IJCentral: International Justice Central

January 2, 2011 (KHARTOUM) – The former Qatari justice minister Mohammad Najib al-Nauimi called on the Sudanese president Omer Hassan Al-Bashir to accept being tried by the International Criminal Court (ICC) in Khartoum.

In an interview with the Saudi-based ‘Huwa wu Hiya’ magazine published on Thursday, al-Nauimi warned that Bashir could face the same fate of the late Iraqi leader Saddam Hussein.

Al-Nauimi, who was on Hussein’s defense team, called on the Sudanese leader to invite ICC representatives to visit Khartoum and investigate for themselves the allegations leveled against him and conduct the trial there.

“If the court [ICC] refuses then this will be a slap to the parties standing behind the calls inciting to overthrow him [Bashir]” he said.

The Qatari lawyer said that the United States after being assured of defeat in Iraq ruled out military intervention to oust Bashir and instead is using the ICC to remove him and bringing him to an “unfair” trial.

The U.S. is not a member of the ICC but in recent years have warmed up to it and indicated it could join in the future.

If the Sudanese president rejects the proposal he may end up being sentenced to death like Saddam in light of the charges against him, he added.

The Hague tribunal does not impose the death penalty on suspects who are convicted and life sentence is the maximum penalty allowed under the ICC Statute.

In 2008 al-Nauimi offered to represent Bashir before ICC after its chief prosecutor presented the case to the judges.

The ICC indicted Bashir in March 2009 for alleged war crimes and crimes against humanity, and in July 2010 on charges of genocide, relating to atrocities committed by Khartoum’s forces in Darfur.

The warrant has places restrictions on his travel and forced him to shun several regional and international events.

Arab and African states have rallied behind Bashir and called on the UN Security Council (UNSC) to invoke Article 16 of the court’s Statute to defer the warrant for a minimum of 12 months that can be extended indefinitely.

source: Sudan Tribune

Although International Criminal Court prosecutor Luis Moreno-Ocampo has planned his game skilfully and intelligently, it will not all be smooth sailing for him.

And as the old Scottish poem goes, “the best laid plans of mice and men often go awry”, Mr Moreno-Ocampo has some challenging hurdles ahead that could conspire to see the suspects acquitted or the Kenyan case thrown out summarily.

One of these is Justice Hans-Peter Kaul, a German judge, international law scholar and a former diplomat. He has served as Justice at the International Criminal Court in The Hague since March 11, 2003.

In March 2009, he was appointed vice-president of the court. He has been a long-time supporter of the idea of a permanent international criminal tribunal as a venue to try individuals for crimes against humanity that states are unwilling or unable to try themselves.

Justice Kaul is assigned to Pre-trial Chamber 2 where the Kenya case is being heard. He does not believe Mr Moreno-Ocampo has a case and even voted to deny him authority to commence an investigation.

His views on the Kenya case are strongly against ICC involvement and he is unlikely to change his mind. If he remains opposed, Mr Moreno-Ocampo’s chances are 50:50 since there are three judges of the Chamber.

The other two could follow Justice Kaul’s views this time.

Mr Moreno-Ocampo has to present his case anew to the three judges. It is possible that one or both of the other judges might see the case in a different way when looked at after the investigation.

According to Justice Kaul the Kenyan case, though serious and yearning for justice, does not warrant the intervention of the ICC at The Hague. He believes accepting the Kenyan case would result in a gradual down-scaling of crimes against humanity to ordinary serious crimes. This would infringe on state sovereignty and stretch the scope of ICC’s intervention beyond limit.

“This might turn the ICC, which is fully dependent on state cooperation, into a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility,” he says.

Another hurdle is the higher standard of proof required. When he went to court to seek authority to start investigations, Mr Moreno-Ocampo had to satisfy a very low standard of proof. He was only required to show “a reasonable basis to proceed with an investigation”.

