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Evidently we are happy to work with Sudan’s Islamist regime as long as it restricts itself to killing its own people

It is hardly news when the red carpet is rolled out for an African trade delegation visiting London. But it is unprecedented when the delegation is led by officials whose president is wanted by the International Criminal Court on charges of genocide against his own citizens.

Since a coup brought him to power in 1989, Sudan’s President, Omar Bashir, has been ethnically cleansing Africa’s largest country of those who disagree with his Islamist ideology. Now Bashir’s regime wants closer economic ties with Britain. It is also pressuring Washington to drop economic sanctions and remove Sudan from the list of states sponsoring terror. And it wants its debt cancelled.

Why are the UK and US governments even considering the wish list of a man indicted for genocide? Because Bashir’s good behaviour is required as Sudan goes through momentous changes. Next January a controversial referendum is likely to split Sudan in two, giving the country’s main economic asset, its oil, to the new South Sudan.

As the Department for International Development and the Foreign and Commonwealth Office prioritise trade above all else, apparently there is no longer room for the protection of human rights. More than trade is at stake, however. The CIA looks to Sudan for intelligence on terrorist safe havens in nearby Somalia and Yemen, ignoring the inconvenient fact that Bashir’s regime shares a core philosophy with the Islamist militias it is supposed to be monitoring.

Many Sudanese are risking their lives to create a pluralist society, but the international community is sanctioning the actions of Bashir’s genocidal government. The UK must use its influence to hold Khartoum to the many yet-to-be enforced human rights measures in the peace deals and international conventions to which the regime is committed. Sudan’s version of political Islam despises free speech, independent thought, Jews, women, gays and, of course, moderate Islam. But evidently we are happy to work with Islamists if they restrict themselves to killing their own people.

Rebecca Tinsley is chair of Waging Peace.

source: The Independent

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In a world preoccupied by the economic recession, you might be forgiven for thinking this is not the time to be upbeat.

But that view would be wrong.

In early June world leaders, diplomats and representatives of civil society came together in Kampala, Uganda, to support the first review conference of the Rome Statute of the International Criminal Court (ICC), reaffirming their commitment to combating global impunity and achieving justice for victims of the worst atrocities - namely, crimes against humanity, war crimes and genocide.

Established by the Rome Statute in 1998, the review conference offered the first opportunity to take stock of The Hague-based ICC’s impact over the eight years since it opened for business in 2002.

With an annual budget of around e100m (£83.4m), a staff of 700 and five ongoing investigations in Africa - but with eight fugitives still beyond the reach of the judges, including one sitting head of state, and not one completed trial to its name – the day of reckoning seemed to have arrived for the ICC. But rather than lament an apparent lack of progress, leaders from every corner of the globe committed themselves to do better in support of the ’court of last resort’ they had set up in 1998 to prosecute ­perpetrators of crimes of concern to the international community where a state is “unable or unwilling to do so”.

Leaders recognised that, without the international community’s help in doing the heavy lifting by way of political, financial and logistical support in arresting fugitives and surrendering
them, the ICC would fail. So, while reaffirming that there can be no lasting peace without justice, they resolved to promote justice for the victims of unimaginable atrocities.

They also agreed, in the final hours of the conference, to adopt provisions defining the crime of aggression and conditions for the exercise of jurisdiction.

So what does the future hold for the world’s first permanent criminal court post-Kampala? The answer must surely include speedier trials, enhanced cooperation from states and more support and coordination to catalyse national prosecutions to help close the impunity gap. But to do this the ICC must get more states to join the Rome Statute and make criminal justice truly universal.

A court without trials is not a credible institution. The longer fugitives remain at large, the more damage is done to the ICC’s deterrent effect. The ICC needs to streamline its trials through tighter judicial case management in the interests of justice and efficiency. Justice delayed is justice denied.

But the greatest focus in the years to come must be on supporting national legal ­systems in undertaking prosecutions that complement the work of the ICC. As a court of last resort with a limited budget, the ICC will never be able to prosecute more than a handful of senior perpetrators. Mid- to low-level perpetrators must be prosecuted at the national level or impunity will flourish.

