Tuesday, July 22, 2008


ICC will find easy evidence against Bashir
Another precedent was last week set in the international criminal justice system when a sitting president, Omar el-Bashir of Sudan and one of the worst military dictators on the African continent, was indicted by the International Criminal Court to answer charges of crimes against humanity.

The ICC indictments have been politicised, radicalised in a religious sense and even scorned at by renowned scholars in the field of humanities as being lopsided. This column will not engage in these side arguments.

Instead , let’s examine the fundamentals; the merits of the evidence provided to prove a prima facie case (that on the balance of probability there are criminal legal issues that the court should determine) and therefore Bashir has to be put on his defence.

We also need to do a quick recap- Bashir is the fourth suspected war criminal to be indicted by the ICC in recent time and arrest warrants are out for the leadership of the LRA who are still at large. The question then is, will this global court have all the indicted suspects face trial in the internationally accepted spirit of according justice to the millions of civilians suffering under the dictatorships and the attendant senseless wars?

Well, let’s start by addressing the merits of the evidence available for the ICC prosecutor to prove that there is merit in the criminal charges brought against Bashir so that he is put on trial.

In order to prove that the accused person committed crimes against humanity the ICC prosecutor has got to provide relevant facts in evidence. This he/she can do by providing documentary evidence ( moving or still pictures and or satellite images).

He can also call on the victims to testify as witnesses or to record their narrations to corroborate the brutality visited upon them by the notorious, vicious Janjaweed militia armed and supported by Bashir’s regime in Khartoum.

The documented facts, as we know them, are to the effect that there has been a long running bloody civil war in Darfur region in which Bashir has been a big player. During this war about 35,000 people have been massacred and rape has been used against the unarmed civilian women– as a weapon of war to mastermind genocide in the region. In all, about 2.5 million people have been subjected to a campaign of rape, hunger and fear in refugee camps.

The criminal acts of Bashir are not only limited to southern Sudan. The brunt of his brutality has been felt here in Uganda and President Museveni has stated that he has impeccable intelligence that Bashir has on numerous occasions over a long time, armed and funded the LRA and the Allied Democratic Forces (ADF) rebels who led to deaths of thousands of people in northern and western Uganda respectively.
So, the ICC prosecutor Mr Luis Moreno-Ocampo should not have any difficulty in proving his case before the ICC panel.

The argument made by some scholars that the conflict in Darfur started in the late 70s long before Bashir assumed power in Sudan doesn’t absolve the dictator. In fact the mass slaughter took place as recently as 2003-04.

The ICC also has limitations– it can only try cases for crimes committed after 1998 when the Rome Statute, the law that governs the court, came into force. That said, it’s also pretty damn obvious that a man of Bashir’s pedigree in criminal conduct, will not turn himself in for trial. Khartoum has already rubbished and made a silly legal argument that because they didn’t sign and ratify the Rome Statute that set up the ICC, they cannot submit to its jurisdiction.

Bashir, conveniently ignores a now established principle of international criminal law-- that the ICC has unlimited global jurisdiction. This is the more reason why arrest warrants should be issued for Bashir to stand trial.

The challenge facing the efficacy (effectiveness) of international law has always been its enforceability. For instance the ICC doesn’t have a police of its own to enforce its decisions. It relies on the good will of the civil world.

But that does not mean those who commit acts of genocide and crimes against humanity should be let off the hook. War criminals and leaders who orchestrate violence against civilians should answer for their crimes.

The writer is a journalist and advocate

No comments: