! In particular, the Prosecutor's decision to pursue charges of genocide has been seriously questioned as the UN itself had dismissed it way before the flawed referral to the ICC. Even some of the die-hard supporters of the ICC, such as Kenneth Roth, executive director of the HRW, were so critical of his conduct. "The chief prosecutor, for the ICC's first nine years, Luis More3no Ocampo of Argentina, seemed more interested in issuing arrest warrants than undertaking the tough, less glamorous work of conducting rigorous criminal investigations".
2. The prosecutor was actually acting like an activist. He had acted unprofessionally in assuming the guilt of the President without respecting the rights to the presumption of innocence.
3. Many prominent lawyers and experts questioned the timing of the charges of the President of Sudan. There were reports about serious personal matters he was facing then within the organization Joshua Rozenberg, a leading UK legal correspondent, highlighted this matter and other in observing the political posturing and "grandstanding" of the prosecutor for targeting the President, and calling on the Prosecutor to resign. Alex De Waal of Harvard University (Dept. of Government) and Social Science research Council, commented, on the Guardian, following the Prosecutor's press conference on the application for an arrest warrant against President Al Bashir
"I came out of the press conference in a state of shock .. He pointed a picture no scholar would recognize. He was basically calling for regime change, making a political statement, which is surprising coming from the chief prosecutor of the ICC."
4. The prosecutor breached the international law by ignoring the immunity of President Al Bashir. Under international law, this immunity is the right of the head of State's State. Given than Sudan has not ratified the ICC Statute, there can be no question that the immunity is preserved in respect of any ICC action.
5. Ironically, article 98 of the Rome Statute itself recognizes that without the consent of Sudan (non-state member), other States cannot seek to arrest Sudanese officials on the request of the ICC. Article 98 reads as follows:
"(1) The court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity."
6. This position has been augmented by the AU General Assembly which has decided that Head of State immunity applied in respect of President Al Bashir, holding that: "The AU member States shall not cooperate, pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omer Al Bashir of The Sudan."
7. This is worth mentioning that in other cases, like Thomas Labanga of the DRC, the prosecutor tried to hide hundreds of items of exculpatory evidence from both the defence and the bench. In others, the ICC had witnesses recanting their testimony when in the witness but, admitting that they were coached by non-governmental organizations as to what false statements to make.
Generally speaking, the intervention of the ICC in the Sudan had a devastating impact on the peace efforts in the country. The flawed referral of Sudan to the ICC coincided with one of the mostly significant developments in the modern history of the country, the signing of the CPA which was expected to bring peace to all the country, Darfur included. The ICC intervention derailed the peace process and sent the wrong message to the rebels in Darfur, contributing, therefore, in prolonging the war and adding to the misery of the Sudanese people, especially with the prosecutor acting like an activist, selling to the rebels an unrealistic dream of regime change which they have been waiting for so long!
And so to conclude, it is unfair for anyone to be subjected to the legally flawed and procedurally corrupt demands of such a so-called court. It is manifestly unfair on so many levels to subject Africa to any aspect of the ICC, not least of which because it is a so-called court to which the Europeans and North Americans so clearly will not subject themselves.
