Tuesday, September 3, 2019

Is the Al Bashir Case at the International Criminal Court Beyond Any Compromise?

The purpose of this blog post is to assess the probability of a compromise in the case of Al Bashir in light of articles 16, 65 and 53 of the Rome Statute. Despite the prominent developments in the field of international criminal law, the failure to prevent such serious crimes such as genocide, war crimes and crimes against humanity remains salient. The reason behinds this failure is the fact that the deterring effects remain hardly unseen and the response of international criminal justice to these atrocities has not been not comprehensive. Primarily, Al Bashir's case is a legal one, and it can only be settled on legal grounds. On 31 March 2005, Resolution 1593 was adopted by The UNSC under Chapter VII of the UN Charter to refer the situation in Darfur – Sudan to the Prosecutor of the International Criminal Court (hereinafter the Court) based on article 13 (b) of the Rome Statute. On 14 July 2008, based on article 58 of Rome Statute the Prosecution filed an application requesting the issuance of an arrest warrant against the president of Sudan Al Bashir for his alleged criminal responsibility concerning the crimes committed in Darfur against the tribes of Fur, Masalit and Zaghawa including genocide, crimes against humanity and war crimes between the period 2003 to July 2008.
Since 2003, more than 300,0000 people have been killed, and over 2.3 million have internally displaced in Darfur. Now, crimes are not only committed in Darfur but throughout Sudan. According to Amnesty International, since the uprising began in Sudan on 19 December 2018, more than 45 people have been killed, 180 have been injured, and over 2,600 people have been unlawfully detained. It is accurate though the prosecution of grave crimes such as genocide, war crimes and crimes against humanity is essentially symbolic more than administering genuine justice to a massive number of people.
Several weeks ago, rumours circulated among Sudanese activists and politicians regarding the possibility of a political compromise that could involve dropping charges against AL Bashir in exchange for Bashir to step down and for the sake of stability in Sudan. These speculations have come out as a result of an interview with a prominent Sudanese/ British national and businessman, Mo Ibrahim, where he stated that "Sudan's president Omar Al Bashir should step down in exchange for war crimes by the ICC being dropped".
The indictment of Al Bashir has divided the Sudanese into camps. On one side, the Darfuris, who have suffered a great deal of injustice, are asking for justice. For this group, Al Bashir’s prosecution is symbolic. Some Darfuris may have no idea where the Hague is, but the importance for them is that Al Bashir will be prosecuted by very powerful people.
On the other side of the debate, the elite in Khartoum think that having Al Bashir standing trial on foreign soil is a humiliation to the entire nation since there still remains the possibility of having him justly prosecuted in Sudan. The issue has become sensitive to the extent that some politicians in the North can't even express their positions explicitly because in doing so they seem complicit with Al Bashir.

Article 16 of the Rome Statute:

Under article 16 of the Rome Statute, the UN Security Council (hereinafter UNSC) has the authority to suspend investigations or prosecutions at any time for one year, and then the suspension is renewable. The Court also has the discretion to decide whether or not to continue the prosecution or not. Article 16 has been questioned by international non-governmental human rights organisations, in the sense that it considerably hinders the independence of the Court. So far, article 16 has not been judicially construed. It might be possible that if the UNSC invoked article 16, the Court could challenge the validity of such a resolution.
 The Office of the Prosecutor has reviewed article 16 in a policy paper within the context of the Rome Statute and accordingly recognised the role of the UNSC. However, based on its discourse, the prosecutor has concluded that there is a difference between the interests of peace and the interests of justice insinuating that there is a shared responsibility with the former concerns belonging to the UNSC and the latter to the Court.
Therefore, it is unlikely that the UNSC will invoke article 16, notwithstanding the fact that the situation in Sudan could constitute a threat to international peace and security. First, article 16 it has never been invoked by the UNSC. Second, it would serve no purpose regarding Al Bashir stepping down because it does not mean that the charges will be dropped, but instead be stopped for one year or more depending on the circumstances. Al Bashir has no reason to step down while knowingly the case is going to be opened a year after, when he has no government to defend him.  