As the judges said, it is the lowest standard provided for by the Rome Statutes. The stage he is now at, where he wants the suspects to be summoned, requires a higher standard of proof. He is now required to show the Pre-trial Chamber that “there are reasonable grounds to believe the (suspect) has committed a crime within the jurisdiction of the court”. And this standard will go on rising until the trial where it is “beyond reasonable doubt”.

The Government of Kenya or the suspects can challenge the admissibility of the case. The issue of admissibility of the Kenyan case has always been a contentious one and has seen the ICC judges fail to agree. It will now arise for the second time.

Article 19 of the Rome Statutes gives a person to whom a summons to appear has been issued the right to challenge admissibility of the case. The government could also seek to have the issue of admissibility fully heard and determined. Since all of Mr Moreno-Ocampo’s appearances till now have been ex-parte, new submissions by the government or the suspects, or both, could tilt the balance against him.

The government can also appeal to the United Nations Security Council for deferral of the prosecution. Under Article 16 of the Rome Statutes, the United Nations Security Council can defer a prosecution before the court for a period of 12 months, which is continuously renewable. If Kenya gets UN support to set up a local tribunal, then The Hague trials can be put off indefinitely.

Unfortunately, this will require the assent of the United States, which is very critical of Kenya’s commitment to reform.

The US has a veto power at the UN and might shoot down any resolution meant to give Kenya room to wiggle out. The US is, however, known for putting its strategic interests first and a beneficial diplomatic trade-off would succeed in getting its concurrence. It would, however, cost Kenya an arm and a leg.

Another hurdle is that Mr Moreno-Ocampo’s term is coming to an end. Sworn in on June 16, 2003, his term expires on June 16, 2012, as the Rome Statutes provide that he serves for nine years and is not eligible for re-election.

He therefore has only one-and-a-half years to deal with the Kenyan case. Though this may not necessarily be favourable to the suspects, it is very unlikely that Mr Moreno-Ocampo will lead the prosecution of the Kenyan cases beyond the stage he is now dealing with.

What may assist the suspects is the possibility that come the election of the next prosecutor, African countries will try to influence the choice for a person who is more sensitive to African realities and the sovereignty of African states. If the Kenyan case will not have gone very far, such a prosecutor may consent to the case being referred to a local tribunal.

Mr Mwangi is an advocate of the High Court of Kenya

source: The Daily Nation

The New Year is knocking and its highlights would include how President Kibaki handles pressure by Parliament to pull Kenya out of the International Criminal Court (ICC) protocol.

This is because though Parliament has made clear its intention to get Kenya out of the Rome Statute, MPs have also given the President, whose signature is needed to accomplish the task, 60 days to start the process or they take unspecified action against him.

The ICC headache to the President also manifests itself in the fact that should the six prominent Kenyans listed as post-election violence chief suspects be indicted in the next few weeks, he will also have to take the hard decision of handing them over, especially two of his ministers and one on suspension over an unrelated issue.

Though the President was quick to dismiss the prospect of the public officials and ministers mentioned being asked to step aside until they are cleared as premature, he still will have to make the ultimate decision on whether they should do so.

Kibaki also has to ensure the implementation of the Constitution remains on course and is free of political interference.

Yesterday he appeared to be on track when he signed into law the three Bills establishing Commission on Implementation of the new Constitution, Revenue Allocation Commission and the Judicial Service Commission.

Implementation of the Constitution starts working by the start of the new year and ensure it gets the co-operation it requires to fast-track legislations to anchor the new laws.

But it is on the ICC matter that Kibaki probably finds himself in a difficult position. Parliament has already passed a Motion setting the stage for Kenya’s withdrawal from the Rome Statute. The difficulty arises from whether he should listen to Parliament and write to the UN secretary general or ignore his MPs’ demand.

If he chooses to ignore Parliament, he would have to contend with the anger his action would excite among MPs and even his close ministers, who voted for the Motion moved by Chepalungu MP Isaac Ruto.

Parliament sanctions

This week, MPs from his PNU side demanded he should write the letter within two months or face sanctions from Parliament. The MPs did not say what type of sanctions they have in mind but the leverage they have against Kibaki could include making it difficult for Government to pass Bills through Parliament.

