Bringing The Cultural Defences of Dominic Ongwen into Practice at the ICC

 

Dominic Ongwen at the ICC

In 2015 I dedicated a blog post to the cultural defence where I felt that cultural defences could likely fit into and within the framework of existing defences at the International Criminal Court. (see The Realities of a Cultural Defence at the ICC?) I used the Ongwen case as a point of departure at a time when Ongwen was newly arrested and transferred to the ICC. In the aforementioned blog post which highlighted portions of my newly fledged research and which over time evolved into my existing research, I argued that the defences of mental illness as stipulated under articles 31(a) of the Rome Statute and the defence of duress under article 31(d) of the Rome Statute might be employed to qualify cultural arguments that were lived and relevant realities encapsulating and inherent to the LRA context and that these realities could potentially impact on Ongwen’s criminal responsibility.

Very briefly, to sum up my arguments in that particular blog post, I suggested that Post Traumatic Stress Disorder (PTSD), which experts seriously believe, impairs the mental health of child soldiers and young combatants may eventually manifest in chronic mental health issues. This leads to the complete destruction of the defendant’s mental capacity. Based on empirical studies conducted I argued that child soldiers abducted into the LRA experienced such traumatic events and were bound to experience chronic mental issues as a result of their traumatic past. 

Under the defence of duress I also argued that cultural and spiritual influences, which were so deeply embedded in the LRA organizational culture likely, exerted undue influence or duress on LRA combatants to commit crimes not otherwise readily committed. In the post I showed that LRA’s reliance on the use of religion and tradition to instil fear, intimidation and ultimately obedience amongst their followers demonstrated the importance of religion and spirituality in Africa as both a cultural practice and a determinant of social action. My arguments suggested that as part of the motivation for young recruits to join LRA ranks assumed that they would be spiritually protected during battle through the use of immunising rituals and through direct spiritual reinforcement. I went on further to indicate that a spiritual hierarchy existed and that Joseph Kony, as its spiritual head and messenger was central in this hierarchy. According to this existing spiritual hierarchy the final authority was vested in the spirits who laid down various rules. LRA followers of Kony had to closely adhere to these rules to avoid punishment by the spirits or else face death on the battlefield. So in essence these beliefs in this spiritual order, I argued, were so strong that they arguably created control amongst LRA combatants. 

Now fast forward to 2021 where the Ongwen case has since reached a pinnacle at the ICC. The final judgment was rendered at the beginning of February of this year and the Trial Chamber subsequently found Ongwen guilty of 61 counts of crimes against humanity and war crimes committed in Northern Uganda between July 1, 2002, and 31 December 2005. Ongwen has been convicted of 19 counts of sexual and gender-based crimes including forced marriage, torture, rape, slavery, enslavement, forced pregnancy, and outrages upon personal dignity. 

 

Most interesting in the Ongwen case has been the Defence’s case, which has utilized the same line of defences, mental illness and duress which I proffered in 2015, long before the case even came to trial. Their use and reliance on expert witness testimony to verify their lines of argumentation has not only highlighted the complexities of this case but has started to revolutionize the way cultural evidence has been presented at the ICC or at any international criminal tribunal or court for that matter. Theirs is a novel approach placing many of my legal reasoning’s on the cultural defence in this particular case into practice and testing these at the ICC.  Summed up the Defence case highlighted four main aspects believed to be crucial for the Judges consideration. These were:

Mr Ongwen is a Child Victim of the LRA

Firstly the Defence held that Ongwen is a victim, not a perpetrator. They argued that he was abducted as a young child by the LRA and brutalized for almost three decades before he was able to voluntarily surrender to the military. As result they argued that Ongwen suffered long-term mental destruction, which essentially meant that there was destruction of his mental abilities and thus his mental capacity. Adjacent to this they added that Ongwen had the mental age of a child and that although he had “chronologically grown into adulthood he had mentally remained a child.”(I also argued this in a recent article as well). Through this line of reasoning the Defence averred that Ongwen’s status as a child/victim should not be overlooked by the Trial Chamber. They reiterated throughout the proceedings that Ongwen must be viewed as a victim over a perpetrator contrary to the Prosecution’s arguments. They also argued that the Prosecution failed to give any empirical evidence on how a child soldier transcended from victimhood into a perpetrator.