Article 65 of the Rome Statute:

According to article 65 of the Rome Statute, there is a suggestion for plea-bargaining. However, what is deemed as plea-bargaining under this article is not precisely the same plea-bargaining in the sense of the American concept.  According to Black’s Law Dictionary, Plea-bargaining is "an agreement set up between the plaintiff and the defendant to come to a resolution about a case, without ever taking it to trial". Under this aforementioned article, Al Bashir could potentially plead guilty in exchange for a light sentence or more serious charges being dropped. However, given the nature and the character of the court, plea-bargaining is hardly viable. In effect, during the drafting of the Rome Statute there had been a debate concerning the guilty plea as a procedural technique, but there was no suggestion on its applicability before the Court. There might have been some negotiations between the Prosecutor and the Defense counsels, but this has never been revealed in the public record. Deciding a case based on a guilty plea might be sufficient. Nonetheless, for the victims, this might signify a sense of compromise rather than seeking justice. For instance, in both tribunals namely, the Yugoslavia Tribunal (ICTY) and Rwanda Tribunal (ICTR), although some defendants have pled guilty to serious crimes such as genocide and crimes against humanity no charges were been dropped, or sentences shortened considerably. During the ICTY trials, it has been concluded that plea-bargaining is incompatible with the objectives of international criminal justice. However, the question remains as to whether or not Al Bashir will ever plead guilty by trusting the Court.

Article 53 of the Rome Statute:

Under article 53 (1) (c) of the Rome Statute, the Prosecutor has the power to determine whether or not to stop the investigation or prosecution. However, this applies only when there exisits substantial evidence and a reasonable belief that the prosecution or investigation concerned might not serve the interest of justice. It has been a decade since the indictment and arrest warrant. The defendant continues to commit more crimes against the Darfuris and Sudanese in general. Hence, from a legal perspective, article 53 provides no possibility for dropping the charges or stopping the prosecution. Thus the Prosecutor will likely not rely on article 53.


From a legal point of view, given the current circumstances and the nature of the crimes committed, the Prosecutor has no reasonable legal grounds to stop the prosecution in the case concerned.  Plea-bargaining might be a reasonable option for certain crimes, but not for serious or heinous crimes that involve a vast number of people who have been longing for justice for an incredibly long time. As a result it is unlikely that there will be any compromise, in particular, a legal one.
Based on the promise the Court has given to the victims, the primary reasons for the referral of the case to the court, the deterioration of the situation in Darfur in particular, and Sudan in general: If the UNSC invoked article 16, it would not only contradict itself, but it would be blatantly disregarding the tenets of international law. Furthermore, if this happens, it will create assumptions that the court is another neo colonialist tool.
Additionally, the Court is different from other ad hoc tribunals. While the Court is deemed to be an independent legal entity, the ad hoc tribunals are part of the UN organs because the UNSC has established them. Furthermore, the Court has from the very beginning maintained the approach that it is an independent entity and it has the mandate that authorises it to try any individuals no matter how powerful they are or what their backgrounds might be regardless. Notwithstanding this, the Court has been highly criticised, fundamentally for its universal nature and the downgrading of cultural differences.
Be that as it may, it is safe to say that the criticisms, the shortcomings of the Court and the withdrawing of some states parties are all part of the Court’s processes of development. In such a complex, globalised world, where states are still deemed to be the primary subjects, it is unrealistic to have an International Criminal Court without such imperfections.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.

Wednesday, December 5, 2018

Exploring the Cultural Legitimacy of the International Criminal Court

In January of this year I successfully defended my Ph.D thesis entitled “The Road to Reconciliation? Optimizing the Legitimacy and Efficacy of the International Criminal Court within the African Union and in Africa.” This book will be published in 2019. The stimulus for undertaking this piece of research was based on the fact that at some point all cases before the International Criminal Court had been opened exclusively in Africa. As a result the African Union over these past years regularly threatened mass withdrawal from the ICC on the basis of selective prosecution that had exacerbated ties between both institutions. Further developments included the failed Kenyan cases at the International Criminal Court where the Prosecutor was forced to drop charges against Kenyan President, Uhuru Kenyatta for lack of evidence leading to a further deficit of legitimacy within the AU and in some parts of Africa. Other developments also saw South Africa formally deposit its instrument of withdrawal from the ICC as well as The Gambia and Burundi following suit. Given these developments and on hindsight this piece of research in my opinion has proven to be invaluable, actual and relevant over these past years.