Should Kibaki go ahead and write to the UN, he would have to be ready to deal with the internal ramifications of his actions and perception he is fanning impunity.

Unlike Prime Minister Raila Odinga who has stated he does not support the withdrawal from ICC, Kibaki is yet to make his position known. But his statement on December 16 when ICC chief prosecutor Luis Moreno-Ocampo named the six suspects he wants tried for crimes against humanity showed ICC had ruffled him. MPs could also have been emboldened by Kibaki’s perceived displeasure with Ocampo’s finality.

If Kenya withdraws from the Rome Statute, international reaction would not be favourable. Last week, 12 envoys from the EU advised Kenya not to withdraw from the ICC.

But within Africa, informed sources reveal if Kibaki withdraws Kenya from the ICC, he could open a floodgate of such actions from other African countries that signed the statute.

The Vice Chairman of the AU Commission, Mr Erastus Mwencha, said AU’s position is African should strive for home grown solutions to end problems affecting it. “It is in their own interest they do that,” he added.

He said he was not aware if Kenya had asked the AU to intervene in the issue but revealed the AU headquarters is closely watching the events between Kenya and ICC.

An informed source who works in ruling coalition also revealed some senior officials in Government are more inclined to have AU take up the Kenya case at the UN — including asking the Security Council defer the Kenya case — rather than withdrawing from the ICC. “That channel will soon be pursued, given Kenya has already shown its displeasure with ICC,” predicted Ndaragwa MP Jeremiah Kioni.

Act on recommendations

Some MPs vow they would forgive Kibaki if he does not start the process within the next two months. Usually when a Motion is passed in Parliament, the Executive is given two months within which it is supposed to act on the recommendations of MPs.

In case of failure, Implementation Committee of the House would report back to MPs on the Executive’s refusal to act on the recommendations.

Kigumo MP Jamleck Kamau, who chairs the Implementation Committee, says: “The law is very clear Parliament does not act in vain. We expect the President, who has been in Parliament long enough, to understand the rules better to act. If he doesn’t within the mandatory 60 days, we will report to the House for a next step of action,” warned Kamau.

He said majority of MPs support the move and, “we will have our way… We will wait for the President to either act or not within the 60 days as per the Standing Orders, if nothing is done, then we have many options which we cannot divulge now”.

Pressure from MPs

Assistant Minister Kareke Mbiuki warned MPs could “scuttle any Government Bills which may come to the House”.

But Assistant minister Langat Magerer termed the push “an exercise in futility… We can not alienate ourselves from the rest of the world because of a few who want to defeat justice”.

Chepalungu MP vowed Parliament would apply pressure on the Executive. “We are determined and nothing will deter us…it will be pressure, pressure and more pressure until we free our beloved country from ICC,” declared Ruto.

Konoin MP Julius Kones said the Government has no choice but to implement Parliament’s decision, adding that “the PM’s action is a confirmation that he may have been involved in manipulating the investigations and it is dishonest of him to fault MPs from outside Parliament”.

source: The Standard

Prime Minister Raila Odinga says there is still a possibility of withdrawing the trial of the six post election violence suspects from the International Criminal Court.

Raila assured a delegation of at least 1000 leaders from Rift Valley province who visited his Bondo home that the country could still convince ICC to hand over the cases to local courts if a local tribunal is set up.

He expressed fears that an intended move to withdraw the country from being a signatory of the Rome statute was futile since the international court would still pursue pending cases irrespective of the membership status of a country.

“Article 19 of the Rome Statute enables a country to take over cases from The Hague as long as they establish a local tribunal to undertake the trials” he said.

Odinga however faulted a section of leaders now crying foul over The Hague process for rejecting a bill meant to establish a local tribunal and now shifting blame to wrong quarters on sensing their mistake.