The Structure of the LRA and Mr Ongwen’s Status

Another point that they made was that the LRA was not a conventional army. Rather than rely on the hierarchical command structure of the LRA, Kony relied more readily on the command structure of the Council of Spirits, which in their view was departmentalized. They held that the Prosecution did not prove a structure and hierarchy that placed Ongwen in a command position. These arguments are very similar arguments, which I also made previously on the issue of command responsibility in the Bemba case as well some years back. 

The Perversion of Acholi Culture by LRA Spiritualism

Ongwen’s Defence went on to argue that the rules, regulations and orders on policy matters were established and issued by the Spirits through Kony as its medium. According to them Kony viewed himself as an Acholi nationalist, who was sent by God to save the Acholi. There was a widespread and firm belief that the orders of the Spirits that Kony gave were mystical. These rules played a restraining function and gave a sense of protection against harm and thereby tied the individual (Ongwen) further into the movement. The only way to survive in the bush was to follow the edicts of the Spirits. Everybody in the LRA believed Kony’s spiritual attributes as a messenger of the omnipotent and omnipresent God. Every commander – division, brigade, and unit – knew that he or she had no choice but to implement Kony’s orders. The Ten Commandments and spiritualism in the LRA were effectively used as the main tool of control by Kony to exact fear throughout the LRA. In this way the Defence attempted to divert responsibility from Ongwen and append this responsibility onto Kony.

The stand-alone nature of the case

Finally they submitted that what makes this case stand out is its peculiar factual situation, shrouded in spiritualism and the mystical. They held that the role of spiritualism is a novel issue in international courts and tribunals. Its significant impact on the conduct and actions of groups like the LRA has never been litigated before. Spiritualism in the LRA was the main tool used by Kony to remain on top of the LRA. It is in this context that spiritualism and duress as its direct consequence can be assessed and understood as the main drivers of the conduct of the LRA and the victimization of Ongwen. The Defence submitted that the absolutism with which Kony ran the LRA, using spiritualism, is a stand-alone experience in international criminal law, implying that it would necessitate a cautious and balanced response from the Trial Chamber. 

Conclusion

Despite the aforementioned pleas made to the Trial Chamber by Ongwen’s Defence Team, the two affirmative defences that they raised, namely mental disease and duress were out rightly rejected. The defences raised were not necessarily met with the proportionality that could have been applied in this particular case by the Trial Chamber based on Ongwen’s particular and complex background. However, this was still a unique opportunity for the Trial Chamber to engage on these issues nonetheless. It could however have been a perfect opportunity to set a novel and unique precedent on some of the more complex issues that continue to plague the ICL, namely Ongwen’s status as both victim and perpetrator by recognizing and accepting the complexities surrounding child soldiers and their culpability, the significance of raising cultural defences when and if they are applicable and relevant in a particular context, the necessity of engaging more meaningfully and less mechanically on issues where context specificity influence or are at odds with international legal doctrine. The Defence case in Ongwen has however set precedent for the use of a moderate cultural defence at the ICC and that in itself is a significant departure at the ICC and in international criminal law.

Posted by Ingrid Roestenburg Morgan

Lets Dance: From South Africa’s Toyi-Toyi to New Zealand’s Haka for Impacful Protest

Traditional Maori's performing the Haka 

Following in the footsteps of a previous blog post, this blog article will continue to examine and explore traditional modes of activism and resistance in this instance expressed through dance. Dance has served as a mode of popular resistance, protest and activism in various contexts. In this post the toyi-toyi dance well known in the South African context and the Haka dance, a traditional dance used by the Maori of New Zealand will be discussed highlighting this powerful form of protest and activism. Both forms of dance once served and continues to serve as effective conduits of protest and political resistance in South Africa and also New Zealand. This blog article will examine the cultural relevance and effectiveness of this mode of resistance in both highlighted contexts and will demonstrate the impactfulness of powerful forms of art such as dance in these specific two instances.

Description of the Toyi-Toyi and Haka

First it is important to visualize or depict how both dances are performed. Toyi-toyi is a rhythmic dance that can be best characterized by stomping and by jumping up and down in shifts of one leg at a time. It closely resembles a type of slow jogging on the spot with high-kneed foot stomping. The dance is usually accompanied with chants and confrontational songs. The Haka similarly is dance where a dancers pound their chests in unison with one another, while stomping their feet and jumping up high. It features a number of gestures that include threatening eyes and the poking out of tongues by the dancers performing the dance. 