International organisations such as the Commonwealth Secretariat, along with civil society actors and bilateral donors committed to promoting the rule of law at the national level through capacity-building and technical assistance programmes, will be key to bringing about this reality.

Patience must be shown. Building effective national legal systems to prosecute complex crimes takes time and money. Despite this, we must not be thwarted in our collective resolve to secure justice for victims. To echo the words of UN Secretary-General Ban-Ki Moon: “The era of impunity is over, we are witnessing the birth of a new age of accountability.”

source: The Lawyer.com

Johannesburg - The criticism that the International Criminal Court (ICC) is against African countries is unfair, Judge Richard Goldstone said on Monday.

“It is unfair to say the court is being used against African countries,” Goldstone said at a lecture at the University of Johannesburg.

He acknowledged that this was a perception because of Africans appearing before the court.

The ICC has opened up five investigations into the Democratic Republic of Congo, the Central African Republic, Uganda, Kenya and Darfur in Sudan.

Goldstone said, however, this would change in the near future as individuals in Latin America were coming under investigation.

He added that the ICC only began its activities after officials in those countries declined to open their own investigations.

In the case of Kenya, the country’s parliament refused to begin an investigation into post-election violence in 2007.

“It’s a court of last resort, not a court of first resort,” said Goldstone.

He also commented on Kenya’s hosting of Sudanese president Omar Al-Bashir at a ceremony celebrating its new constitution.

Al-Bashir has been indicted by the ICC for crimes in Darfur.

As a signatory to the ICC treaty, Kenya was obligated to arrest but refused to do so.

This is in contrast, said Goldstone, to South Africa where Al-Bashir was warned not to enter the country for President Jacob Zuma’s inauguration or risk arrest.

Goldstone said that while no action could be taken against country’s such as Kenya, they did risk becoming “pariah states”.

“There is no action against countries that do not fulfill their obligations under the treaty except to become pariah states,” he said. - Sapa

source: IOL News

Investigators from the International Criminal Court (ICC) arrive in the country on Monday, amid conflicting signals from the Government on whether it will aid their work.

The ICC team begins the tough and painful task of bringing to justice the key masterminds of the 2007-2008 post-election violence that claimed over 1,000 lives.

To date, the Government is yet to settle hundreds of victims who are still living in camps for the internally displaced under deplorable conditions.

Lands Minister James Orengo says the investigators will get all the support they need when arrive in the country, even though the Government has refused a request by the ICC for copies of minutes from high-level security meetings during the period of the violence, to help in the investigations. ICC Chief Prosecutor Luis Moreno-Ocampo has indicated that he will be prosecuting two cases involving six Kenyans from December this year.

On Sunday, Orengo said: “ICC detectives will be in the country from Monday to Wednesday to probe cases involving Kenyans who sponsored or masterminded the violence that claimed about 1,300 lives and left more than 300,000 people homeless in early 2008.”

The minister assured Kenyans the Government was ready to work with the detectives and give them total support where necessary.

Orengo again attacked Justice Minister Mutula Kilonzo for claiming that Kenya does not need ICC help, because judicial system is now capable of successfully trying perpetrators of the chaos.

Revamped Judiciary

“Mutula’s remarks are his wishful thinking, and he should be ignored. The truth of the matter is that the ICC is coming for those behind the poll chaos,” said the Ugenya MP.

Orengo’s comment came a day after Mutula met former UN Secretary General Kofi Annan and appeared to back down from his earlier stand, assuring Annan that only suspects whose cases fall outside the ICC’s jurisdiction would be tried locally.

Mutula who was briefing Annan on the progress Kenya was making in implementing the new constitution, said the Government is revamping the judicial system to ensure it can adequately deal with crimes linked to the post-election violence.

He told Annan that the Government had already published a Bill to create an independent judicial service and ensure timely dispensation of justice.

“I should also point out the Kenyans’ resistance to a local tribunal in preference to the ICC is borne out of the mistrust that they have with the national justice mechanisms.

They think a local tribunal would be subject to interference and manipulation,” he said.