” We tried to push for a local tribunal for the trials in vain even after the ODM parliamentary group and the executive committee endorsed the proposal but some of our party membes turned their back on us when we reached the floor of the house” he added

His sentiments were echoed by Wildlife minister Dr. Noah Wekesa who spoke in Kitale during a funeral of his elder brother.

The Premier at the same time censored a section of leaders from Rift Valley for propagating falsehood to gain cheap political mileage and cautioned residents to be wary of such oves as the country approached the 2012 general election.

The visit at the Premier’s Opoda farm saw elders from the Kalenjin and the Luo communities resolve to work closely for the mutual benefit of the two communities.

At least 12 members of parliament including three cabinet ministers graced the occasion.

source: Kenya Broadcasting Corporation

Ever since the prosecutor of the International Criminal Court identified six prominent Kenyans he is targeting for indictment, Kenya’s political class has been exploring ways to extricate the country from the court. Last week, despite the protests of human rights activists and a number of mostly European governments, the Kenyan parliament overwhelmingly passed a resolution calling for the country to withdraw from the court.

By itself, that measure has little effect. The Kenyan government itself would have to formally notify the court of its intention to withdraw from the Rome Statute, which it has not done (and may not). Moreover, the Rome Statute provides that a withdrawal will not take effect for one year and will, in any case, not affect ongoing investigations. The ICC is very unlikely to abandon the ongoing investigation, which is the first initiated by the prosecutor himself rather than a member state or the UN Security Council.  Kenya’s prime minister, at least, appears to understand that even formal withdrawal probably won’t short circuit the process. 

But in the broader sense, the opposition of Kenyan lawmakers matters.  It increases the chances that the Kenyan authorities will actively impede the investigative work still to be done and oppose the enforcement of formal arrest warrants.  As important, it sharpens the already pronounced animosity between African leaders and the court. During the parliamentary debate last week, key Kenyan officials openly endorsed a neocolonial interpretation of the court. “It is only Africans from former colonies who are being tried at the ICC,” one minister was quoted as saying. “No American or British will be tried at the ICC and we should not willingly allow ourselves to return to colonialism.”

That rhetoric resonates on many parts of the continent. And if Kenya does become the first member country to leave the court, its move could trigger a broader exodus in Africa.

source: Foreign Policy

Now that Prosecutor of the International Criminal Court Luis Moreno-Ocampo has released the names of the Hague Six, are there any surprises?

As for those deemed to be most responsible — against whom he has applied for summons to appear, again there are not many surprises.

To be frank, the most politically important names (in the sense of those with expressed aspirations for the next general election) have acted in a manner indicative of their expectations of the Prosecutor’s move.

Most notably through their documented (publicly and otherwise) efforts to track down and either bribe, otherwise coerce or discredit those they believe to be the ICC’s witnesses.

The only surprises are perhaps those from the bureaucracy and the private sector.

The statistics about the violence are still not widely accepted — particularly the fact that the Kenya Police and the Administrative Police were responsible for no less than a third of the deaths that occurred.

What remains to be seen is, of course, whether he has the evidence to sustain his applications and move those names successfully to trial — as well as to successful conviction.

And too, how not so much Kenyans, but Kenya’s bureaucracy and politicians, will react.

In short, whether or not the much-vaunted willingness to co-operate with the ICC, will continue to hold.

The Prosecutor’s applications have touched on those carrying the ethnic-political succession mantles of both the Gikuyu and the Kalenjin.

They have also touched on the person deemed to be the heart of the current presidency — without whom, nothing moves, neither bureaucratically nor politically.

Will they allow due process to pertain? Or will they — as the frenzy of activity of last week suggests — do all they can, however ill-considered, to stop the turning of the wheels of justice?

Some of their efforts have clearly come too late to be useful — such as the sudden resurgence of interest in the Special Tribunal initially recommended by the Commission of Inquiry into the Post-Election Violence.

Some of their efforts are, quite simply, ludicrous in their shortsightedness — such as the idea that Kenya should withdraw from the Rome Statute.