Historical and Cultural Value of Both Dances

The historical value of the toyi-toyi to South African society find its roots ironically enough in Northern Africa with Algerian roots. Toyi-toyi is thought to be an Arabic phrase and has been associated with a military drill and training during the liberation of Algeria. The dance moved down to Tanzania and Zambia and then to Zimbabwe all the while changing its character and taking on a more nationalist and loyalist character. It eventually made its way to South Africa through South Africa’s main liberation army Umkhonto weSizwe  (Spear of the Nation), whose soldiers shared military camps with Zimbabweans and Zambians and where it was eventually adopted and learned. Its final destination led to its spread in the townships of South Africa when the soldiers of MK returned to their homes in South Africa. Its popularity was found mostly with young marginalized South Africans who could link their struggles and protests against apartheid to the liberation struggles of others. 

Toyi-Toyi being performed during anti-apartheid protests

The Toyi-toyi brought with it a new type of militarization as protests in South Africa became more hostile and confrontational. Its intimidating character resembled a war dance and it was used as an effective weapon against the then South African racist regime. Its aim was to instill fear in the heart of the enemy and even though most protesters were often unarmed. Much of the time protesters performing the dance succeeded in creating an intimidating environment as evidenced by the apartheid government escalating the use of violence based on the growing unrest in the country that the dance facilitated. The toyi toyi must therefore be seen as playing a pivotal part through protest in the overthrow of the apartheid regime in South Africa.  In current day South Africa the toyi toyi continues to be used in protests and is still used to indicate discontent but it is also seen as a celebratory ritual and joyous dance. 

If the toyi-toyi is synonymous with South Africa, then the Haka is synonymous with New Zealand. Its roots stem from the Maori an indigenous people of New Zealand. The Haka was performed by different Maori tribes as a war dance and was used to intimidate and scare opponents. It was a cry to the Gods to gain victory over the enemy and to receive courage and strength during battle. The dance while often viewed as intimidating must also be seen as preparation for battle and the challenges ahead. Over time the Haka has also taken on a celebratory nature and it has been used to celebrate weddings, births and other important occasions.  Most recently the Haka made news during the protests following George Floyd’s death where a New Zealanders performed the dance in solidarity and in unity with the Black Lives Matter movement. The strong linkages with Maori spirituality faciliatates a call to the ancestors to endow strength to the dancer in order to intimidate his enemies and stand in protest and solidarity with those most aggrieved. 

Commonalities for Impactful Protest

The commonalities between the ToyiToyi and the Haka are striking. Both dances pay homage to the history and importance of dance in protest and both are drivers of meaningful change. Both dances exude the pride and fearlessness of people confronting inequalities and pursuing their human rights and freedoms in the face of authoritarian governments and unjust laws. Through dance, society’s most marginalized can demand justice and equality in a manner that is bold and confronting yet fundamentally non-violent.  Nothing is more universal, visceral and primal and which can emphasize human emotions so eloquently than dance. What other art form can use the human body in a way that provokes and confronts social injustice so compellingly?

Posted by Ingrid Roestenburg-Morgan

Minority Rights Challenged by the Legally Pluralist Coexistence of a Nation’s Civil Law with Islamic law: A Case-study of Greece

This blogpost serves as a summary of my LL.M thesis which concerns the problematic coexistence of Islamic Law with Greek Civil Law regarding the protection of the Muslim minority in Western Thrace in Greece. The aim of this post is to emphasise the importance of the conceptual understanding when confronting legal issues that entail a different set of values and political complicacies. The coexistence of two or multiple legal regimes within a country can raise several legal issues. For instance, the co-presence of Greece’s civil law with Sharia underlines precisely the judicial controversy and the differences between the Islamic values and those of the Greek Constitution and human rights law. Let us not forget that Greece is also a member State to several international human rights conventions and has the responsibility to respect, protect, and fulfil its human rights obligations. Notably, a multiple set of different legal frameworks and regimes are entangled for the protection of the Muslim minority’s rights. 