While my book in effect explores three main deficit areas of the International Criminal Court’s legitimacy such as its institutional legitimacy, jurisdictional legitimacy and cultural legitimacy, if objectively viewed from beginning to end this piece of research weaves in aspects of culture as viewed from an African perspective that are at odds with international criminal law and thus in effect poses problems at the level of the ICC. So the book essentially focuses on the ways in which the Court can develop a better understanding of Africa, and advocates a practical approach to implementing a more culturally attuned way to enforcing international criminal justice. I would like to boldly add here that the issue of law and culture has never been explored from a perspective that merges most cultural conundrums that affect ICL, and more importantly by an African scholar such as myself, and while there are many wonderful authors who have explored the issue of culture and the law either from an anthropologically exclusive perspective or from an international legal perspective nobody has combined all these issues so comprehensively in a compilation on ICL and the ICC as yet. Credit must be given to the insights of authors such as Tim Kelsall, Rene Provost, Nancy Combs, David Rosen, Susan Shepler, Mark Drumbl, and Alison Rentelen amongst many others, whose wonderful work I am in awe of, and whose research has proven invaluable to my final insights in this book. The relevance of exploring culture in conjunction with international criminal law and human rights has ultimately been to contribute towards a more effective and optimistic cooperation between the Court and the African Union, and generally a better cooperation with Africa as well. I am proud to stress that the end goal of my research has thus been to facilitate reconciliation between the Court and the African Union, and by extension reconciliation with Africa in general.

For purposes of this blog post however, I will specifically cover the issue of cultural legitimacy which I address in detail in one portion of my book. There will be two additional blog posts that will focus on the remainder of my research namely the ICC’s institutional legitimacy and jurisdictional legitimacy, but for purposes of this present discussion I will zoom in on the cultural aspects that are at odds with with International Criminal Law.

Under the section of of cultural legitimacy in my book, I start off by exploring what would be the most culturally legitimate approach that the disciplines of human rights and international criminal law could adopt from a moral and ideological perspective. Here I delve into the debate on universalism and relativism and finally concede that a third way or middle way approach might be the most viable approach to increase popular support across a diversity of cultures both for human rights and ICL. A third way approach that I advocate for is one that commits to universal standards but at the same time takes cognisance of diversity, meaning that changing societal values must be taken into account in light of existing legislation in place. At the level of the judiciary, this would require a more teleological interpretation of the law instead of only the strict adherence to the literal letter of the law meaning that judges not only would need to be diverse but would need to represent a diversity of views. In other words judges would need to be open minded and culturally sensitive enough when adjudicating on the case in question. A third way approach would therefore be indicative of a pluralistic system that does not infringe on human rights or pivotal requirements of ICL but at the same time it would need to be flexible and practical enough to accommodate cultural pluralism.

At the level of the ICC this will speak to the multitude of constituencies that the ICC currently serves and more so to those that are deeply pluralistic societies such as African states parties and perhaps even Latin American states parties. In this way pluralism will ensure that the less dominant legal culture is protected against the dominant legal culture which arguably is the Western legal culture. Should the ICC for reasons of democracy and public policy take into account the reality of cultural diversity, and thus pluralism, it could garner more public support from its African constituents while still maintaining continued support from its Western constituency. Furthermore the benefits of pluralism for an accused would in turn mean that an accused’s right to culture is balanced with his right to a fair trial if cultural proclivities genuinely play a role in his/her case.

Aside from multiculturalism and pluralism a second area I explore are cultural paradigms that are currently facing the ICC. Here I have particularly delved into procedural and substantive aspects of ICL that are at odds with culture. Procedural problems take the form, where for instance witnesses from radically different cultural backgrounds are called upon to testify at the ICC, and linguistic diversity for instance poses a problem. Similarly I explore substantive aspects of of ICL such as the criminalising of certain acts as well as the definition of certain crimes that do not fit in to the 'mould' of another's cultural understanding of the act or crime in question that do pose a problem in ICL and subsequently also at the ICC. So cultural paradigms such as the genuine belief in magic, sorcery and witchcraft, differing cultural conceptions such as childhood, familial relationships, patrimony and sexual taboos although featuring often in international criminal trials have been overlooked or neglected because they cannot match up to or reconcile  with the “rational” disposition of judges and other legal professionals. These cultural paradigms if ignored can directly impact on the fairness of the trial and the quality of judicial determinations handed down especially when the mens rea of an accused becomes questionable.