But all their efforts point to the same thing. The ethnic-political blocs of every persuasion and the bureaucracy are facing what they’ve never been forced to face before.

A problem that simply will not go away. An insistence on justice that will not be fobbed off with inquiries that trickle off into nothingness.

A demand for personal accountability that cannot be shoved under the carpet of unnamed, unashamed state responsibility.

No wonder they are shocked.

This has, quite simply, never happened before. And they do not know what to do other than what they have always done.

Which is to get all conspiratorial and try to get the ethnic-political troops behind them.

It’s the old arguments about external interference, foreign enemies and plots against their supposedly communal political interests all rolled into one.

It would be quite funny — if it were not so sad. It would be quite funny — if it were not so starkly evident from their antics just how little the victims and survivors of all of this matter to them.

Because of all this, no matter what happens with the cases as we go forward, the Prosecutor has done us a favour as a nation.

No matter what happens with the cases, something has been broken by last week’s announcement.

And something has irrevocably shifted. Justice is possible.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

source: The East African

Last week, after the prosecutor of the International Criminal Court charged six senior Kenyan officials with orchestrating widespread violence following the 2007 national elections, President Obama rightly called on all Kenya’s leaders to “cooperate fully” with the court.

Similarly, declaring that “there has to be accountability,” Obama called on Sudan to cooperate with the court after it accused President Omar Hassan al-Bashir of Sudan of genocide in Darfur in July.

To its credit, this U.S. administration has repeatedly affirmed the centrality of international justice to U.S. foreign policy. But many wonder at the apparent disconnect between American support for justice abroad and Obama’s determination to “look forward not backward” at home.

Resistance to judicial scrutiny of post-9/11 U.S. government abuses, from torture to extraordinary rendition to unlawful surveillance, has made the president’s solemn exhortations to others ring hollow, and it has undercut the credibility of U.S. aspirations to global leadership on human rights.

This month’s WikiLeaks disclosure that the Bush administration pressured Germany not to pursue 13 C.I.A. operatives suspected of involvement in the unlawful 2003-2004 abduction and mistreatment of Khaled el-Masri, a German citizen of Lebanese descent, is yet another reminder that the U.S. must change course. And Masri’s pathbreaking lawsuit before the European Court of Human Rights offers a timely opportunity for Washington to do just that.

As is now well known, Masri was seized by security officers in Macedonia on Dec. 31, 2003, while crossing the border by bus from his home in Germany. He was detained incommunicado for 23 days, during which time he was threatened, interrogated and denied permission to contact a lawyer, a consular officer or his wife. On Jan. 23, 2004, he was handcuffed and blindfolded, driven to Skopje airport and turned over to the C.I.A.

Told he would be medically examined, Masri was instead severely beaten. His clothes were sliced from his body and his underwear forcibly removed. He heard the sound of photographs being taken, he was thrown to the floor, his hands were pulled back and a boot was placed on his back. A firm object was forced into his anus.

With chains attached to his wrists and ankles, Masri was flown to Kabul, Afghanistan, where he was locked up for more than four months in a secret prison known as the “Salt Pit.” During this time, he was beaten and kicked, force-fed following a 27-day-long hunger strike and denied medical care. He was never charged or given access to his family or German representatives.

On May 28, 2004, long after U.S. officials knew they had the wrong man, Masri was flown in a C.I.A.-chartered aircraft to a military airbase in Albania, then driven several hours in a car, dumped on the side of the road and instructed not to look back.

After meeting with Secretary of State Condoleeza Rice in December 2005, German Chancellor Angela Merkel declared that the U.S. government had admitted that Masri had been “erroneously taken.” Official inquiries by the Council of Europe, the European Union, and the German Parliament have all pointed to U.S. involvement. Nonetheless, Washington has never publicly acknowledged its role in Masri’s mistreatment.

Instead, senior U.S. officials have persistently denied responsibility and obtained dismissal of Masri’s attempts to secure judicial redress in U.S. courts on the grounds that “state secrets” precluded consideration of his claims.