The Molla Sali v. Greece challenged the compatibility of a religious community’s separate legal status with the principles enshrined by the European Convention on Human Rights (ECHR). The case accentuated the debatable compatibility of Sharia with the ECHR principles. The applicant of the Molla Sali v. Greece case belongs to the Muslim minority of Western Thrace in Greece to which the applicable legal regime for inheritance and family issues is Sharia. Molla Sali complained that the implementation of religious adjudication to her issue by the Greek Court of Cassation deprived her of her right concerning the protection of property.

The outcome of the case has a significant impact on the parallel operation of Sharia law and the Greek Civil law for the minority. Before the case of Molla Sali, Sharia was compulsorily applied for the settlement of private law issues. The dual existence of these legal systems in Greece as a distinct setting for the religious minority in Thrace is a result of numerous international treaties between Greece and Turkey. The most important legal text that sets up the legal framework for the protection of the minorities in Greece is the 1923 Treaty of Lausanne. It is the most determining legal document regarding the legal status of the minorities in the country.  The Greek legislation’s interpretation of Articles 42 and 45 of the Lausanne Treaty is of great significance. The mandatory application of the Sharia law for the Muslim minority is nowhere explicitly provided in the Treaty. Instead, it mentions that the Government needs to adopt appropriate measures for the minority’s interpersonal disputes on family and inheritance law following the customs of the minority. Thus, the establishment of the Islamic adjudication system for the minority is viewed by the Greek Court of Cassation as stemming from international obligations set by the Treaty.

The European Court of Human Rights (ECtHR) did not accept the Greek Government’s arguments that the mandatory implementation of Sharia was to protect the distinctive characteristics of the minority according to its obligations set from the Treaty of Lausanne. The Court reiterates in its Judgement that according to its case-law, freedom of religion does not entail the requirement for the Contracting States to establish a specific legal system for the protection of the special status of a religious community that requires particular entitlements. It, therefore, did not commend that a State proceeded to the establishment of a religious regime just to secure the distinct needs of the minority. 

Moreover, the ECtHR in its Judgement in the Molla Sali v Greece case did not address the debatable compatibility of Islamic Law and Human Rights Law despite its opportunity to do so. Considering the Court’s general approach according to its previous case law towards Sharia (Refah Partisi v. Turkey), no determination is given on to what degree Sharia’s operation in Greece conforms with the Convention. At the same time, the Greek State was not requested by the Court to abolish the enforcement of Sharia for the minority. What the Court did was only to condemn the mandatory character of Sharia’s operation “but not Sharia itself.”

Consequently, the case of Molla Sali v. Greece introduced another version of the legal parallel regime in Greece. Its outcome is Sharia’s optional implementation according to the reformed Law in Greece. Precisely, in case of a disagreement between the involved parties, the dispute will be settled by civil law. The right to exit the minority’s legal order and the right to choose the civil law instead of Sharia highlights the right to self-identification, which agrees with the ECHR. Therefore, the new law seems to have ended a state of discrimination for the minority in Thrace. However, the complicacy in this case is that the individual choice of a minority member may conflict with the minority’s identity with religious law.

The automatic dispute resolution in cases of disagreement by the Greek Civil Code undermines the weightiness of Sharia within the context of Islam and the customs of Muslim communities in general. It needs to be stressed that even the optional implementation of Sharia law could undermine the religious legal system of the minority and its customs. Other members who identify themselves with their religion and its sacred rules will probably feel side-lined by the indirect imposition of civil law. Considering that there is no delivered Judgment on the new law yet, the religious freedom’s individualistic approach will be put under test in the future.

Finally, aside from the case’s legal problematic, a contextual understanding is essential. It must be underlined that concerns involving the minority in Thrace have often been put in the middle of bilateral political disputes between Turkey and Greece. The Greek Government’s hesitancy regarding the law’s modification for the Muslim minority’s interpersonal disputes settlement, before the case of Molla Sali, is partly due to those political sensitivities. Any change in the applicable law in Thrace could incite Turkey’s demand for “changes to the Lausanne Treaty’s” provisions, which are ongoing and not limited to the Muslim minority’s situation.