ICC wrote to Kenya on August 27, asking for minutes of meetings on deployment of security personnel and tackling of post election violence.

It emerged that the ICC plans to reopen investigations into the killing of over 400 Kenyans by security forces during the bloody violence.

The investigations could involve digging up graves of victims in affected areas like Naivasha, Eldoret, Turbo, Matunda, Kericho and Kisumu.

Last week, Mutula shocked the country when he was reported as saying there was no need of taking suspects to The Hague for prosecution because Kenya was now equal to the task.

But Orengo said although he supported reforms in the country’s judicial system, Kenya has no powers to stop the ICC investigations and possible arrests of suspected post-election violence masterminds.

Orengo was speaking at Kisumu’s Aga Khan Hall when he opened the Kisumu Home Expo on Saturday.

Kisumu Town West MP Olago Aluoch and Kisumu mayor Sam Okello accompanied him.

The Hague beckons

Orengo pointed said the new Constitution has incorporated all international laws ratified by Kenya as part of the country’s laws, including the ICC to which Kenya is a signatory.

Said Orengo: “After the promulgation of the new Constitution, the ICC became part of the judicial system of our country, and they are constitutionally right to deal with crimes committed during the post-election violence.”

He added: “Suspects who thought that the ICC issue has been buried should now start to prepare for Ocampo, because he will soon catch up with them.”

Mutula came under fire last week when he said perpetrators of the polls chaos would be tried locally after the reforms in the judicial system.

He added that he had published a Bill that would vet existing judges and recruit new ones, to meet international standards, adding that after this goal he would tell the judges not to admit the ICC case.

Fears had also emerged that the country was trying to influence the court based in the Netherlands to drop the Kenya case.

But in a terse statement released by Ocampo last week, he that he will be presenting the two cases without fail to the ICC in December.

Ocampo has no doubt that the case will proceed because of the support promised by President Kibaki and Prime Minister Raila Odinga.

He also supported the idea of Kenyan courts prosecuting the many cases that ICC will not handle.

source: The Standard

THE British barrister defending ex-Liberian President Charles Taylor at the International Criminal Court (ICC) has offered to represent President Robert Mugabe were the Zimbabwean leader to be brought before the tribunal which is based at The Hague in the Netherlands.

Courtenay Griffiths, a flamboyant Jamaican-born and Rastafarian-following lawyer is defending Taylor against multiple charges – including allegations of cannibalism, rape and torture – relating to a bloody conflict in the West African country of Sierra Leone.

The ebullient attorney’s swashbuckling style and use of rap lyrics during cross-examination has made him an unexpected star of the trial.

And now Griffiths, who says he “enjoy the challenge of defending those who seem to the rest of the world quite indefensible”, says he would be keen to represent Mugabe if a case was secured against the veteran Zimbabwean leader.

“I would definitely like to represent Mugabe – from a defence point of view he would be an interesting challenge. In the eyes of the world, he is a complete power crazed ogre, I would like to present another side to him,” Griffiths told a UK newspaper.

Critics insist Mugabe and key members of his inner circle should face charges for crimes against humanity committed in the country over the last three decades.

A United States-based rights group Genocide Watch recently described as genocide the killing of thousands of people in the Matebeleland and Midlands regions between 1982 and 1987.

“We call upon the United Nations High Commissioner for Human Rights to conduct a full investigation of the Gukurahundi, with the aim of establishing a mixed UN – Zimbabwean Tribunal to put Mugabe and his co-perpetrators on trial for their crimes,” the group said in a report.

However Griffiths slammed what he described as an “unbalanced” application of international law against African leaders.

“There are no fewer than five African leaders awaiting trial at the International Criminal Court,” he explained.

“How is it possible that in 2010 we have a situation where every indicted individual at the International Criminal Court is African and every investigation is, guess where, Africa?”

He said ex-British prime minister Tony Blair and former US president George W Bush should also be prosecuted for conducting an “illegal war” in Iraq.

“Look, I am not suggesting that African leaders should not be on trial, but I do think that everyone has to be equal before international law.