In 2009, represented by my organization, Masri filed a complaint in Europe’s highest court against Macedonia for its part in the affair. Last month, the court confirmed that this case will go forward.

The Masri case provides the United States a chance to back up President Obama’s accountability rhetoric with substance. Although the U.S. is not a party to the proceedings, it may assist the court by acknowledging that Masri’s rendition was a mistake and providing information about what happened.

There are many good reasons for the U.S. to use the case to signal a new direction. Masri was victim of a practice — extraordinary rendition to torture — that the U.S. has since repudiated.

The European Court is a symbol of another time in which governments recommitted themselves to the rule of law after having gone astray. Most important, we can’t preach justice to others without practicing it ourselves.

James A. Goldston, executive director of the Open Society Justice Initiative, served as coordinator of prosecutions and senior trial attorney in the office of the prosecutor at the International Criminal Court.

source: New York Times

The international criminal court has proved one of the most controversial international institutions since its creation in 2002, drawing fire from some for its exclusive focus on Africa, and accused by others of pursuing the policy objectives of America and Europe.

But America has also been hostile to the court, refusing to join it for fear its own citizens could be put on trial for war crimes. The cables reveal American preoccupation with the personalities in the court and an attempt to discern their views on Iraq from the outset.

One cable, sent in July 2003, three months after Luis Moreno-Ocampo was elected as chief prosecutor, offered an “early glimpse” into his stance and reveals American unease about the possibility that he could pursue cases over British actions in Iraq.

“Less clear are [Ocampo’s] views on Iraq,” the cable states. “Ocampo has said that he was looking at the actions of British forces in Iraq—which … led a British ICTY prosecutor nearly to fall off his chair.”

“Privately, Ocampo has said that he wishes to dispose of Iraq issues (ie. Not to investigate them.)”

The cables also attempt to cast off early remarks about Iraq by Ocampo – who is from Argentina – as a language issue.

“Some Embassy contacts also suggest that Ocampo’s mediocre English skills may have given his public remarks a less nuanced … tenor than intended,” the cable states.

In another cable, the Americans described Ocampo’s estimates of loss of life in Darfur, part of the basis on which he has indicted Sudanese president Omar al-Bashir for war crimes, as “imaginary numbers”.

Although America’s hostility to the court has weakened considerably under President Obama, with the country now adopting a policy of “principled engagement” and occupying observer status, the cables still show American resistance to any expansion of the court’s role.

America was strongly against “crimes of aggression” being added to the list of those within the court’s jurisdiction. The crime, defined as one “committed by a political or military leader which, by its character, gravity and scale, constituted a manifest violation of the [UN] Charter”, was adopted by members of the court in June.

source: The Guardian

Speculation that Omar al-Bashir siphoned $9bn in oil money and deposited it in foreign accounts could fuel calls for his arrest.

Omar Al-Bashir, the Sudanese president, has siphoned as much as $9bn out of his impoverished country, and much of it may be stashed in London banks, according to secret US diplomatic cables that recount conversations with the chief prosecutor of the international criminal court.

Some of the funds may be held by the part-nationalised Lloyds Banking Group, according to prosecutor, Luis Moreno-Ocampo, who told US officials it was time to go public with the scale of Bashir’s theft in order to turn Sudanese public opinion against him.

“Ocampo suggested if Bashir’s stash of money were disclosed (he put the figure at $9bn), it would change Sudanese public opinion from him being a ‘crusader’ to that of a thief,” one report by a senior US official states. “Ocampo reported Lloyds bank in London may be holding or knowledgeable of the whereabouts of his money,” the cable says. “Ocampo suggested exposing Bashir had illegal accounts would be enough to turn the Sudanese against him.”

Lloyds responded by saying it had no evidence of holding funds in Bashir’s name. “We have absolutely no evidence to suggest there is any connection between Lloyds Banking Group and Mr Bashir. The group’s policy is to abide by the legal and regulatory obligations in all jurisdictions in which we operate.”