In conclusion, apart from the legal assessment of the case, a more conceptual and anthropological approach as an assessment tool, could have been a solid base for the peculiar situation in Greece. This case could have highlighted the multi-faceted role of minorities regarding the stabilization of bilateral State relations. Potentially, it could also have illustrated how the human rights mandate is applied to such complicated conditions. Especially, the implementation of law in conjunction to the complexity of internal and external political situations of States. 

  Source: Greece: Status of Minorities | Law Library of Congress (loc.gov)

Guest Post by Niki Manafa. Niki is a postgraduate LL.M Student of Utrecht University's Public International Law Programme. She has worked as a Trainee at the International Organisation for Migration in Athens, Greece and in the Greek Consulate in Munich, Germany and has also undertaken several research internships related to human rights law and international relations.

Radical Rudeness: A Mode of Traditional and Cultural Resistance and Activism in Uganda

Dr. Stella Nyanzi Protesting Outside a Ugandan Court in February 2020

Africans, particularly African women have long had a history of engaging in individual activism and collective struggle against multiple forms of oppression and discriminations on the continent. These struggles find their origins and often stem out of the colonial period or during periods of severe injustice and oppression.  Resistance and activism of this type has been pivotal in establishing women’s autonomy and agency and very often finds its roots or is institutionalised in traditional African cultural systems. This blog article will attempt to highlight the linkages between between traditional practices that are grounded in activism and resistance and which have served as catalysts in the achievement of various human rights and freedoms curtailed or denied at various times in history and in certain contexts in Africa. In this blog, attention will be paid to radical rudeness as a traditional mode of resistance in Uganda. A series of subsequent blog articles will follow in the coming months that will continue to explore traditional based protests in Africa such as that of nakedness and nudity, motherhood and tough love, as well as music and dance as ways of confronting inequality and other forms of social oppression.

The Roots of Radical Rudeness 

The concept of radical rudeness is one that has recently re- emerged in the context of Uganda. It is a mode of activism that has been reignited and has in recent years been claimed and made popular by the feminist-activist, poet and academic Dr. Stella Nyanzi.  Nyanzi has become well known for regularly challenging Ugandan President, Yoweri Museveni with personal attacks, curses and vividly erotic poetry in attempt to question the Ugandan government’s alleged corruption and questionable political manoeuvrings in the country. Radical rudeness as a form of activism found its roots in the early 1940’s when a group of Ugandan elitist activists in the Kingdom of Buganda attempted to challenge the status quo of power that existed between the ruling British elites and upcoming elites from Buganda. At that particular time the power that existed and was wielded by the British was often encapsulated and couched in politeness, manners, hospitality and sociability through which the British were able to secure both economic and political advantages from loyal Ugandan elites. This form of power was however, abruptly disrupted when a group of Ugandan elitist activists hailing from the Kingdom of Buganda used tactics of rudeness and a strategy of public insults to create disorderliness and disruption that worked to break the falsity of colonial ties, friendships/partnerships and mutual benefit between Ugandan elites and the ruling colonists.  Most importantly the method of radical rudeness worked to expose the true intentions of the colonial administration at that time.

Radical rudeness as a method of activism or resistance was implemented through activists employing strong and vividly powerful metaphors publicly either through the publication and dissemination of pamphlets, or through the disruption of public events that worked to destabilize the colonial administration by exposing the true intentions of the British. These insults took on various forms. As Carol Summers, in her article entitled Radical Rudeness: Ugandan Social Critiques in the 1940’s notes, metaphors of disrespect and insult were often used as tactics to champion the colonial administration. For example a metaphor  ‘Dogs of the British’ was used to refer to some Ugandan elites who were like British ‘pets.’ They were permitted into British homes, permitted to partake in all aspects of British culture and customs but in fact were considered dogs by the British because of their “half human” nature. 

Through this derogatory public insult, Ugandan elites who supported the British administration in Uganda were called out for displaying their disloyalty to their fellow countrymen by remaining loyal to their colonial masters and turning a blind eye to the suffering of their fellow countrymen. Activists suggested that these ‘dogs’ were deceived by the pretense of British civility and kindness endowed upon them by their colonial masters who in the end would inevitably face betrayal if British interests came into play. The critique further pointed to the self-deceit that Ugandan elites had been facing because of their identification with the British which insidiously was leading to the loss of control of their own freedoms, self worth and their overall economic disenfranchisement.  