“Why is it that the Tony Blairs and the George W Bushes of the world are not being investigated for conducting an illegal war?

“I am a defence lawyer, but if Blair came to The Hague, I would definitely have to switch sides and do some prosecuting.”

source: New Zimbabwe

There seem to be no let up on the debate on whether the suspects of the post election violence should be tried by the local courts or by the International Criminal Court (ICC).

With Justice Minister Mutula Kilonzo having fired the first salvo by urging Kenya to have faith in locals courts, a section of the political elite now feel the ministers change of tune was suspect. According to Kilonzo the entrenchment of a new constitution will see reforms in the judiciary and the the police force, ensuring justice for the post election violence victims.

His position has since received the backing of a section of cabinet ministers with the latest entrant being information minister Samuel Poghisio who wants to Kenya to take pride in its sovereignty and have faith in its local courts.

Poghisio spaking in his Pokot backyard called on Kenyans to allow the newly reformed institutions a chance to prove themselves.

However, not all government ministers subscribe to the same school of thought.

Mukurweini legislator Kabando Wa Kabando has since dismissed the justice minister’s proposal saying the processes of setting up new institutions will not be done overnight.

Kabando maintains that “parliament in its wisdom discarded a local tribunal opting instead for The Hague”.

ICC prosecutor Moreno Ocampo has signaled his intention to have between 4-6 Kenyans face trails at the ICC.

Last month the government gave the court the go ahead to set up a base in the country to investigate the post election violence and try the perpetrators.

source: Kenya Broadcasting Company

(Tokyo) - Japan should publicly support the establishment of an international Commission of Inquiry into war crimes and crimes against humanity in Burma, Human Rights Watch and five other nongovernmental organizations said in a letter to Foreign Minister Seiji Maehara made public today.

Human Rights Watch, Human Rights Now, Burmese Relief Center-Japan, People’s Forum on Burma (Japan), Amnesty International Japan, and BurmaInfo urged Japan to support a resolution on Burma which includes language establishing a United Nations Commission of Inquiry at the upcoming session of the UN General Assembly. This move follows the March 2010 statement by the UN special rapporteur on human rights in Burma, Tomas Ojea Quintana, calling on the UN to consider establishing a Commission of Inquiry into crimes against humanity committed in Burma.

“Establishing an international Commission of Inquiry would be a significant step to end impunity in Burma,” said Kanae Doi, Japan director at Human Rights Watch. “As one of the few Asian member states of the International Criminal Court and a major Asian democracy, Japan is in the unique position to take the lead in reaching out to other Asian neighbors to join this critical movement to seek justice for Burma’s people.”

For years, the UN has documented and publicly reported on serious, widespread, and systemic violations of international human rights and humanitarian law in Burma. To date, there have been 19 resolutions on Burma passed by the UN General Assembly.

The letter states that the UN must move beyond this status quo of documenting rights violations and passing annual resolutions on the grave human rights situation in Burma. The six organizations called on Japan to play an active and leading role in supporting this international Commission of Inquiry, and to ensure the investigation covers violations perpetrated by any and all of the parties to Burma’s long-running civil conflict.

The groups state that “it is time for Japan and other like-minded states to ensure that these crimes will be subject to greater international scrutiny and take steps to halt the cycle of impunity in Burma. The establishment of an international Commission of Inquiry is an important first step.”

Several EU member states such as the United Kingdom, Hungary, the Czech Republic, and the Netherlands, as well as the governments of the United States, Australia, and New Zealand have now publicly announced their support for an international commission to investigate crimes in Burma.

Human Rights Watch also released today an extensive document on “Frequently Asked Questions” in Japanese that provides detailed explanations of various issues relating to accountability for crimes in violation of international law in Burma.

“The victims of serious international crimes in Burma deserve recognition and justice,” Doi said. “The new foreign minister Maehara should take this opportunity to assume a leadership role in bringing about human rights improvement in Burma.”

source: Human Rights Watch

NAIROBI (Reuters) - More than half of Kenyans want the masterminds of violence which followed disputed elections in 2007 tried at the International Criminal Court (ICC) despite planned judicial reforms at home, an opinion poll showed.