Details of the allegations emerge in the latest batch of leaked embassy cables released by WikiLeaks which reveal that:

• US officials regard European human rights standards as an “irritant”, criticising the Council of Europe for its stance on secret rendition of terror suspects.

• Diplomats believe judges in the war crimes trial of the Liberian ex-president Charles Taylor have been deliberately causing delays to ensure the only African judge is presiding when the verdict is delivered.

The cables were released as the WikiLeaks editor-in-chief, Julian Assange, accused the US of mounting an aggressive, illegal investigation against him. “I would say that there is a very aggressive investigation, that a lot of face has been lost by some people, and some people have careers to make by pursuing famous cases, but that is actually something that needs monitoring,” he told reporters outside the mansion on the Norfolk/Suffolk border where he is staying while on bail.

Assange has repeatedly asserted that he is the victim of a smear campaign. The Guardian today publishes the first full account of the allegations made against him by two Swedish women based on previously unseen police documents.

If Ocampo’s claim about Bashir’s fortune is correct, Sudanese funds being held in London banks amount to one tenth of annual GDP in Sudan, which ranks fifteenth from bottom in the UN’s index of the world’s poorest countries. Ocampo discussed evidence of the stash with the Americans just days after issuing an arrest warrant for the Sudanese president in March 2009, the first issued by the court against a serving head of state. Bashir was indicted for seven counts of war crimes and crimes against humanity last year with a further three counts of genocide added in July. Ocampo, who has never released details of the alleged funds, was severely criticised for the indictment by many in Sudan and internationally amid criticisms the move would inflame fighting in the southern Darfur region.

Despite the humanitarian crisis in Sudan, Bashir has remained popular among many others in the country, particularly those who have benefited from the oil boom brought about during his presidency. A spokesperson for the Sudanese government dismissed the claim, describing it as further evidence of the ICC’s political agenda in discrediting the Sudanese government.

“To claim that the president can control the treasury and take money to put into his own accounts is ludicrous – it is a laughable claim by the ICC prosecutor,” said Dr Khalid al-Mubarak, government spokesperson at the Sudanese embassy in London. “Ocampo is a maverick, and this is just part of his political agenda. He has failed miserably in all his cases and has refused to investigate Iraq or Gaza – he needs success and he has targeted Bashir to increase his own importance.”

“Attempts to smear not only Bashir but Sudan as a whole are well known, and are clearly linked with anti-Arab sentiments and Islamophobia,” Mubarak added.

But experts said that if confirmed, the funds could have big implications for victims of human rights abuses in the county. Richard Dicker, head of international justice at Human Rights Watch, said: “If Bashir were to be tried and convicted, these funds could not just be frozen, but used as a source of reparations for victims … [of] horrific crimes in Darfur.”

Robert Palmer, a campaigner at anti-corruption organisation Global Witness, said: “$9bn may sound like an inconceivably large amount of money for the president of Sudan to control. But we have uncovered evidence of substantial funds being held in a European bank by an oil-rich country in the past, where the head of state had a worrying level of personal control over the funds. In Sudan’s case, the figure is almost the same amount as has been transferred from north to south Sudan under the oil revenue sharing part of the comprehensive peace agreement since 2005.”

In a remarkable series of exchanges, the cables also reveal how Sudan’s mineral wealth had a direct bearing on the ICC proceedings against Bashir, as China balked at action against him that could harm its interests in the oil industry. “Ocampo said China, as long as it continues to have oil concessions in Sudan, does not care what happens to Bashir,” one cable states.

In another cable dated March 2008, a senior French official noted “growing Chinese concern about possible north-south fissures in Sudan and the possibility that its oil interests could be threatened”.

“The Chinese were beginning to see more clearly that Sudan’s behaviour towards Darfur and Chad could only increase the possibility of a north-south rupture will a possibly severe effect on China’s stake in the oil sector,’ the French are reported to have said.