Tuesday, May 8, 2018

The Veil of Sexual Shame: The Impact of Sexual Violence and its Social Stigma in the Case of the Rohingya

It has commonly come to be known that sexual violence is integrally associated with shame and stigma. The logic that aggressors employ in using this tactic as a weapon of war is usually meant not only  to undermine the individual but also the collective identity of an entire community. In this way aggressors destroy social relationships and the fabric of a community that thrive on traditional religious and moral understandings of the institution of marriage and family. In a recent UN Security Council Meeting dealing with the repercussions of sexual violence in conflict situations, Acting Special Representative of the Secretary General of Sexual Violence in Conflict Adama Dieng stated that not only does sexual violence “turn victims into outcasts by fracturing families and corroding community structures but it also prevents justice from really being done.” In Dieng’s words it is the “stigma that kills and prevents victims from coming forward.  Much of the time it is this fear and cultural stigma prevents most survivors from claiming their rights and the proper legal assistance available to them.
Social stigma associated with sexual violence may in some societies be even more pronounced than in others. Research has, for example shown that in the MENA region while the rate of sexual violence is quite high the prosecution and conviction of rape is quite rare. This can be attributed to the fact that rape victims will probably face a plethora of stigma associated with the crime, part of which includes dishonour and accordingly a diminished prospect at marriage. The severity of the stigma that attaches is evident through some of the laws that are promulgated in some Islamic countries which go as far as forcing rape victims to marry their rapists in an attempt to restore family honour and dignity. In such situations it is believed that the woman who has been raped is better off being married to her rapist as a trade for her decency and honour. No doubt this is where some people err and confuse Islamic law by mistakenly equating rape with adultery or fornication. Interestingly the Quaran condemns the crime of rape classifying it as one of the violent and vilest crimes and clearly denotes it as a form of terrorism.
Considering the social stigma of sexual violence, often faced in some communities it may not be so far fetched in trying to understand the recent events surrounding Rohingya particularly the plight of Rohingya women and children who have fallen prey to and who have become victims of sexual violence in recent months. The massive displacement of this Burmese ethnic group has reached a climax as of last year where approximately half a million Rohingya have fled the country leaving those displaced living in refugee camps all across neighbouring Bangladesh .  Since 1824 the Rohingya as a Muslim minority in Myanmar have faced and continue to face a plethora of discrimination. This has been due to the fact that they have been rendered citizenless following applicable legislation regulating their status in Myanmar and are therefore seen as illegally residing in the country. As a result, many have been unable to get access to basic human rights some of which include proper access to education, religion, healthcare, and employment.  
As a further consequence, tensions emanating out of the relationship between Buddhist and Rohingya in Rakhine state has further exacerbated matters and has acted as a catalyst in the most recent humanitarian crisis in Myanmar. This has led to large-scale attacks against Rohingya including large- scale sexual attacks where women and children have been indiscriminately targeted. Increasingly evidence confirms that Myanmar’s military uses systematic mass rape and sexual violence as a form of ethnic cleansing, the impact of which is to arguably destroy this ethnic minority. Employing sexual violence as a weapon of war has evidently demonstrated that such violations are so powerful in Rohingya communities that it threatens to derail family life and family honour. From interviews conducted with Rohingya victims of sexual violence it has become apparent that many victims of rape much of the time keep the details of their sexual violations a secret fearing that their status as ‘soiled’ women will not only undermine their existing relationships with family and friends but more so, the relationships they hold with their husbands. In other words, there is a fear that once their husbands discover that they have been sexually violated they might face further rejection and dispossession. Single women also face a similar fear and stigma, namely that they will never be married or desired as a prospective partner should their ‘status’ as one who has been sexually marred, come out into the open. An explanation for this might be that the violation in question is deemed to be so shameful that erroneously part of the blame falls on the victim rather than on the sole perpetrator/s of the crime. Women in some instances may thus be seen as complicit in the act of rape and may therefore be perceived as having sex outside the boundaries of their marriage union and their religion
It is not surprising, that perpetrators of sexual violence also realize these benefits and therefore employ sexual violence methodically, as an alternative to weapons, but nevertheless still as a very effective weapon of war.  What may however come across unusual, in this particular instance could be however, the fact that Buddhists who are much of the time considered to be peace loving and non-violent have been the ones who have been pivotal in orchestrating these vicious and planned attacks. This goes to show that Western understandings of Buddhism tend to idealize and romanticize Buddhism and that Buddhism  itself like any other religion may be prone to corruption and used to promote violence and extremism if wrongly wielded. This raises a number of issues that I will address in a future post, namely  the origins of violence in Buddhism as a means to political ends; additionally, the role of women in Buddhism considering the inferior position that women hold in Buddhist culture and relatedly, the role of sex in Buddhism if one considers the use and value of women as sexual consorts in Tantric Buddhism. Finally the reasons why anti-muslim or anti- Rohingya sentiment has been spreading in Myanmar will be pondered upon to consider the deeper issues at play.

Posted by Ingrid Roestenburg Morgan