This not only insulted the colonial leadership in Uganda but also attacked the “economic basis of patronage and hospitality which served as a means of ensuring continued power and control by the British administration. The impact that radical rudeness had during this particular period was destabilizing in the sense that it worked to mobilize thousands of people at meetings and gatherings creating the threat of violence and seizing the right to association and freedom of speech, which at that particular time were not recognized as rights in the country. The impact of this type of resistance and activism generated defiance and in turn destabilized the colonial administration, which at that time was considered very effective and progressive. 

Confrontational Advocacy as Weapon to Challenge Oppression and Subjugation

The activism behind radical rudeness has found new stirrings in current day Uganda and has become an effective weapon to challenge the curb on certain human rights such as freedom of speech, freedom of expression and LGBTQ rights, the latter of which have been limited or restricted under Museveni’s rule.  Feminist, activist and poet Stella Nyanzi has publicly challenged power through her many expletive and public tongue-lashings of the President and his family. Nyanzi has for instance referred to the President as a pair of buttocks and has additionally referred to his wife as a “big thighed cow with an empty brain.” She has even gone a step further and written an untitled poem about Museveni’s mother’s vagina graphically describing it in grotesque, disrespectful terms (see poem here). Her latter action however landed her in prison for metaphorically referring to the 35 year oppressive rule by Museveni, but did not however deter her resolve to publicly out her frustration as an activist who wants to see change in her country.  Through all these ongoing developments she has even taken the liberty to further to publish a collection of activist poems that probe gender rigidities, lesbian relationships and miscarriage. The book is entitled ‘No roses from my mouth’ and was published while she was still incarcerated and is a challenge to patriarchy and oppression and the ‘standards of civility of those in power.’ It is clear that the use of this type activism and resistance is destabilizing especially in more conservative societies where certain freedoms such as freedom of expression is frowned upon and suppressed, and where strong cultural taboos exist that defy openly discussing certain topics such as sex, sexuality, and homosexuality. The effectiveness of radical rudeness however in the context of Uganda and through Nyanzi’s activism can be verified on a number of levels. Firstly Nyanzi has certainly made waves both in her country and beyond with her activism gaining a level of notoriety, international renown and support. Most recently she was awarded the 2020 Oxfam Novib/PEN International award for her collection of poems for freedom of expression and in the same vein to demonstrate that the pen is mightier than the sword.  She has furthermore used her activism and advocacy to create impact on the rights of women, LGBTQ rights, and rights attached to sexual freedom. Furthermore she also has also drawn attention to the right to education and its intersections with poverty and thereby the value of education for young women and girls. 

It is clear that the nature of radical rudeness as a traditional or cultural mode of activism is a threatening form of activism to those in power. Its effectiveness as was demonstrated has been tested and found successful in the past and present day context through challenging the rules of politeness and exposing the weaknesses of authoritarian systems of power.  This type of activism can only be achieved through the strength and courage of a few who are willing to place their lives and bodies on the line by championing systems fraught with inequality and oppression. An activism of this type mobilizes awareness, creates power and causes political shifts. It is a true ode to the right to freedom of expression. 

Posted by Ingrid Roestenburg-Morgan

 

Sudan: Prospects of Justice after the Downfall of Al Bashir

Sudanese Protesters During 2019 Protests

Sudan is one of the largest and diverse countries in Africa. It has also witnessed the longest civil war on the continent. Ever since 1989, it has been synonymous and has come to be known as a country suffering from violence and grave human rights violations including genocide, war crimes and crimes against humanity.  From this period it has also been governed by the most notorious Islamist political party, which has essentially relied on the principle of divide and rule. As a result, millions of innocent people have either been killed or forcibly displaced or fled the country over the past three decades.

Most recent events in Sudan defy logic and reason if one takes into account the country's background and historical context. The recent demonstrations have been the most massive demonstrations that modern statehood has ever experienced. The attempt to peacefully overthrow the Islamic regime in Khartoum started in 2013 and led to more drastic demonstrations in December of 2018 when more than 80 protesters were killed and hundreds injured.  

Al Bashir, the now ousted president of Sudan has always been a prominent figure in the infamous international Muslim Brotherhood organization and a pivotal leader in the branch of Sudan’s so-called National Islamic Front. Currently Al Bashir is wanted by the International Criminal Court (ICC) for serious and grave crimes committed in the Darfur region where since 2003, notwithstanding the thousands of refugees in neighbouring countries, more than 300,0000 people have been killed, and over 2.3 million internally displaced.