In return, the Chinese expressed “puzzlement” that the French – a member of the ICC and able to influence the deferral of proceedings against Bashir – supported Ocampo’s decision to pursue the Sudanese president, given France’s oil interests in the region. “[The Chinese] observed French companies have oil interests in Sudan as well as Chad,” the Americans stated.

France ultimately supported Bashir’s indictment, but the cables suggest this was deliberately calculated to protect their oil interests. The French told the Americans they believed that firm action on Darfur was the only way to protect oil interests.

Both French firm Total and China, through affiliates of its state-owned China Petroleum and Chemical Corporation, have substantial oil concessions in Sudan, which currently produces 500,000 barrels of crude oil per day .

“It is ironic that China, which postures as a friend of the people’s in the developing world couldn’t give a damn about the suffering of hundreds of thousands of African victims in Darfur,” said Dicker. “I’m not surprised that China is putting its oil interests above the interests of humanity in seeing that these crimes of enormous concern are adjudicated, but I think it will rebound to China’s discredit,” Dicker added.Speculation that Bashir may have deposited billions in oil money in foreign accounts is likely to add to demands for his arrest and transparency in Sudan’s oil sector.“The arm of the law, when it comes to this type of crime, committed by or alleged to have been committed by heads of state or heads of government, has gotten longer,” said Dicker. “There is a long road to trial in The Hague, but what’s striking is a number of other heads of state and heads of government have wound up in court much to their surprise through often lengthy and circuitous pathways.”

source: The Guardian

The release this week of the names of the six accused in the investigation of the 2007/2008 post-election violence in Kenya marked a milestone in international justice. Speaking at a press conference in The Hague on Wednesday, Mr Ocampo summoned six top politicians and political figures, including members of both parties in Kenya’s power-sharing government. The accused are among the highest echelons of power in Kenya, with the son of the nation’s founding President Jomo Kenyatta among the named. In a list that sees not just politicians called before the court, a prominent radio journalist and former Police Chief have also been summoned.

The announcement follows the formal request by Chief Prosecutor Moreno Ocampo to the ICC judges in November 2009 for permission to open an investigation into the violence, which saw 1,200 people killed and over 500,000 displaced. In a first for the Court, the Prosecutor used his Proprio Motu powers, which allow him to open an investigation without the self-referral of a state party or under instruction from the UN Security Council. Two of the three judges approved Mr Ocampo’s request and the Office of the Prosecutor began its formal investigation in May.

In a move regarded by observers as a way of sparing the Kenyan government the uneasy task of arresting some of its own MPs, the Prosecutor has not requested arrest warrants at this stage. Rather, the six accused are asked to present themselves to the Court voluntarily, Mr Ocampo saying that they are being given an “opportunity to lead.” If the named men do not present themselves, however, or fail to comply with the conditions of their summons, Mr Ocampo has expressed that arrest warrants will be requested.

Civil society in Kenya will now be moving into overdrive to put pressure on the Kenyan government and the accused to cooperate fully with the Court. And the blogosphere has been quick to voice its concerns. The recent visit to Kenya by Sudanese President Omar Al-Bashir was seen as a sign of the government’s unwillingness to comply with its obligations as a member of the ICC. Njonjo Mue, the head of International Center for Transitional Justice’s Kenya office has warned that “Parliament must not allow itself to become captive to political forces bent on entrenching impunity”. But international justice is being heavily challenged in Kenya; immediately following Wednesday’s announcement there have been calls in Parliament for a vote to repeal the Rome Statute and withdraw Kenya from the ICC.

But with upcoming elections in 2012, and the watchful eye of the international community and foreign investors, the government must tread carefully. After all, an overwhelming eighty-five percent of Kenyans support the ICC’s presence there.

“Ocampo’s Six”

William Ruto – Suspended Minister for Higher Education and MP for Eldoret North
Joshua Arap Sang – Prominent Radio Journalist
Henry Kosgey – Minister for Industrialisation
Francis Kirimi Muthaura – Secretary to the Cabinet
Mohammed Hussein Ali – Former Police Chief
Uhuru Kenyatta – Deputy Prime Minister

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