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ICC, Sudanese President and Global Jurisdiction

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Sudanese President Omar al-BashirJudges, according to information in the media 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 [pictured above] in June when he attended a conference. 

Correspondingly,  the 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 from 1982-1999. According to reports monitored today 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 strengthened 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 recognize the jurisdiction and legitimacy of this whole African trial. Habre is not alone. Erstwhile Ivorian Mr Laurent 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 Oct. 5 the reasons for “their failure to arrest and surrender Omar al-Bashir”.

The tribunal according to foreign agency reports 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 regards to the principle of Sovereignty when matters connected to even 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 even when the US 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 recognize the ICC but even if they do their position alongside five other permanent security Council members of the UN means that each one 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 and has made most African nations to now 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 (ICC). 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 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 Netherlands based ICC for using blood diamonds derived from Sierra Leone to fuel the killings in both his country and their next door neighbor-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 the 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 U.N. 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 African 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 recognize ICC are having fundamental rethinks. 

Meanwhile, Pretoria has said it would review its membership of the ICC and challenge a high court ruling that found 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 17 July 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 informed us 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 the Chief Justice of 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 that; “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 recognizes 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 recognized by the community of nations as of universal concern and,

Fifth, the passive personal theory which authorizes 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. 

*Emmanuel Onwubiko is Head of Human rights Writers association of Nigeria and blogs @www.huriwa.blogspot.com, www.rightsassociationngr.com, www.huriwa.org.  

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