As one of the longest serving presidents on the African continent it was the Muslim Brotherhood that brought Al Bashir to power over 30 years ago in a coup originally orchestrated by the well-known brotherhood leader Dr. Al Turabi. The Muslim Brotherhood was a highly organized and elitist organization and its Sudanese branch was established by a group of students in 1949. Sudan has since been ruled for 30 years by the Muslim Brotherhood organization whose values have become deeply embedded and entrenched in almost every area of the Sudanese society.

The Challenges

The challenges facing Sudan in terms of peaceful transition were myriad. Firstly, existing political parties that were oppressed for the past thirty years were now dealing with the biggest demonstrations taking place in the 21st century. These political parties have faced continued threats from the Muslim Brotherhood and were particularly fearful that a new military coup would ensue. It was thus initially considered unlikely that a transitional agreement would be reached whereby a competent leadership would take over power during take over during the transitional period. Without credible leadership it remained questionable whether issues of peace and justice could be adequately and effectively addressed.

Secondly, in terms of grave crimes and gross human rights violations committed in Darfur, including the Blue Nile and Nuba Mountains, victims have been waiting for justice for a very long time and the question on everyone's minds was how would it be possible to deliver justice adequately and effectively enough, in the given situation. The conflict has seen millions of people who have been forcibly displaced into IDPs, and thousands who have fled the country with over a million that have been killed in the above mentioned regions over the last two decades. The challenge was how to deliver justice to such a significant number of victims and how to ensure for the effective prosecution of thousands of perpetrators in light of a weak, incompetent and corrupt judicial system?

Finally, there was the difficulty of achieving lasting peace in the destroyed regions in the country. Given the fact that several rebel forces with different capacities and interests were functioning in and out of these regions for roughly almost two decades the difficulty was further compounded by the necessity of securing a comprehensive peace agreement that would encapsulate the crimes committed by these armed forces and groups.

The Situation Until Recently 

After nearly thirty years of oppression, appalling injustice, and poverty that resulted in generations who were deprived of their inherent rights such as the right to vote, the right to life and the right not to be tortured, a major shift in political power took place in Sudan when protests began in December of 2018. People from different walks of life protested continuously for eight months in an attempt to put an end to the vicious and historical cycle of civil war, poverty, and oppression.  Sudanese people were for the first time very vocal on their natural rights and recognized the collective power they held which would enable them not only to overthrow the existing dictatorship but also assist them in deciding on the future of their country.  

The thirty years of Muslim Brotherhood dictatorship was not only devastating to the Sudanese people, but it also destroyed almost every element of civil society and civic administration in Sudan leading to weak political, legal and educational systems consistent with the Brotherhood ideology.

In terms of Sudan’s national legal system it has been significantly altered to fit the Brotherhood ideology with Sharia law being the prominent and primary law in Sudanese society. Based on the nature and scope of the crimes committed in certain regions such as Darfur; the Sudanese legal system as it stands would in its current state be incapable of addressing crimes of such a magnitude. From the crimes codified and criminalized there is no mention of the crimes of genocide, crimes against humanity or war crimes in the Sudanese legal system leaving no space and indication in the existing legal system on how to address these grave crimes. The legal system in other words would therefore be incompetent and unable to guarantee the fundamental rights of both the victim and defendant. For example problematic issues would arise as to the integrity of judges, transparency and the feasibility of ensuring a robust and fair criminal trial. 

Future Transition and Hope in the Country

Following the ousting of Al Bashir in April of 2019, Sudan embarked on a transition to civilian rule over period of 39 months.  The current transitional government has been mandated through a Constitutional Declaration to reach a comprehensive peace agreement and to deal with the numerous conflicts and systematic problems within the county. Also there has been provision made for an independent commission on transitional justice to investigate the issues thoroughly. Currently there has been criticism and divergent views on how to achieve justice in Sudan and progress has been slow in developing a robust transitional justice mechanism capable of adequately addressing justice concerns in the country. In order to ensure for a robust and adequately functioning transitional justice mechanism past experience from other transitional justice contexts dictates and reveal that within the framework of such a mechanism prosecutions are critical. Aligned with effective prosecutions local justice initiatives that resonate with the local population must be capitalized on for legitimacy and maximum purpose. Additionally capacity building and the strengthening of national institutions remain critical as well as recognition of the relevance of truth telling and reconciliation processes. In achieving such a model it is incumbent upon those driving such a process to have the political will and a measure of independence to see an adequate level of justice done. It is only with these elements in place that true freedom; peace and justice may be achievable for the people and survivors in Sudan.

