Lawyers blame ICC for increasing disregard for its arrest warrants
The senior lawyers who expressed views on the isssue were reacting to the drama in South Africa, where Sudan’s president, Omar Al-Bashir recently defied the country’s court order, barring him from leaving the country until the application for his arrest was heard and returned to Sudan.
A South African High Court had last Sunday issued an order, calling for the authorities to prevent president Al-Bashir, who was in South Africa for the African Union (AU) summit from leaving the country because of the charges against him at the ICC.
ICC had in March 2009 issued a warrant for the arrest of Al-Bashir for war crimes and crimes against humanity. He is suspected of being criminally responsible, as an indirect co-perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur in Sudan. He is alleged to have masterminded the murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians and pillaging their properties.
The senior lawyers who spoke to The Guardian are Prof Yemi Akinseye-George SAN, Adekunbo Okeaya-Inneh SAN, Ebun Olu-Adegboruwa, Charles Lambo and an Abuja based legal practitioner, Noah Ajare.
Akinseye-George said: “Under Article 27 of the Statute, a Head of State or other officials of government who commits a crime within the jurisdiction of the ICC loses his or her immunity and can be prosecuted by the ICC.
“This idea of absence of immunity for Heads of State accused of international crime is not new. Similar rule was recognized following World War one in the Treaty of Versailles, and after the Second World War in the charter of the Nuremberg Tribunals.
“Under Article 29, perpetrators of crimes covered by the Statute can still be prosecuted by the ICC regardless of the number of years that have elapsed between the crime’s commission and the indictment.”
He pointed out that the weaknesses of the ICC include its inability to arrest indicted persons without the assistance of states, citing the case of Al-Bashir who has long been indicted by the court. According to him, the ICC still depends on the cooperation of sovereign states to effect arrest of alleged offenders.
His words: “It is noteworthy that the ICC has so far only been able to indict accused persons from weak States notably African states. Individual perpetrators of serious crimes against humanity like former Presidents of some powerful States who invaded other countries have escaped indictment.
“That’s probably because the ICC depends mainly of the financial support of the rich countries.That’s not to say that there’s no justification for the indictment by the ICC of several African perpetrators of crimes against humanity including the current president of Kenya.
“As a member state of the ICC statute, South Africa should not have welcomed President Al-Bashir to its territory but once upon its territory South Africa should have handed him over to the ICC to account for the egregious crimes against humanity he committed in Darfur.”
He noted that the fear of indictment by the ICC is the beginning of wisdom on the part of Africa’s dictatorial regimes and others who have a penchant for human rights violation with impunity. “At least two former African Heads of state are currently serving jail terms under international law. I believe the fear of indictment was one of the factors that made former President Goodluck Jonathan to quickly concede defeat in the 2015 Presidential Elections. If he had not and violence had erupted leading to mass murder, he and his key ministers would have had to face the ICC. The ICC is an ingenious legal device for bringing to book powerful leaders who subjugate domestic legal systems to their whims and caprices.
“Powerful individuals who cannot be held accountable by weak domestic legal systems can be brought to account by the ICC. That’s what is playing out in the case of Al-Bashir. A whole President running about like a fugitive. He cannot escape trial forever because there is no prescription or limitation time under the ICC Statute. If he is sure that he has no case to answer let him surrender to the ICC for his trial. His current attitude is an admission of guilt”, Akinseye-George declared.
For Okeaya-Inneh SAN, the problem with the ICC is effecting the execution of its orders. He said that the group’s warrants appear more political than legal. “You have for instance, countries like Canada and USA have not signed up to the statute of ICC codes. That makes it easier for people to say that it is all political – that it is international politics. But that is not to say that what happened in South Africa is good, because once there is a court order, it has to be obeyed”, he said, insisting that it has become a mixture of international law and politics.
He said: “No action has been filed to my knowledge against any European head of state. Even if you file action against those European heads of states, some of those countries have not signed up to ICC. So, they will not be bound. Once there is an international warrant of arrest against him, there is that possibility that he would be arrested once he leaves office.”
The Lagos human rights lawyer, Olu-Adegboruwa said since the warrant of arrest was issues against the Sudanese leader, it has been a cat and mouse game for the ICC and Sudan. He stated that Al-Bashir’s visit to South Africa was a golden opportunity.
His words: “Most African nations are signatories to the ICC protocol and thus they have a sacred duty to promote its goal and visions. It has become increasingly difficult to get African Nations to cooperate with the ICC, right from the case of President Nhuru Kenyatta of Kenya. The common view is that of a sense of persecution against African nations, citing cases of Israel in the Gaza Strip, America in Guatemala Bays, the progroms in Syria, Afghanistan and even recently, Yemen, where no warrant arrest has so far been issued by the ICC.
“Once we have signed the ICC protocol, we have a duty to obey all lawful processes emanating from the ICC. Any complaint of perceived persecution should be channeled directly to the ICC, as a body or indeed the United Nations.
“It is against this backdrop that the action of the South African government, in allowing Al-Bashir to flee South Africa, while the court proceedings for his extradition was pending, is totally unfortunate. A nation should not work to undermine its own municipal judicial system, in order to please a visiting Head of State. In this regard, there is no way that the South African government can absolve itself from complicity, in the recent escape of Al-Bashir.”
He suggested that the AU should have acted promptly to prevent the escape of Al-Bashir, in order to salvage the collective image of the entire continent. According to him, the charges against Al-Bashir before the ICC are all still within the realms of unproved allegations, which he is entitled to respond to and disprove, before the ICC and not to stay put in Sudan. “But to outrightly embark upon a wholesome blanket of the ICC by the African Union would appear to be shielding leaders from accounting for the atrocities committed while in power.
“The South African government should as a matter of urgency institute a judicial commission of inquiry into the circumstances leading to the escape of Al-Bashir from South Africa. In particular, the Minister of the Interior or Home Affairs, should be made to give account for the event that has clearly brought odium, not only to the judicial process in South Africa, but the entire continent”, he declared.
On his part, Ajare said it is his view that African countries believe that the arrest warrant on the Sudanese President is an attempt to frustrate the African leaders. He said the African leaders believe the warrant of arrest by ICC amounts to continuation of colonial influence.
“During the international conference last year, he came down for the conference and Nigeria refused to hand him over . Now African countries and African Head of States see ICC as a Western agenda to checkmate and frustrate African leaders and to mould them the way they like . So , in that perspective they think it is the continuation of colonial influence legacy .
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