The Synovate poll was published after Justice Minister Mutula Kilonzo said trials at the Hague-based ICC were unnecessary as the cases could be heard in Kenya.

About 1,300 people were killed and more than 300,000 displaced by the violence in late 2007 and early 2008 which also badly hurt the region’s largest economy.

The prospect of ICC trials has struck fear into Kenya’s political class, as the state-funded Kenya National Commission on Human Rights has named several senior cabinet minsters and prominent businessmen as architects of the violence.

Political commentators said Kilonzo might have been gauging public reaction with his comments published in a newspaper on Sunday. Some cabinet colleagues rejected his remarks, arguing that the coalition government was committed to the ICC process.

“Fifty-four percent still prefer The Hague for prosecution of the perpetrators of the post-election violence,” pollster Synovate said when releasing the results on Tuesday.

“This is more than twice of those who think that the perpetrators of Post Election Violence should be forgiven (22 percent) or tried locally (22 percent).”

A Kenyan businessman has sued the International Criminal Court accusing it of operating illegally in Kenya.

Joseph Gathungu is seeking orders to stop the ICC chief prosecutor Luis Moreno Ocampo operating in Kenya because his investigations and intended prosecution are not provided for in the country’s new constitution promulgated last month.

“To allow the International Criminal Court to operate in Kenya amounts to surrender of the sovereignty of Kenya to foreigners which is totally untenable” said Gathungu in papers filed at the High Court in Kenya’s port city of Mombasa.

He also wants the court to declare ICC’s investigation and prosecutions of any Kenyans at the Hague “null and void”.

Attempts to form a Kenyan tribunal to try the suspects were defeated in parliament last year, despite public support from President Mwai Kibaki and Prime Minister Raila Odinga—the two leading candidates in the 2007 elections.

A powersharing deal brokered by former U.N. Secretary General Kofi Annan stopped the bloodshed and created Kenya’s first coalition government.

Kilonzo said Kenya’s new basic law was set to overhaul the judiciary which critics say is bureaucratic and prone to corruption.

The ICC is a court of last resort, taking on cases which cannot be tried by domestic courts or when national proceedings are not genuine. The ICC’s Ocampo expects to charge up to six suspects by the end of this year.

The poll surveyed 1,501 adults nationwide last week, Synovate said.

source: Rueters Africa

SA leads the way in standing up against war criminals

UNTIL the last 15 years of the 20th century, international criminal justice did not exist. Since the establishment by the United Nations (UN) of the International Criminal Tribunal for the former Yugoslavia in 1993, the growth and development of international justice for war criminals has grown at a dramatic pace.

The successes of the Yugoslavia tribunal and the Rwanda tribunal that followed in 1994 were sufficient to spur many nations to move towards the establishment of a permanent International Criminal Court (ICC). They also spawned the so-called mixed or hybrid tribunals for East Timor, Sierra Leone, Cambodia and Lebanon.

These criminal courts demonstrated that international criminal justice can work efficiently, that fair trials in international courts are possible and that their work advances the development of the law. The most important development has been the prosecution of gender-related crimes and especially systematic mass rape.

The Rome Treaty of 1998 established the ICC. It required the ratification of 60 states to bring its provisions into operation. Even its most optimistic supporters did not anticipate that it would take less than four years for that to happen. SA has been one of the ICC’s most active supporters and helped gain important support from other governments in our region. The ICC became operational on July 1 2002. Today, there are 113 nations that have joined the ICC by ratifying the Rome Treaty. The African region leads, with 31 ratifications, followed by every member of the European region.

This wide support for the ICC was accompanied by the unexpected reference of its first investigations by three African governments — Uganda, the Democratic Republic of Congo and the Central African Republic. The court did not seek those referrals — those governments sought the intervention of the court. The fourth situation — that of Sudan and the crimes committed in Darfur — was referred by the UN Security Council itself. Only the fifth, Kenya, has come about as a result of the p rosecutor’s initiative.