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.

 

 

The Blame Game: The ICC, UNSC or States Parties?

Over the last couple of years, the International Criminal Court (ICC) has been criticised as biased, selective, and has been queried about its targeting of only weaker States, such as African States. The purpose of this blog is to address the question viz. what are some of the current problems or tensions underlying the failure of states parties to cooperate with the ICC in good faith as enunciated and expected under the Rome Statute? This blog piece starts by assessing the reasons behind the failure or the unwillingness of some States parties to cooperate with the Court as stipulated in the Rome Statute. Furthermore, part of this analysis will explore the tension between the Court and African States regarding cooperation.  

The Court has often reiterated that it is a judicial entity and not a political body in any sense. For instance, in 2006, former president, Philippe Kirsch, of the Court publicly stated that "there is not a shred of evidence after three-and-a-half years that the Court has done anything political. The Court is operating purely judicially". However, some argue that in the context of the political concept of a friend-enemy dichotomy, the Court has used this dichotomy as a weapon in political struggles. The Court has jurisdiction over the most serious crimes of concern, and as such the Court labels some suspects as the enemies of mankind, whilst others who cooperate with the ICC they are portrayed as the friend of humankind. Furthermore, the Court has provided the opportunity to label certain political actors as not merely its enemies but as the abusers of universal norms and the enemies of mankind.

Moreover, one of the major criticisms has also been about the selectivity of situations to prosecute. Some scholars argue that most of the cases investigated by the Court has been selected by the prosecutor based on his or her discretionary power, except the situations of the western region of Sudan-Darfur, and self-referral situations, such as Uganda, Mali, and Congo as well as Central Africa. Since the Prosecutor does not have the obligation to accept a self-referral, it is equivalent to the situation selected by prosecutor, as in the case of  Kenya. The issue of independence of the prosecutor has been questioned, due to the fact that that the Office of the Prosecutor has mainly focused on African cases and overlooks other international crimes committed in different parts of the world such as Israel, Iraq or Afghanistan and others.

In this regard it would be reasonable to distinguish between the Court as an independent entity and the prosecutor as an individual with their own ambitions and perspectives. One might argue that the prosecution has the discretionary power, and thus, such power could be politically misused. In effect, the exercise of the prosecutorial discretionary power might often be associated with political considerations. However, it does not change the fact that there remains a distinction between the Court as an entity and individuals in persons. For instance, the former AU commission chairperson Jean Ping coined this well when he said, “frankly speaking, we are not against the ICC. What we are against is Ocampo’s justice”.

It is evident that there is a moral ambivalence in international politics and the Court is not an exception in this regard. Behind the creation of the Court, there have been genuine forces tirelessly working and hoping for a just and more balanced world. Furthermore, politicians are the same whether Europeans or Africans; they may cooperate with the Court whenever it serves their interests and similarly can turn against the Court when it proves to be not in their favour. For instance, one may think of the decades of work that has gone into the establishment of the International Law Commission, the advocacy efforts NGOs in support of the Court, and the intellectual legal debate that resulted in the Rome Statute. There is no doubt that the content of the Statute is one of the greatest achievements in international legal history.

In conclusion, although criticisms against the Court are important, it should be borne in mind that the Court is not operating in isolation. The Court significantly impacts the field of international law and itself is impacted by the failure of the international community particularly states to cooperate with it in every instance. For this reason, the lack of enforcement mechanisms is something that the whole international legal order struggles with. The possibility of armed conflicts ending in the near future seems remote, and if history teaches us one lesson it is that at the end of every armed conflict the international community is either left powerless and thus seemingly  indifferent. It is imperative that the deterrent effect of the ICC is not diminished or downplayed in order for justice to prevail.

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.

 

 

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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.

Conclusion:

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.