This last situation arises from the violence that accompanied the 2007 elections in Kenya and followed a recommendation from former UN Secretary-General Kofi Annan and a Kenyan commission of inquiry.

The ICC became involved only after Kenya’s parliament decided not to set up its own domestic investigation.

It thus becomes apparent that the allegation that the ICC is in some way biased against African states or was set up to deal only with Africa is unfair and without substance. In addition, the prosecutor has made clear he is investigating other situations in Latin America and the Middle East.

The ICC operates on a system of “complementarity”. This means that the court has no jurisdiction at all in any case if the government of the nationality of the suspect is willing and able to investigate and, if there is sufficient evidence, to prosecute that person. Such a domestic investigation undertaken in good faith is conclusive regardless of the outcome and will deprive the ICC of any jurisdiction in the matter. The ICC is thus a court of last and not first resort. Modern international criminal law recognises that it is more appropriate for war criminals to be investigated and prosecuted by domestic rather than by international mechanisms.

The courts of Sudan are clearly not willing or able to investigate Sudanese leaders who have credibly been found by the ICC to be answerable for the most serious crimes, including genocide. The ICC has issued arrest warrants for a number of Sudanese leaders, including President Omar al-Bashir. The governments of nations that have ratified the Rome Treaty are legally obliged to arrest those people, To its credit, the South African government warned al-Bashir that should he visit SA, he stands to be arrested and handed over to the ICC. That is an obligation SA undertook when it ratified the Rome Treaty. It is also its obligation pursuant to the terms of a binding and peremptory resolution of the UN Security Council when it referred the Darfur situation to the ICC.

It is a matter of deep regret that Kenya failed to live up to those same obligations when al-Bashir recently visited Nairobi. Kenya has been roundly criticised for failing to uphold its international obligations. The only body that is able to sanction Kenya for flouting its international obligations is the s ecurity c ouncil. The law is clear and what is necessary is the political will to do something about it. The s ecurity c ouncil has the power and the right to impose appropriate sanctions against Kenya. If the s ecurity c ouncil fails to take such action, its own credibility will be called into question. It would be recognising the ability of member states of the UN to flout binding resolutions of the council.

Even in the absence of appropriate action by the s ecurity c ouncil, Kenya has made itself an international outlaw and has diminished its standing in the international community. Countries that do not uphold and implement their international obligations, seriously assumed, will undoubtedly suffer other prejudicial consequences, especially in the sphere of international trade and commerce. The adherence by nations to their international obligations is an important benchmark for major nations entering into trade and other relationships.

It was because of the system of complementarity that recognises the right of nations to investigate allegations against their own citizens that the UN and the European Union called upon Israel, the Palestinian Authority and Hamas to investigate the serious findings contained in the fact-finding mission on Gaza that I headed last year. Secretary-General Ban Ki-moon also called on the parties to hold independent domestic investigations into the conduct and consequences of the Gaza conflict.

In March, the UN Human Rights Council decided to establish a panel of independent experts to monitor the independence, effectiveness and genuineness of the investigations and their conformity with international standards. That panel is being led by one of Europe’s leading international lawyers, Prof Christian Tomuschat.

To date, Hamas has launched no investigations at all. The Palestinian Authority, for its part, did establish an independent domestic investigation and its findings were recently handed to the s ecretary-g eneral. The Israeli military conducted its own investigations behind closed doors. Those inquiries have confirmed some of the most serious incidents detailed in the Gaza report. Judgment on the extent to which the parties have carried out their international obligations in this regard must await the report of the Tomuschat panel. That report is soon to be presented to the Human Rights Council.

From the foregoing, it should be apparent that international criminal justice has developed at an impressive pace in recent years. At its core is the protection of civilians during times of war. Too many millions of innocent children, women and men have died in the wars that plague our planet. For too long there has been effective immunity for the war criminals responsible. That immunity is steadily being withdrawn as many nations join the ICC. South Africans should take pride in our government having been one of the leaders in this movement.

- A former judge of the Constitutional Court, Goldstone will be giving a public lecture reflecting on International Accountability for War Crimes on September 27 at the University of Johannesburg.

source: Business Day